Chief Justice Luke Malaba gets reprieve

THE High Court on Thursday dismissed an application by lawyer and Zimbabwe Human Rights NGO Forum executive director Musa Kika to have Chief Justice Luke Malaba jailed six months for contempt of court, following his return to work despite a ruling stating that he ceased to occupy the top post on 15 May.

Three High Court judges, Happias Zhou, Jester Charewa and Edith Mushore, on 15 May nullified President Emmerson Mnangagwa's extension of Malaba's term of office beyond 70 years.

High Court justices Amy Tsanga and Slyvia Chirawu-Mugomba however said the issue of contempt did not arise in the matter of Malaba returning to work as an appeal suspended the initial judgment.

Justice minister Ziyambi Ziyambi, deputy Chief Justice Elizabeth Gwaunza and the Judicial Service Commission were cited as respondents together with Malaba.

Malaba argued that he resumed duties on the basis that the noting of an appeal suspends an order regardless of who has filed that appeal.

Mnangagwa has been criticised for seeking to extend Malaba's term. Critics view it as a political move as he wants him to be the head of the judiciary so that he has an ally in case the 2023 elections are decided in court as happened in 2018.

In a full judgement released on Thursday, the two judges said: "The rationale for the common-law is that there is need to prevent an irreparable damage from being caused to the appellant. With the law as it stands rather than as it ought to be when it come to the effect of an appeal on an order granted, there can be no contempt on the part of the first respondent when the legal position is that an appeal suspends an order appealed against.

"The appeal suspends the order granted based as it is on the perceived wider consequential effects of the declarator granted. There is thus no need for us to go into the contempt argument as it does not come into play."

Tsanga and Chirawu-Mugomba also said in their view it was correct that a declarator could be appealed, with the Supreme Court being able to review it.

"Where the argument is that a declarator contains consequential relief, which impacts on the rights of the other party it would certainly be appealable as asserted by counsel for the first to the fourth respondents. In our view, it will be for the supreme Court to conclude whether the appeal encroaches on the seemingly ‘issue preclusive order' granted," the judgement read.

"It will also be for the Supreme Court to decide for that matter, whether the assertions made about the order amounts to an attempt at reconstructing that order, whether there are legitimate concerns that the order reconstituted the respondent's rights."

However, all Supreme Court judges were cited as respondents in the first case against the extension of terms, with legal experts saying this disqualifies them from hearing Malaba's appeal and creating what they described as a constitutional crisis.

The case has also brought about several applications from other citizens as well as lawyers. Justice minister Ziyambi Ziyambi reacted angrily at the judgment handed down by the three-member bench comprising justices Zhou, Charewa and Mushore, which ruled that Malaba had ceased to occupy the post of Chief Justice.