SC hears Malaba judgment appeal

The Supreme Court is today expected to hear the appeal against the urgent High Court judgment over the extension of Chief Justice Luke Malaba's service by another five years.

Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi and Attorney-General, Advocate Prince Machaya, and the Judicial Service Commission (JSC), separately filed their appeals immediately after the lower court's ruling.

Minister Ziyambi, the AG and JSC, are challenging the High Court decision to rescind the extension of Justice Malaba's service beyond the age of 70 on the grounds that the recent Constitutional Amendment allowing judges, including the Chief Justice, the option of serving to 75 could not include sitting judges of the Constitutional and Supreme Courts but included sitting judges of the High Court.

The hearing, set before a three-judge panel of Justices Lavender Makoni, Alfas Chitakunye and Samuel Kudya, comes after the Constitutional Court in September ruled that Chief Justice Malaba could continue to serve in line with the Constitution until his 75th birthday in May 2026.

The apex court annulled a High Court order and confirmed that all medically fit judges of the three top courts could extend their terms of office until they reach 75.

However, the appeal against the entire judgment of the High Court follows a ruling by three judges of the court, Justices Happias Zhou, Edith Mushore and Justice Jester Charewa, which blocked the Government move to extend Justice Malaba's tenure by five years as allowed by Constitutional Amendment Act Number 2.

The right of judges of the High, Supreme and Constitutional Courts to extend their terms for five years after reaching the normal retirement age of 70 was enshrined in the second amendment to the Constitution enacted shortly before Chief Justice Malaba turned 70.

The Chief Justice promptly exercised his right, and produced the required medical certificate stating that he was physically and mentally fit to continue in office.

On production of that certificate, President Mnangagwa, as the Constitution requires him to do, made the formal order on May 11 just four days before the Chief Justice's 70th birthday.

However, a group of lawyers challenged this decision in an urgent High Court case, heard on the May 15, coincidentally the Chief Justice's birthday, and the three-judge panel ruled that the Constitutional right applied only to sitting High Court judges and not to sitting Supreme Court or Constitutional Court judges.

They mistakenly equated a term limit with a retirement age.

Mr Marx Mupungu of Bulawayo approached the Constitutional Court seeking to overturn the High Court judgment, which he argued impugned the conduct of the President and Parliament for exercising their constitutional mandate by passing the second amendment to the Constitution giving all judges the option of extending their term, if medically fit, for another five years after the set retirement age of 70.

The full bench of the Constitutional Court, presided by Deputy Chief Justice Elizabeth Gwaunza since the Chief Justice was recused, unanimously disagreed with the interpretation of the law made by the High Court on the matter and quashed that May decision.

In terms of that Act the retirement age for all judges is now 70, but every judge has the option to serve to the age of 75 so long as they are mentally and physically fit to do so and exercise that option before their 70th birthday.

This the Chief Justice did and with his medical certificate has his term extended.

The three High Court judges ruled that the Chief Justice ceased to be the Chief Justice upon reaching 70 years on May 15 this year and that the option of an extension of service did not apply to incumbent judges of the Constitutional Court and the Supreme Court.