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Zimbabwean Seeking Court Order Compelling Chief Justice Malaba to Retire

FILE: Zimbabwean President Emmerson Mnangagwa,left, is congratulated by Chief Justice Luke Malaba after taking his oath during his inauguration ceremony at the National Sports Stadium in Harare, Sunday, Aug. 26, 2018.

The Zimbabwe Human Rights NGO Forum has filed an urgent court application seeking an order compelling Chief Justice Luke Malaba to retire within the next three days.

In a statement, Forum director, Musa Kika, said keeping Malaba in office is unconstitutional as the Constitution Zimbabwe Amendment (No. 2) Act signed into law a few days ago by President Emmerson Mnangagwa violates some provisions of the country’s supreme law adopted in 2013.

According to Kika, Malaba turns 70 on 15 May, 2021, and is due to go on retirement in terms of the provisions of the original 2013 Constitution.

He argues that the provisions under which Malaba would benefit from are also expected to extend the terms of office of his deputy as well as Constitutional and Supreme Court judges.

Kika claims that the amendment of Section 328(7) of the Constitution of Zimbabwe is null and void as a referendum is needed to limit or extend the terms of office of judges and their subordinates.

“Section 328(7) also makes it clear that any amendment to a term-limit provision does not apply to any person who held or occupied that office at the time before the amendment.”

Kika is seeking to have any purported extension of Malaba’s term of office after May 15, 2021, to be declared null and void. "... And anything Malaba attempts to do after 15 May, 2021, be equally declared to be null and void.”

Pending the appointment of a substantive Chief Justice to replace Malaba, Kika seeks to have the current deputy Chief Justice Elizabeth Gwaunza fill the vacancy in an acting capacity while the third most senior judge, Justice Paddington Garwe, becomes acting Deputy Chief Justice.

Respondents include the Minister of Justice and all 17 Constitutional and Supreme Court judges.

Responding to the application, attorneys representing the judges, Kantor/Immerman, wrote a letter to the Zimbabwe Human Rights NGO Forum director, saying “we place it on record that the application is opposed in its entirety on various grounds.”

In the letter, dated May 11 and signed by a senior Kantor/Immerman partner identified as ABC Chinake, Kika is asked to serve copies of the court application to all cited judges in their personal capacities.

The Constitution of Zimbabwe Amendment Act (No.2) allows the president to appoint and extend terms of office of senior judges. Critics say this would result in the president manipulating the judiciary to pursue his own political agenda.

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