The appeal to the Supreme Court against a High Court decision blocking sitting judges from holding office after attaining 70 is expected to be lodged today.
The Government is moving fast as the decision directly
affects Chief Justice Luke Malaba as the first judge to reach 70 since the
recent constitutional amendment was passed by Parliament and gazetted as law.
Chief Justice Malaba attained the age of 70 on Saturday but
as the now amended section of the Constitution allows, he exercised his option
before his birthday to continue until 75 and submitted the required medical
certificate that he was in good mental and physical health.
However, this was challenged as a matter of urgency in the
High Court, where a three-judge panel comprising lead judge Justice Happias
Zhou and Justices Edith Mushore and Helena Jester Charewa on Saturday ruled
that the particular clause changing the retirement ages of sitting judges
required a referendum after passing through Parliament.
The Judicial Service Commission has since announced that
Deputy Chief Justice Elizabeth Gwaunza is now the acting Chief Justice, pending
the outcome of the appeal.
Justice, Legal and Parliamentary Affairs Minister Ziyambi
Ziyambi yesterday confirmed the Government decision to file the appeal today.
“We want to file the appeal against the judgment,” he said
in response to a question from The Herald.
Under the Constitution, most amendments can become part of
the Constitution once they have received the approval of two thirds of the
membership of the National Assembly and of the Senate sitting separately. But
amendments to the Declaration of Rights and to the chapter on Agricultural Land
do require approval in a referendum within three months of passing the
parliamentary votes along with the section that details how the Constitution
can be amended,
High Court judges said the amendment relating to the
retirement age of judges also required a referendum although the full reasons
for their judgment are yet to be given. They ruled the amendment could not
apply to sitting judges until a referendum is held.
It is understood that the three judges who heard the urgent
application brought by prominent businessman Mr Frederick Mutanda, Young
Lawyers Association of Zimbabwe and Human Rights’ lawyer Mr Musa Kika, need to
give their reasons promptly to allow Government lawyers to analyse these and to
avoid any delay in the hearing of the appeal and the final judicial decision.
While the three judges ruled against the extension of
retirement ages, and so against Chief Justice Malaba’s tenure of office, some
legal experts have expressed their views in support of the constitutionality of
the recent constitutional amendment that got the signature of President
Mnangagwa since retirement ages are not in the two chapters where amendments
require a referendum in addition to the super majority in Parliament.
Commenting on the High Court ruling yesterday, legal expert
Mr Obert Gutu criticised Justices Zhou, Mushore and Charewa for allegedly
failing to make a distinction between a term limit and an age limit.
He said the Constitution Amendment (No.2) Act did not
extend the term limit of judges of the superior courts, but merely extended the
age limit by allowing them to continue occupying judicial office for another
five years after attaining the age of 70, subject to them providing medical
proof that they are still in sound physical and mental health.
“This, to me, is the major weakness of the High Court
judgment that was handed down on Saturday, May 15, 2021,” said Mr Gutu.
“Because Constitution Amendment (No.2) Act does not extend the term limit of
judges of the superior courts, there is, therefore, no need to go to a
referendum.”
Judges of the Constitutional Court have a term limit of 15
years and cannot be reappointed and even then would have to retire at 70 or, if
they exercised their option to continue, at 75. Chief Justice Malaba had not
yet served 15 years as a Constitutional Court judge and thus, his age limit could
lawfully be extended to enable him to serve for another five-year period,
subject, of course, to the requirements of providing a medical certificate.
“I am absolutely convinced that the High Court judgment is
challengeable in the Supreme Court with a significant degree of prospects of
success of the appeal,” he said.
“Clearly, the High Court totally misdirected itself by
failing to distinguish between a term limit and an age limit.”
Prominent lawyer, Advocate Lewis Uriri, said by accepting
the extension of his term of office, Chief Justice Malaba had further demonstrated
his commitment to serving the nation and the justice system.
“A law is a law because of the validity of its source from
within the legal system. The learned Chief Justice has been appointed in terms
of a law deriving from a valid source within the legal system,” he said.
Adv Uriri was convinced that all Zimbabweans would benefit
from Chief Justice Malaba’s continued service in his post.
“The legal profession in particular, will no doubt be
equipped to better serve the nation from his commitment to the teaching of
Superior Court Practice and his immense passion for the study and logical
application of legal principles.
“I believe that under his leadership study and diligence
will become the duty of all legal practitioners. This, so far, has been part of
his legacy as Chief Justice,” said Adv Uriri. Herald
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