Bulawayo man files pro-Malaba appeal

A BULAWAYO man has filed a Constitutional Court application seeking an order nullifying a ruling by three High Court judges that sought to disqualify Chief Justice Luke Malaba from office.

Mr Marx Mupungu (30) is the applicant and Professor Lovemore Madhuku's Law firm is representing him.

He filed the application on Friday and in terms of Section 175(3) of the Constitution of Zimbabwe, 2013, as read with Rule 31(5) of Constitutional Court Rules, 20I6.

Mr Mupungu listed Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi, Judicial Service Commission, Musa Kika, Young Lawyers Association of Zimbabwe, Fredrick Charles Moses Mutanda, Attorney General Mr Prince Machaya and President Mnangagwa as 1st to 7th respondents respectively.

The application comes as a latest development to the issue around extension of CJ Malaba's term in office by President Mnangagwa.
Early this month the President extended CJ Malaba's contract by another five years depending on yearly medical reports proving he is still mentally and physically fit to continue in the esteemed judicial office thereby allowing him to serve until the age of 75.

The Young Lawyers Association of Zimbabwe (YLAZ) made a High Court application challenging the decision and Harare High Court Judges, Justices Happias Zhou, Edith Mushore and Jesta Charehwa ruled that the incumbent judges of the senior courts could not benefit from an amendment to the Constitution extending their term limits.

The ruling had the effect of retiring Justice Malaba, who recently turned 70, the legal retirement age.

The bench also ruled that the extension of term provided by section 186 of the Constitution does not apply to any sitting judges of the Constitutional Court and Supreme Court.

The court also ruled that the amendment needs to be put to a public referendum.

The Judicial Service Commission temporarily appointed Justice Elizabeth Gwaunza acting Chief Justice before the 1st and 6th respondents separately filed their notices of appeal against the High Court judgment that sought to annul extension of CJ Malaba's service.

CJ Malaba is back in office.

Mr Mupungu said an undesirable state of affairs has arisen in the country and in the judiciary characterised by confusion, uncertainty and anxiety.

He said there should be no doubt among citizens as to who the Chief Justice is at any one time and where some doubt is cast by a lower court, as is the case now, the Constitutional Court, on application, must swiftly put finality to issues being raised.

The applicant said the President's conduct was constitutionally valid and he believes his application is of extreme urgency as the issues raised are of immense public importance and require an authoritative determination by the highest court.

He invoked Rule 15 of the Constitutional Court Rules, 2016 which allows the court to deal with a matter differently because of its nature.

"I am making this application in terms of section 175(3) of the Constitution of Zimbabwe. I am seeking an order varying or not confirming an order of constitutional invalidity made by the High Court of Zimbabwe handed down on 15 May 2021.

"The High Court declared that section 185(4) of the Constitution of Zimbabwe is constitutionally invalid.

"I am applying for an order not to confirm the orders of constitutional invalidity and to have them set aside. I am approaching this Court as a person with sufficient interest within the contemplation of section 175(3) of the Constitution. As a citizen by birth, I have a sufficient interest in defending and protecting the Constitution. Section 175(1) of the Constitution exists for my protection as a citizen: a lower court is a lower court, it has no final say on matters of constitutional validity. This is why we created this highest court on constitutional matters.

"I believe the President of Zimbabwe acted constitutionally when he accepted the medical report on the mental and physical fitness of the Honourable Justice Luke Malaba. In so doing, the President was approving the Honourable Justice Malaba's election to continue in office as Chief Justice for an additional five years," said Mr Mupungu.

He said the High Court orders in question have far-reaching consequences that may undermine the administration of justice.

The applicant said he believes the Chief Justice is in office in accordance with the Constitution and cannot be said to have ceased being Chief Justice on 15 May 2021 without at the same time also saying the President's conduct of accepting the medical report was constitutionally invalid.

Mr Mupungu accused respondents 1 to 6 of acting as if section 175(1) of the Constitution is not in issue.

He said the High Court also based its order on its interpretation of section 328(7) of the constitution which it said rendered section 185 inapplicable to CJ Malaba.

"I am advised that when the President receives a medical report and decides whether or not to accept, he would be performing a constitutional act. His conduct in that regard is constitutional conduct.

"There must be no paralysis, either we have a Chief Justice or the office is vacant. This Court has jurisdiction and there is no point in delaying the exercise of that jurisdiction. I am applying that both orders be not confirmed, and that both orders be set aside."

The respondents have 10 days to respond.