Malaba fights back

CHIEF Justice Luke Malaba has asked the High Court to throw out an application by a constitutional law activist for his arrest on contempt of court charges, insisting that his stay in office was legal.

Malaba's term of office as chief justice ended a fortnight ago after the High Court ruled that he had ceased to be the country's top judicial officer on May 15, the day he turned 70 and that a recent constitutional amendment allowing the President to extend his reign did not apply to him.

Last week, Malaba resumed his duties on the belief that the High Court ruling had been suspended by an appeal filed by Attorney-General Prince Machaya and Justice minister Ziyambi Ziyambi.

However, Musa Kika, who challenged the extension of Malaba's term in the initial case, disputed that an appeal against a declarator suspended the operation of a judgment and has asked the High Court to find him in contempt and jail him for six months.

The case is set to be heard tomorrow before High Court judges Justices Webster Chinamhora, Amy Tsanga and Sylvia Chirawu-Mugomba.

Yesterday, Malaba filed his response saying he legally resumed his duties as the top judge following the appeal filed at the Supreme Court by Ziyambi and Machaya against the initial ruling.

"Consequent upon the filing of the appeals, I am advised that regardless of by whom the appeals were noted, the legal effect thereof was to suspend the operation of the two orders relied upon by the applicant (Kika) in this matter," Malaba said.

"I, therefore, legally resumed my duties as the Chief Justice of Zimbabwe following the noting of appeal by the Minister of Justice ... and the Attorney-General on the basis of the interpretation of the law to the effect that the noting of an appeal suspends an order granted by the court, not only for the two appellants but for the world at large.

"The applicant has taken a different view of the legality of my return to office, and seeks an order against me for contempt of this court alleging that I deliberately violated an order of the court while ignoring the facts set out above and the possible conflicting legal positions that can arise on the facts."

He said the granting of the order of contempt would be presumptive and a miscarriage of justice.

"I deny that the country has an acting Chief Justice. The learned Deputy Chief Justice (Elizabeth Gwaunza) acted as Chief Justice in accordance with the law during the time there was no appeal against the judgment and thereafter, at a time when I was out of office," Malaba argued.

"The acting capacity ceases upon resumption of duty by the incumbent. I thus deny that my resumption of duty was and continues to be in defiance of this court. I deny, further, that I have undermined and continue to undermine the authority of the court. I have not put the Judiciary into disrepute as alleged."

He said Kika failed to interpret the law and argued that his application was not based on a good cause as the process that led to his appointment by President Emmerson Mnangagwa was not set aside.

Malaba's case has gripped the country, and former Cabinet minister in the late former President Robert Mugabe's government, Jonathan Moyo, claimed on Twitter yesterday that Judicial Service Commission (JSC) secretary Walter Chikwana had arm-twisted judges to hear the Malaba contempt of court case.

"JSC secretary Walter Chikwana approached a judge of the High Court allocated to hear the contempt of court charges against Justice Luke Malaba, to influence other judges on the panel to rule in favour of Luke Malaba.

"This is a judicial scandal and the Judicial Service Commission must investigate JSC secretary Walter Chikwana and the judge concerned. The judge must be exposed and he must recuse himself from the case. Justice Francis Bere was investigated and removed from the bench for a less serious offence involving trying to influence a lawyer."

Chikwana could not be reached for comment.

Meanwhile, Young Lawyers Association of Zimbabwe and war veteran Frederick Mutanda have filed an urgent chamber application at the High Court seeking an order barring Malaba from executing duties of Chief Justice until finalisation of his case.

"An order granted on 15 May remains in full force and effect notwithstanding the appeals noted against it," the applicants said through their lawyers, Honey & Blanckenberg.