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MDC Alliance pundits warn of 'constitutional crisis'

by Staff reporter
18 May 2021 at 13:59hrs | Views
Justice minister Ziyambi Ziyambi filed a notice of appeal on Monday against the High Court judgment that annulled the five-year extension of Luke Malaba's term of office as Zimbabwe's Chief Justice.

Malaba was removed from the apex of the judiciary by Justices Happias Zhou, Edith Mushore, and Helena Charewa, who ruled that he had ceased being the top judge on Saturday when he reached the retirement age of 70, in a matter brought by the Young Lawyers Association of Zimbabwe (YLAZ) and the Human Rights NGO Forum.

The panel found that President Emmerson Mnangagwa violated the constitution by extending Malaba's term using controversial changes to the national charter without putting the matter to a referendum, adding that, in any case, incumbents could not benefit from the alterations.

Ziyambi, who caught flak after unleashing on the judges, calling them agents of hostile "foreign forces," and Attorney-General Prince Machaya, argued in separate but similar notices filed in the Supreme Court that the lower court had, to start with, erred in finding that the YLAZ had "locus standi to obtain the relief it granted in the absence of evidence of the violation or potential violation of its members' right to equal protection and benefit of the law."

He also disputed the Saturday, May 15, timeline presented by the applicants as Malaba's 70th birthday saying "the High Court further erred in finding that the Second Respondent [Malaba] attained the age of 70 years at 00:00 hours on the 15th of May 2021 when by virtue of Section 336 of the Constitution of Zimbabwe, the Second Respondent attained the age of 70 years at the end of day on the 15th of May 2021, that is at 00:00 hours on the 16th of May 2021."

"The High Court consequently erred in failing to find that the appointment of the Second Respondent as the Chief Justice of Zimbabwe to continue in office made by the President of Republic of Zimbabwe on 11 May 2021 was with legal effect from the 16th of May 2021," argued Ziyambi, who faces possible arrest after rights lawyers reported him for contempt of court following his unmitigated attacks on the judges.

The High Court, Ziyambi further contended, also blundered in "finding that the current judges of the Supreme Court and the Constitutional Court were not entitled to benefit under Section 186 of the Constitution of Zimbabwe (as amended) while at the same time finding that the extension of tenure of judicial service was not a benefit denied to High Court judges"

He added that Justice Zhou and his peers interpreted the law wrongly by ruling that Malaba and other incumbents could not benefit from the extension of the retirement age from 70 to 75.

They were also mistaken, Ziyambi said, "in holding that section 184(4) of the Constitution could only apply in the future, and not to the current judges of the supreme and constitutional court when there was nothing in the constitution suspending the operation of section 184(4) of the Constitution."

Legal pundits are scratching their heads as to how the government appeal will be heard given that all the justices of the Supreme Court and the Constitutional Court were cited in the High Court application.

Law lecturer at Kent University of Kent Alex Magaisa told ZimLive a "constitutional crisis" had arisen as Zimbabwe does "not have a constitutional mechanism to resolve this current dispute. That for me is the big issue. Everything else people are just wasting time on unnecessary technicalities."

"Zimbabwe is facing or is in a constitutional crisis… It means that when a case goes either to the Supreme court or to the Constitutional Court – and it doesn't matter whether it's an appeal or confirmation proceedings – the problem that we are facing is that none of those judges can sit on a panel to determine that case because they are parties to it. You can't be a player and a referee at the same time. This is the nub of the matter," Magaisa said.

Some, Magaisa added, "may say you may call upon retired judges or some judges of the High Court or even foreign judges to constitute a panel, now someone has to do that. And usually, this is done by the Chief Justice."

"But here is the problem, we don't have a substantive Chief Justice at the moment, and even if we had, he is a player because he was cited in the proceedings. The Deputy Chief Justice is also cited in the proceedings, so even in her new capacity as the Acting Chief Justice, she is also a player and, therefore, can not properly and legitimately call upon other judges to constitute a panel because that would be the manager or player of the team selecting referees for the game.

"This is the issue, and I don't know why people are getting lost in these other technicalities of whether it's an appeal or whether it's a confirmation," Magaisa opined.

Source - zimlive

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