This followed a ruling by the High Court last Saturday that
Malaba had ceased to be chief justice by operation of law when he turned 70 on
May 15.
Justices Happias Zhou, Edith Mushore and Jester Helena
Charewa ruled that Malaba could not benefit from Constitutional Amendment (No
2) Bill, which Mnangagwa had hurriedly signed into law a few days earlier,
because the term extension provided by section 186 of the Constitution did not
apply to any sitting judges of the Constitutional Court and Supreme Court.
The ruling effectively blocked the move by Mnangagwa to
extend Malaba’s tenure by five years.
Government appealed the ruling with Justice minister
Ziyambi Ziyambi attacking the judges for the ruling which left Mnangagwa having
to choose a new CJ from a list he appears not to be comfortable with. Analysts
said Mnangagwa begrudgingly recognised that he had made a mistake in extending
Malaba’s term when he said on Tuesday that he accepted the ruling by the High
Court in apparent rebuke to Ziyambi for questioning the Judiciary’s
impartiality.
Sources close to the developments also said Malaba could
throw in the towel following the furore
and legal challenges the move had created.
Following the recent amendments to the Constitution,
Mnangagwa can appoint Malaba’s replacement without subjecting them to public
interviews, although he still has to consult the Judicial Service Commission.
“In the event of Malaba electing to decline the extension
of his era by the President, the pending appeals lodged by Ziyambi Ziyambi and
the Attorney-General (Prince Machaya) will just be for academic purposes. This
will render the selection of the next chief justice wide open,” a source told
NewsDay.
Deputy CJ Elizabeth Gwaunza is the Acting CJ with sources
saying the frontrunners were three judges with liberation war credentials —
Justices Charles Hungwe, George Chiweshe and Chinembiri Bhunu.
Justice Gwaunza was also in the running, along with Justices
Paddington Garwe and Rita Makarau, the sources added.
Garwe and Makarau were appointed to the Constitutional
Court yesterday.
The Acting CJ is 68 years old and hails from Gutu in
Masvingo while Makarau, who hails from Goromonzi in Mashonaland East, is the
youngest contender at 61. She was strongly favoured before Malaba was appointed
to replace the late Godfrey Chidyausiku by the late former President Robert
Mugabe on March 27, 2017, some eight months before he was deposed by the
military.
Chiweshe (68) is the current Judge President, a position he
has held since 2010. He comes from Mazowe and he has liberation war credentials
— his Chimurenga name was Cde Yasser Arafat after the late Palestinian leader.
At independence, he joined the army and rose to the rank of brigadier general
before retirement. He retired from the army in 2001 upon his appointment to the
bench. He is also a former chairperson of the Delimitation Commission of
Zimbabwe, to which he was appointed in 2004. In 2005, he was appointed to head
the newly established Zimbabwe Electoral Commission.
Another contender is Justice Hungwe, another war veteran
and lawyer aged 63. He is the founding national chairperson of the Zimbabwe
National Liberation War Veterans Association.
Justice Bhunu (63), from Masvingo, is a war veteran seen as
another favourite. A former Senior President of the Labour Court, he was
appointed to the Supreme Court in 2015.
The 67-year-old Justice Garwe is one of the most senior
judges currently on the bench. He previously held positions such as chief
magistrate and secretary for the Justice ministry.
“It would be prudent for Malaba to preserve whatever little
has been left of his legacy by declining the extension of his tenure. It is not
in the best interest of the Judiciary in Zimbabwe that from the look of things
he seems to have worked in cahoots with politicians to extend his tenure as CJ,
wherein the Constitution was rushed through Parliament for his sole benefit,”
said a senior lawyer, who declined identification. Newsday
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