News / Local
Fresh bid to rescue Malaba
06 Jun 2021 at 10:08hrs | Views
A little known Zanu-PF youth league member on Friday filed a Constitutional Court (ConCourt) application seeking to nullify a judgement that ended Luke Malaba's term as chief justice.
Three High Court judges Justices Happias Zhou, Edith Mushore and Jester Charehwa last month ruled that President Emmerson Mnangagwa's move to extend Malaba's tenure by five years was illegal.
Marx Mapungu, who is being represented by lawyer Lovemore Madhuku, argued in the ConCourt application that Mnangagwa acted within the law in renewing the chief justice's term.
"I am making this application in terms of section 175 (3) of the constitution of Zimbabwe," reads part of the application.
"I am seeking an order varying or not confirming an order of constitutional invalidity made by the High Court of Zimbabwe in Judgement no HH264/21 handed down on May 15, 2021 by a three-member panel."
Mapungu added: "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's election to continue in office as chief justice for an additional five years
"As a citizen, I believe the chief justice is in office in accordance with the constitution following the aforesaid acceptance by the president of the aforesaid medical report."
Mapungu described Malaba's case as an "undesirable" state of affairs that had arisen in the country and in the judiciary characterised by confusion, uncertainty and anxiety."
"The High Court orders in question have far-reaching consequences that may undermine the administration of justice," he argued.
"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.
"He (Malaba) 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.
"I am advised that when the president receives a medical report and decides whether or not to accept it, he would be performing a constitutional act.
"His/her conduct in that regard is constitutional conduct. It is either constitutionally valid or constitutionally invalid."
Mapungu said he decided to make an urgent application because the matter was of immense public importance and required an authoritative determination by the highest court.
He also argued that on the second order relating to the deputy chief justice and other judges of the constitutional and Supreme Court, section 186(4) of the constitution was clear that the judges have the option to elect to retire at 75 years.
"A retirement age is not the same thing as a "term limit" and so section 328(7) of the constitution does not arise," Mapungu stated.
"By determining that the deputy chief justice and all persons, who were judges of the Supreme Court and Constitutional Court as at 7 May 2021 are not entitled to elect to retire at the age of 75 years, the High Court, for all intents and purposes, is saying that section 186(4) of the constitution is constitutionally invalid."
He cited Zimbabwe Human Rights NGO Forum executive director Musa Kika, and the Young Lawyers' Association of Zimbabwe, who challenged the extension of Malaba's term, as respondents in the matter.
Justice minister Ziyambi Ziyambi, the Judiciary Service Commission and Mnangagwa are also respondents in the matter.
Initially, the government reacted angrily to the judgement with Ziyambi accusing judges of being captured by foreign forces.
Mnangagwa had to step in after the minister's comments caused an uproar and he gave an assurance that the government would respect the independence of the courts.
The government has since appealed against the judgement.
Kika recently filed an urgent chamber application seeking Malaba's arrest for contempt of court charges, after he reportedly turned up for work despite a court order which terminated his contract as chief justice.
On Friday, High court judges, Justices Amy Tsanga and Slyvia Chirawu-Mugombe reserved their judgement on the matter.
Malaba was a beneficiary of controversial constitutional amendments that gave Mnangagwa power to appoint the country's top judges.
Three High Court judges Justices Happias Zhou, Edith Mushore and Jester Charehwa last month ruled that President Emmerson Mnangagwa's move to extend Malaba's tenure by five years was illegal.
Marx Mapungu, who is being represented by lawyer Lovemore Madhuku, argued in the ConCourt application that Mnangagwa acted within the law in renewing the chief justice's term.
"I am making this application in terms of section 175 (3) of the constitution of Zimbabwe," reads part of the application.
"I am seeking an order varying or not confirming an order of constitutional invalidity made by the High Court of Zimbabwe in Judgement no HH264/21 handed down on May 15, 2021 by a three-member panel."
Mapungu added: "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's election to continue in office as chief justice for an additional five years
"As a citizen, I believe the chief justice is in office in accordance with the constitution following the aforesaid acceptance by the president of the aforesaid medical report."
Mapungu described Malaba's case as an "undesirable" state of affairs that had arisen in the country and in the judiciary characterised by confusion, uncertainty and anxiety."
"The High Court orders in question have far-reaching consequences that may undermine the administration of justice," he argued.
"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.
"He (Malaba) 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.
"I am advised that when the president receives a medical report and decides whether or not to accept it, he would be performing a constitutional act.
"His/her conduct in that regard is constitutional conduct. It is either constitutionally valid or constitutionally invalid."
Mapungu said he decided to make an urgent application because the matter was of immense public importance and required an authoritative determination by the highest court.
He also argued that on the second order relating to the deputy chief justice and other judges of the constitutional and Supreme Court, section 186(4) of the constitution was clear that the judges have the option to elect to retire at 75 years.
"A retirement age is not the same thing as a "term limit" and so section 328(7) of the constitution does not arise," Mapungu stated.
"By determining that the deputy chief justice and all persons, who were judges of the Supreme Court and Constitutional Court as at 7 May 2021 are not entitled to elect to retire at the age of 75 years, the High Court, for all intents and purposes, is saying that section 186(4) of the constitution is constitutionally invalid."
He cited Zimbabwe Human Rights NGO Forum executive director Musa Kika, and the Young Lawyers' Association of Zimbabwe, who challenged the extension of Malaba's term, as respondents in the matter.
Justice minister Ziyambi Ziyambi, the Judiciary Service Commission and Mnangagwa are also respondents in the matter.
Initially, the government reacted angrily to the judgement with Ziyambi accusing judges of being captured by foreign forces.
Mnangagwa had to step in after the minister's comments caused an uproar and he gave an assurance that the government would respect the independence of the courts.
The government has since appealed against the judgement.
Kika recently filed an urgent chamber application seeking Malaba's arrest for contempt of court charges, after he reportedly turned up for work despite a court order which terminated his contract as chief justice.
On Friday, High court judges, Justices Amy Tsanga and Slyvia Chirawu-Mugombe reserved their judgement on the matter.
Malaba was a beneficiary of controversial constitutional amendments that gave Mnangagwa power to appoint the country's top judges.
Source - the standard
