The case was filed by the Zimbabwe Human Rights NGO Forum
executive director Musa Kika, and a panel of three judges, Justices Webster
Chinamhora, Amy Shupikai Tsanga and Sylvia Chirawu-Mugomba will hear the
matter.
Malaba has reportedly been attending to official duties as
the Chief Justice despite a High Court ruling that he ceased to occupy the
position when he attained the age of retirement on May 15, 2021. The Judicial
Service Commission (JSC) has also appointed Justice Elizabeth Gwaunza as acting
Chief Justice in his stead.
Malaba and the JSC argue that the former can attend to
duties because the government lodged an appeal against the ruling.
However, Kika filed an urgent court application seeking the
committal of Malaba to Chikurubi Maximum Security Prison for a period of six
months for defying a High Court order issued by Justices Happias Zhou, Edith
Mushore and Jester Charewa a fortnight ago.
He insists that the High Court judgment is a declaratur and
for that reason cannot be suspended by an appeal.
Kika, who was the applicant in the matter together with the
Young Lawyers Association of Zimbabwe, secured a declaratory order in which the
High Court declared that Malaba’s tenure as Chief Justice of Zimbabwe came to
an end on May 15, 2021.
Kika, in his founding affidavit, said Malaba was aware of
this position, but has simply decided to be in contempt of court.
He is also seeking to have the matter referred to the Law
Society of Zimbabwe’s disciplinary and ethics committee.
Malaba’s term of office was extended by five years by
President Emmerson Mnangagwa following the enactment of the Zimbabwe
Constitution Amendment (No 2) Act. Newsday
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