News / Local
Malaba saga: Govt appeals to wrong court, claims MDC activists
19 May 2021 at 01:55hrs | Views
GOVERNMENT has reportedly erroneously filed an appeal against the declaratur by the High Court in former Chief Justice Luke Malaba's case to the Supreme Court instead of the Constitutional Court (ConCourt).
Justice, Legal and Parliamentary Affairs minister Ziyambi and Attorney-General Prince Machaya on Monday filed a notice of appeal to the Supreme Court against the landmark ruling by High Court judges - Justices Happias Zhou, Jester Helena Charehwa and Edith Mushore on Saturday.
The three judges ruled that Malaba ceased to be the country's Chief Justice (CJ) on the day he turned 70 on May 15 and could not benefit from Amendment (No 2) Bill, which extended the age limit for judges to 75.
This came after President Emmerson Mnangagwa had extended Malaba's term of office by five years.
In an interview yesterday, law expert and lecturer at Kent University, Alex Magaisa confirmed that the appeal by the government was "misplaced" as it was supposed to be lodged at the ConCourt.
"We are talking of either two avenues, it could be an appeal, the legality or the legal process of having an appeal from a decision of the High Court would be that it doesn't go to the Supreme Court and this in terms of the very reason which was made in 2020 by Justice Paddington Garwe and agreed to by fellow judges of the Supreme Court, that such an application goes direct to the ConCourt and this is in the case of Mfundo Mlilo versus the President of Zimbabwe," Magaisa said.
"So in my opinion and I think the opinion of most lawyers who appreciate the legalities of this, it's a fact that the application in the Supreme Court is in the wrong forum and it has to go to the ConCourt."
He said even if the case was correctly in the ConCourt, that did not solve the problem because all the judges of the two courts were cited and were conflicted to the extent that they could not sit in judgment of a case in which they are interested parties.
"Even the point that the case has to go to the ConCourt for confirmation, even assuming that's the correct position, it still requires to be heard by a full bench of the ConCourt. As I pointed out before, all those judges of the ConCourt are conflicted. This is the nub of the crisis that we face and I have explained that a constitutional crisis arises from many situations. One of the situations is when the constitutional arrangements no longer have mechanisms to provide a resolution to a dispute," he said.
Magaisa said in this case there was no mechanism to solve the crisis because all the judges are conflicted and whatever they do would be tainted by illegality.
"One option is to find judges either retired judges or appoint judges of the High Court to sit on the panel, maybe even foreign judges to do so. But again we have a problem because someone has to appoint them. Judges of the ConCourt or Supreme Court are not chosen by the President, I mean acting judges, such acting judges have to be appointed by the CJ and we don't have a substantive CJ," Magaisa said.
"Even if we had the CJ himself or outgoing, he is conflicted because he is part to the action and has an interest in the matter. The Deputy CJ who is acting CJ is also in a similar position and all those judges are in the same position. This is what I warned about a month ago that we now have a constitutional crisis," he said, adding that the issues which were being pointed out about the technicalities and procedures all led up to a cul de sac (dead end)
"The question you should be asking me is: What happens since we now have a constitutional crisis? We have to seek a political solution. In my opinion, this is where citizens meet together in a sober way to find a political solution to this crisis," he said.
His sentiments were echoed by professor of world politics at the School of Oriental and African Studies University of London, Stephen Chan who said the appeal should be heard in the ConCourt.
"It is normally regarded as judicially unsound and improper for a court to hear an appeal against itself. This applies no matter who is sitting on the bench of that court. However, it seems to me that, pending appeal to the ConCourt, the decision of the Supreme Court in the Malaba case must be regarded as valid and legal. This has nothing to do with taking political sides, but has to do with accepted and acceptable juridicial principle and practice," Chan said.
However, Advocate Lewis Uriri said the High Court judgment had no effect until confirmed by the ConCourt.
"Whether or not the judgment is purely declaratory is regardless. It has the effect that the conduct of the President in extending the CJ's term is constitutionally invalid. It is this effect which has no force unless it is confirmed by the ConCourt.
"An appeal by the respondents, while the route to take if they disagree with the judgment, is strictly not necessary. There have to be confirmation proceedings before the ConCourt," Uriri said.
He said he would express no views on who would sit in the confirmation proceedings as this was a live issue given that the whole ConCourt bench was cited as respondents.
"The judgment of the High Court must be respected to the extent that it makes the pronouncement that it did. The jurisdiction of the High Court ended with the handing down of the judgment. The learned judges discharged their duties and oath of office," he said.
Efforts to get a comment from the Judicial Service Commission hit a snag yesterday as its staff asked for written questions and had not responded at the time of going to Press.
Meanwhile, the Justice, Legal and Parliamentary Affairs ministry yesterday said although it respected the High Court judgment nullifying extension of Malaba's term of office, it remained aggrieved.
At the weekend, Justice minister Ziyambi Ziyambi issued a hard-hitting statement, claiming that the Judiciary was captured by foreign elements.
But the ministry's secretary Virginia Mabiza said government believed in the independence of the Judiciary and respected the principle of separation of powers.
"The government of Zimbabwe, therefore, recognises the importance of the Judiciary as a dependable interpreter of the law where various opinions may arise. The government having given its full consideration to the judgment of the High Court in the above referenced matter, holds, with respect, a different view and is unable, for many reason, to agree with the judgment of the honourable court," Mabiza said in a statement yesterday.
"It has, therefore, taken measures to have the judgment set aside in accordance with the law. The government will implement all necessary processes triggered by the noting of an appeal against the judgment."
"Further the authority of the Judiciary and all its respective officers and structures remains in place with the courts fully functional in discharging their constitutional mandate," she said.
Malaba's term was supposed to expire on Friday when he turned 70, but Mnangagwa extended it by five years following a controversial constitutional amendment which he signed into law early this month.
Justice, Legal and Parliamentary Affairs minister Ziyambi and Attorney-General Prince Machaya on Monday filed a notice of appeal to the Supreme Court against the landmark ruling by High Court judges - Justices Happias Zhou, Jester Helena Charehwa and Edith Mushore on Saturday.
The three judges ruled that Malaba ceased to be the country's Chief Justice (CJ) on the day he turned 70 on May 15 and could not benefit from Amendment (No 2) Bill, which extended the age limit for judges to 75.
This came after President Emmerson Mnangagwa had extended Malaba's term of office by five years.
In an interview yesterday, law expert and lecturer at Kent University, Alex Magaisa confirmed that the appeal by the government was "misplaced" as it was supposed to be lodged at the ConCourt.
"We are talking of either two avenues, it could be an appeal, the legality or the legal process of having an appeal from a decision of the High Court would be that it doesn't go to the Supreme Court and this in terms of the very reason which was made in 2020 by Justice Paddington Garwe and agreed to by fellow judges of the Supreme Court, that such an application goes direct to the ConCourt and this is in the case of Mfundo Mlilo versus the President of Zimbabwe," Magaisa said.
"So in my opinion and I think the opinion of most lawyers who appreciate the legalities of this, it's a fact that the application in the Supreme Court is in the wrong forum and it has to go to the ConCourt."
He said even if the case was correctly in the ConCourt, that did not solve the problem because all the judges of the two courts were cited and were conflicted to the extent that they could not sit in judgment of a case in which they are interested parties.
"Even the point that the case has to go to the ConCourt for confirmation, even assuming that's the correct position, it still requires to be heard by a full bench of the ConCourt. As I pointed out before, all those judges of the ConCourt are conflicted. This is the nub of the crisis that we face and I have explained that a constitutional crisis arises from many situations. One of the situations is when the constitutional arrangements no longer have mechanisms to provide a resolution to a dispute," he said.
Magaisa said in this case there was no mechanism to solve the crisis because all the judges are conflicted and whatever they do would be tainted by illegality.
"One option is to find judges either retired judges or appoint judges of the High Court to sit on the panel, maybe even foreign judges to do so. But again we have a problem because someone has to appoint them. Judges of the ConCourt or Supreme Court are not chosen by the President, I mean acting judges, such acting judges have to be appointed by the CJ and we don't have a substantive CJ," Magaisa said.
"Even if we had the CJ himself or outgoing, he is conflicted because he is part to the action and has an interest in the matter. The Deputy CJ who is acting CJ is also in a similar position and all those judges are in the same position. This is what I warned about a month ago that we now have a constitutional crisis," he said, adding that the issues which were being pointed out about the technicalities and procedures all led up to a cul de sac (dead end)
"The question you should be asking me is: What happens since we now have a constitutional crisis? We have to seek a political solution. In my opinion, this is where citizens meet together in a sober way to find a political solution to this crisis," he said.
His sentiments were echoed by professor of world politics at the School of Oriental and African Studies University of London, Stephen Chan who said the appeal should be heard in the ConCourt.
However, Advocate Lewis Uriri said the High Court judgment had no effect until confirmed by the ConCourt.
"Whether or not the judgment is purely declaratory is regardless. It has the effect that the conduct of the President in extending the CJ's term is constitutionally invalid. It is this effect which has no force unless it is confirmed by the ConCourt.
"An appeal by the respondents, while the route to take if they disagree with the judgment, is strictly not necessary. There have to be confirmation proceedings before the ConCourt," Uriri said.
He said he would express no views on who would sit in the confirmation proceedings as this was a live issue given that the whole ConCourt bench was cited as respondents.
"The judgment of the High Court must be respected to the extent that it makes the pronouncement that it did. The jurisdiction of the High Court ended with the handing down of the judgment. The learned judges discharged their duties and oath of office," he said.
Efforts to get a comment from the Judicial Service Commission hit a snag yesterday as its staff asked for written questions and had not responded at the time of going to Press.
Meanwhile, the Justice, Legal and Parliamentary Affairs ministry yesterday said although it respected the High Court judgment nullifying extension of Malaba's term of office, it remained aggrieved.
At the weekend, Justice minister Ziyambi Ziyambi issued a hard-hitting statement, claiming that the Judiciary was captured by foreign elements.
But the ministry's secretary Virginia Mabiza said government believed in the independence of the Judiciary and respected the principle of separation of powers.
"The government of Zimbabwe, therefore, recognises the importance of the Judiciary as a dependable interpreter of the law where various opinions may arise. The government having given its full consideration to the judgment of the High Court in the above referenced matter, holds, with respect, a different view and is unable, for many reason, to agree with the judgment of the honourable court," Mabiza said in a statement yesterday.
"It has, therefore, taken measures to have the judgment set aside in accordance with the law. The government will implement all necessary processes triggered by the noting of an appeal against the judgment."
"Further the authority of the Judiciary and all its respective officers and structures remains in place with the courts fully functional in discharging their constitutional mandate," she said.
Malaba's term was supposed to expire on Friday when he turned 70, but Mnangagwa extended it by five years following a controversial constitutional amendment which he signed into law early this month.
Source - newsday
