ATTORNEY-GENERAL Prince Machaya has said the extension of Chief Justice Luke Malaba’s term by five years after the signing of Constitutional Amendment (No 2) Bill into law was constitutional.
Machaya was responding to a High Court application by Young
Lawyers Association who were seeking to overturn President Emmerson Mnangagwa’s
extension of Justice Malaba’s term on the basis that procedure leading to the
enactment of Constitutional Amendment (No 2) Bill into law.
In the High Court application, the Young Lawyers
Association cited the Judicial Service Commission, Justice Malaba and Machaya
as respondents.
Young Lawyers Association leader and war veteran Frederick
Mutanda, who is the second applicant, said the reappointment of Justice Malaba
would plunge the country into a constitutional crisis.
Machaya said the causes of action established in the relief
sought are clearly matters of law which are best dealt with in heads of
arguments.
“In this affidavit, therefore, I will limit myself to
indicating the nature of my opposition to the requested relief on the facts
upon which it is founded and the basis upon which my opposition is founded,”
Machaya said.
“The first applicant clearly assumes that by extending the
retirement age of judges of the Constitutional Court, the Constitutional
Amendment has introduced an extension to a term limit provision which is
subject to the provisions of section 328(7) of the Constitution.”
Machaya added: “A term limit provision within the
Constitution is provided for in period-specific language with respect to the
applicable public office and has no
bearing whatsoever on age qualification for assumption of public
office or the age at which an incumbent must retire from public office.
“First applicant’s assumption is, therefore, unsustainable
upon proper reading and construction as a whole. Accordingly, there is nothing
to prevent second responded from benefiting
from the provisions of the Constitutional Amendment if he meets the
conditions prescribed for him to continue
serving as chief justice between the ages of 70 years and 75 years.”
Machaya said the Young Lawyers Association clearly assumed
that there was a Constitutional Court in existence at the time that Justice
Malaba was appointed a judge of the Supreme Court.
“In my respectful view, there was no Constitutional Court
in existence prior to March 22 2013, that being the date on which the
Constitution was published. The fact that the Supreme Court determined
constitutional matters did not make it a Constitutional Court. It was, in any
event, equally competent for other inferior courts to also determine
constitutional matters.”
On Wednesday, Mnangagwa extended Chief Justice Malaba’s
term by five years, defying pressure from critics who said the move created a
constitutional crisis.
The extension follows a constitutional amendment rushed
through Parliament by the ruling Zanu PF party which gave Mnangagwa authority
to unilaterally appoint judges and extend their terms of office. Mnangagwa
signed the Constitutional Amendment (No 2) Bill into law last Friday. Newsday
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