A little known Zanu PF youth league member on Friday filed a Constitutional Court (ConCourt) application seeking to nullify a judgement that ended Luke Malaba’s term as chief justice.
Three High Court judges Justices Happias Zhou, Edith
Mushore and Jester Charehwa last month ruled that President Emmerson
Mnangagwa’s move to extend Malaba’s tenure by five years was illegal.
Marx Mapungu, who is being represented by lawyer Lovemore
Madhuku, argued in the ConCourt application that Mnangagwa acted within the law
in renewing the chief justice’s term.
“I am making this application in terms of section 175 (3)
of the constitution of Zimbabwe,” reads part of the application.
“I am 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.”
Mapungu added: “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.
“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.”
Mapungu described Malaba’s case as an “undesirable” state
of affairs that had arisen in the country and in the judiciary characterised by
confusion, uncertainty and anxiety.”
“The High Court orders in question have far-reaching
consequences that may undermine the administration of justice,” he argued.
“There must be no paralysis, either we have a chief justice
or the office is vacant.This court has jurisdiction and there is no point in
delaying the exercise of that jurisdiction.
“He (Malaba) cannot be said to have ceased being chief
justice on 15 May 2021 without at the same time also saying the president’s
conduct of accepting the medical report
was constitutionally invalid.
“I am advised that when the president receives a medical
report and decides whether or not to accept it, he would be performing a
constitutional act.
“His/her conduct in that regard is constitutional conduct.
It is either constitutionally valid or constitutionally invalid.”
Mapungu said he decided to make an urgent application
because the matter was of immense public importance and required an
authoritative determination by the highest court.
He also argued that on the second order relating to the
deputy chief justice and other judges of the constitutional and Supreme Court,
section 186(4) of the constitution was clear that the judges have the option to
elect to retire at 75 years.
“A retirement age is not the same thing as a “term limit”
and so section 328(7) of the constitution does not arise,” Mapungu stated. “By
determining that the deputy chief justice and all persons, who were judges of
the Supreme Court and Constitutional Court as at 7 May 2021 are not entitled to
elect to retire at the age of 75 years, the High Court, for all intents and
purposes, is saying that section 186(4) of the constitution is constitutionally
invalid.”
He cited Zimbabwe Human Rights NGO Forum executive director
Musa Kika, and the Young Lawyers’ Association of Zimbabwe, who challenged the
extension of Malaba’s term, as respondents in the matter.
Justice minister Ziyambi Ziyambi, the Judiciary Service Commission
and Mnangagwa are also respondents in the matter.
Initially, the government reacted angrily to the judgement
with Ziyambi accusing judges of being captured by foreign forces.
Mnangagwa had to step in after the minister’s comments
caused an uproar and he gave an assurance that the government would respect the
independence of the courts.
The government has since appealed against the judgement.
Kika recently filed an urgent chamber application seeking
Malaba’s arrest for contempt of court charges, after he reportedly turned up
for work despite a court order which terminated his contract as chief justice.
On Friday, High court judges, Justices Amy Tsanga and
Slyvia Chirawu-Mugombe reserved their judgement on the matter.
Malaba was a beneficiary of controversial constitutional
amendments that gave Mnangagwa power to appoint the country’s top judges.
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