In a Seismic judgement today in Harare, High Court Judge Justice Happison Zhou has ruled that Luke Malaba is no longer the Chief Justice or a Judge of Zimbabwe.
A three member team of Judges (Justice Zhou, Justice Mushore and Justice Charehwa) head the case that was lodged by lawyer Musa Kisa, Young lawyers association, Zimbabwe Lawyer for Human Rights and war veteran Fred Mutadanda. The lawyers representing the litigants in the case were Tendai Biti and Advocate Thabani Mpofu.
The case was head well into the night on Friday the 14th of May, with fierce back and forths between the lawyers representing the litigants as well as the respondents who comprised the Minister of Justice, The Chief Justice and a whole host of other supreme court and Constitutional court justices.
In the historic ruling, Justice Zhou said, “In view of the decision that we have reached, Hon Malaba ceased being a judge and CJ at 0000hrs on 15 May 2021.”
Justice Luke Malaba turned 70 on the 15th of May, and by operation of law he ceased to be a judge as the law stated that the retirement age for judges is 70. However, 2 days ago the President, using his newly acquired powers which came via the recent constitutional amendment bill number 2, which empower him to handpick the Chief Justice instead of the previously mandated public interviews, extended the Chief Justice’s term of office.
Constitutional amendment bill no.2 also extended the retirement age for judges to 75 from the previous 70. Legal experts and political commentators viewed the amendment as a tool to benefit Luke Malaba and some had started calling it the Luke Malaba amendment.
The amendment is seen as retrogressive as it sought to benefit an individual when the law is supposed to be for the larger good of the nation.
Today’s historic ruling came as a result to the challenge to that term extension with the High Court stating that the newly gazetted law does not apply to incumbents. This means that Luke Malaba is now out of office unless there is an appeal by the Judicial Services Commission which represented him in the case.
Legal experts have cast doubt on the possibility of an appeal, at it would have to be heard by the supreme court, most of whose judges were cited in the case as respondents.
Speaking outside the high court after the ruling, Lawyer Tendai Biti said, “Constitutional change extending term of office of a public officer cannot benefit the incumbent.”
The ruling is viewed by many as a massive slap in the face for both the President and Luke Malaba in view of what is now effectively an illegality of extending the later’s tenure unconstitutionally. Many view today’s ruling as a victory for constitutionalism.
Luke Mabala became the chief justice in 2016, after succeeding the late retired Chief Justice Godfrey Chidyausiku. Malaba was Chidyausiku’s deputy. He went through a rigorous public interview, which had several other candidates who include judge presudent George Chiweshe among others.
Chiweshe was seen then as Mnangagwa’s favoured candidate to succeed Chidyausiku but scored less points that Malaba, who scored an impressive 95%. The current President was Justice minister at the time.
With Malaba, barring an appeal, now effectively out of the way, all eyes will be on Mnangagwa, to see who he will appoint as new Chief Justice. He now has powers to singularly appoint the Chief Justice and the judge president without letting them go through public interviews.
It now remains to be seen if Mnangagwa will fight to keep Malaba in office or appoint a successor. The later was viewd by many as Mnangagwa’s man in the judiciary and thought to have been in the President’s grand plan for the 2023 elections. Analysts feared that the Mnangagwa wanted Malaba to stay on in anticipation of another contested Presidential election in which case he would want a pliant Judiciary whose head is in his pocket. Crucially Malaba ruled in 2018 that Mnangagwa’s predecessor Robert Mugabe had retired voluntarily concluding that his ouster wasn’t a coup but his wilfull act. He was ruling on a court challenge by polical activists, among them Linda Masarira that Mnangagwa had used a coup de etat to topple Mugabe.
As Chief Justice, Luke Malaba also presided over the July 2018 Presidential election challenge by opposition Leader Nelson Chamisa and declared Mnangagwa as winner and duly elected.