This came after Zimbabwe Human Rights NGO Forum executive
director Musa Kika and the Young Lawyers Association approached the court
seeking to overturn President Emmerson Mnangagwa’s extension of Justice
Malaba’s term by five years on the basis that procedure leading to the
enactment of Constitutional Amendment (No 2) Bill into law was flawed.
Kika, through his lawyers Advocate Thabani Mpofu and Tendai
Biti, argued that Malaba could not, by virtue of section 328(7) of the
Constitution, benefit from the term limit extension as introduced by an amendment
of section 186 by the Constitution
Amendment No 2.
High Court judges Happias Zhou, Edith Mushore and Helena
Charehwa had already nullified the extension of Malaba’s term, but were still
to release the judgment.
According to the judgment released yesterday, the judges
ruled: “Our conclusion is that the
extension of the retirement age amounts to extension of tenure.
“Tenure is defined by both the fixed time and the
stipulated retirement ages. In terms of section 328(7) of the Constitution,
such an extension of tenure is an amendment of the Constitution.
“It cannot benefit the person who held or occupied the
office at any time before the amendment or occupied the office at any time
before the amendments.”
The judges added: “Any extension of the length of time that
person who were judge in an amendment of the Constitutional Court and Supreme
Court prior to the amendment of section 186 of the Constitution of Zimbabwe
Amendment No 2 (2021) would be a violation of the applicants right as protected
by section 56(1) and 69(3) of the Constitution.”
“The length of extension in the time in the office of their
judge beyond the age of 70 years provided in section 186 of Constitution does
not apply to the second to fourteenth and the eighteenth respondent,” the
judgment added.
On Monday, Malaba reported for work on the basis that
government had appealed Justice Zhou’s ruling and on Tuesday Kika filed an
urgent chamber application seeking the arrest of the former Chief Justice for
contempt of court. Kika pointed out that Justice Elizabeth Gwaunza had been
appointed Acting Chief Justice, indicating that Malaba had ceased to hold the
post until finalisation of the matter in court.
Malaba and the other respondents had been arguing that no
summons or other civil process of the court may be issued against the President
or against any other judges of the High Court without the leave of the court
granted on court application being made for that purpose. Newsday
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