Madhuku files ConCourt application defending Malaba, Mnangagwa

Constitutional lawyer Professor Lovemore Madhuku drew fire on Sunday after taking up a case that seeks to nullify the High Court ruling that ended Luke Malaba's tenure as Zimbabwe's Chief Justice before bouncing back under fiercely contested circumstances.

Madhuku filed a Constitutional Court challenge on behalf of a little known Zanu-PF activist Marx Mapungu on Friday arguing that President Emmerson Mnangagwa acted appropriately and constitutionally by extending Malaba's term of office following controversial constitutional amendments.

The High Court ruled on May 15 that Malaba had ceased being a judge and Chief Justice after reaching the retirement age of 70 and that Mnangagwa had violated the law by giving him five more years.

In his application, Madhuku's client says he is "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."

"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."

He adds: "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."

Madhuku, after taking flak on Twitter including from Professor Jonathan Moyo, with whom he bantered extensively, defended fighting in Malaba and Mnangagwa's corner reasoning that as an attorney, he had a mandate to represent all clients without discrimination, even those whose political views were not in lockstep with his.

The back-and-forth started with Moyo commenting: "This is a Prof. Madhuku-led application to rescue both Malaba and Constitution of Zimbabwe Amendment No. 2. Interesting times!"

Madhuku shot back: "All my clients are Zimbabweans enjoying to the full, the constitutional right to be represented by a lawyer of their choice."

Not backing down, Moyo charged: "The principle you espouse here Prof. Madhuku is indeed sound; but no one needs an inner legal eye to understand that the reality on the ground is that, just like busses in Africa wait for passengers, agenda-pursuing lawyers in Zimbabwe shop for litigants: it's the Zibani strategy!"

And Madhuku retorted: "Agenda-pursuing lawyers! I understand what you mean. When I took instructions in this matter I was very much alive to it but I have never taken, and will never take, it into account. I am only humbled by the fact that some clients prefer me in politically sensitive matters."

In a later interview with ZimLive, Madhuku said he was simply representing his client even though he did not agree with his political views, adding, "That is what I'm trying to put across when responding to Jonathan. He is saying maybe lawyers look for clients but we never do that."

He concluded: "Why would I look for clients, I have no personal relationship with anything, my personal political views are actually the opposite of what my client wants but this is not about my politics, it's my professional work. You go to court on the basis of the law as it is. The law is not politics."

Madhuku, who teaches constitutional law at the University of Zimbabwe and leads the opposition National Constitutional Assembly (NCA) political party, is on record criticizing Constitution of Zimbabwe Amendment (No. 2) Act, which made Malaba's stay possible, hence the outrage over his defence of Mnangagwa and the embattled Chief Justice.

He has also warned that Mnangagwa appears more power-hungry than his predecessor Robert Mugabe, who died in 2019 following his forced removal from power by Mnangagwa in November 2017 military coup.