Judges have final say on Malaba case, says Govt

GOVERNMENT said it would leave Supreme Court judges to decide whether or not they could hear government's appeal against a ruling suspending President Emmerson Mnangagwa's extension of former Chief Justice Luke Malaba's term by five years.

The judges were cited as respondents in the ruling delivered by High Court judge Justice Happias Zhou last Saturday. However, legal experts said they could not hear the matter since they were conflicted. Zimbabwe would face a constitutional crisis should they elect to hear the matter.

But addressing journalists after the swearing in ceremony of five Constitutional Court (ConCourt) judges yesterday, Justice secretary Virginia Mabiza said it was up to the Supreme Court judges to decide whether to hear the matter or not.

She said the Supreme Court judges and the Judicial Service Commission (JSC) were up to the task.

"Perhaps the JSC may be best placed to comment on this one, but let me just say that as the secretary for Justice, what we see is not a constitutional crisis," Mabiza said.

"Parties have brought their matter before the court; it is entirely up to the court, the institution, to which the matter has been brought to make a decision as to whether or not preside on the case. So there is no constitutional crisis. As you can see, the courts are functional, as you can see today, a major event happened, so there is no crisis."

Justices Paddington Garwe, Rita Makarau, Anne-Marie Gowora, Bharat Patel and Ben Hlatshwayo were sworn in as judges of the ConCourt yesterday.

All the judges of the Supreme Court and ConCourt were cited in the case where Musa Kika and the Young Lawyers Association challenged an attempt to extend the term of office of Justice Malaba by five years.

This, according to legal experts, makes them conflicted and unable to preside over the matter. Some legal experts have suggested the possibility of hiring retired or foreign judges.

Law expert and University of Kent lecturer Alex Magaisa yesterday said the Supreme Court judges had no legal authority to sit in judgment of a case where they are players.

"I don't know what their strategy is," Magaisa said.

"The answer is still the same that the judges of the Supreme Court, at least the cited judges of the Supreme Court are conflicted and so they are not in a position to be players and referees at the same time.

"The judges who are cited cannot sit over the matter for the simple reason that they can't be a players and referees at the same time simple."

But University of Zimbabwe law lecturer Lovemore Madhuku told NewsDay that the judges will have the final say on whether to hear the matter or not.

"Judges are asked to recuse themselves, but they are the ones who make the decision where to recuse or proceed, its the same in this case," Madhuku said.

Justice minister Ziyambi Ziyambi, Prosecutor-General Kumbirai Hodzi and Attorney-General, Prince Machaya attended the swearing in ceremony which was presided over by the acting Chief Justice Elizabeth Gwaunza.

The atmosphere was tense, with Ziyambi refusing to field questions from the media, and also blocking the new judges from interacting with the media.