HIGH Court judge Justice Gladys Mhuri yesterday dismissed an application by activist Namatai Kwekweza, who sought to challenge the legality of the extension of Chief Justice Luke Malaba’s term of office by five years.
On May 16 last year, President Emmerson Mnangagwa extended
Malaba’s term of office saying he was medically fit to continue as the
country’s top judge despite being 70 and was supposed to go on retirement in
terms of the provisions of the 2013 Constitution.
To effect the extension of office, the President signed
Constitution of Zimbabwe Amendment (No. 2) Act into law on May 7, 2021.
Several human rights organisations, including Zimbabwe
Human Rights NGO Forum executive director Musa Kika, contested the decision
without success.
On May 20 last year, Kwekweza wrote to the Judicial Service
Commission (JSC) through her lawyers Scanlen and Holderness requesting
information relating to how the JSC had arrived at the decision to recommend
the extension of Malaba’s term of office beyond retirement age.
“How did the JSC come to a decision on the appropriate
recommendation to make to the President under section 186(1) of the
Constitution of Zimbabwe relating to … Malaba’s bid to continue as CJ for
another five years? In particular, was a meeting held by the commissioners for
this purpose? Was a resolution passed to make the appropriate recommendation?
If so, may we have a copy of the resolution? If a resolution was passed … which
commissioners of JSC voted in favour of recommending that … Malaba’s tenure be
extended for another five years and which commissioners voted against?”
Kwekweza submitted in her letter.
The JSC responded through its legal practitioners Kantor
and Immerman dismissing Kwekwedza’s request saying that it infringed on the
individual’s rights.
“Kindly note that our client avers that the information
request you have made is not in accordance with the applicable law. Any such
request is subject to the rights of the individuals and institutions concerned.
There’s no automatic right to the information,” the JSC lawyers wrote back.
Kwekweza was, however, not satisfied with the response and
she filed a High Court application.
In her ruling, Justice Mhuri said: “The Constitutional
Court declined to confirm the orders and set them aside. In essence, the case
confirmed the CJ’s position to remain in office for the next five years as
accepted by the President. It sealed and brought to finality any challenge to
the CJ’s extension of tenure and all the processes that led to it.
“That issue, therefore, is no longer live and is moot. This
notwithstanding is there any benefit to the applicant or the public at large at
this stage to order that the respondent answers ‘yes or no’ as submitted by
applicant when the issue is no longer live, or as submitted by the respondent
when the horse has bolted.” Newsday
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