The judges to be sworn in include Judge President George
Chiweshe and Justices Alphas Chitakunye, Samuel Kudya, Felistas Chatukuta,
Joseph Musakwa and Hlekani Mwayera.
The move is seen as a ploy by Mnangagwa to use the carrot
and stick strategy on judges to secure a favourable judgment on Malaba’s
appeal.
The swearing in will also take place a day before High
Court judge Justice Tawanda Chitapi hears an appeal by Chamunorwa Chingwe
interdicting the Judicial Service Commission, Mnangagwa and Justice minister
Ziyambi Ziyambi from appointing Supreme Court judges.
In his application, Chingwe, who is represented by the
Zimbabwe Human Rights NGO Forum, sought a relief that the respondents in the
matter should adhere to section 180(4) of the Constitution before the
appointment of the Supreme Court judges to enable persons who are not sitting
judges of other courts to be considered for such appointments.
“The second respondent (Mnangagwa) recently appointed five
judges of the Supreme Court to the Constitutional Court and in the process
created at least five vacancies to the Supreme Court,” Chingwe stated.
“I am also aware of a former judge of the Supreme Court,
who was also dismissed and in the process creating an additional vacancy there.
Therefore, I have a well-grounded apprehension that the respondents are in the
process of appointing candidates for the Supreme Court to the exclusion of a
whole class of persons who qualify for such appointment.”
He argued that there was no hurry to appoint Supreme Court
judges as the country is endowed with capable acting judges sitting in the court.
“If any appointment is made prior to the granting of either the interim relief
I seek or the final relief, I believe I have also made out a case that such
would not render this matter fait accompli (presumably irreversible) and the
appointments will be null and void, with the court being entitled to set them
aside on these papers. There is, however, no warrant for the court to allow a
clear illegality to proceed without being arrested.”
Justice Chitapi will hear the matter tomorrow at 1pm after
directing parties to file their pleadings yesterday afternoon.
But Mnangagwa is proceeding to appoint the judges before
Justice Chitapi rules on Chingwe’s application.
Most of the High Court judges were not cited when Zimbabwe
Human Rights NGO Forum executive director Musa Kika won an order to stop the
extension of Malaba’s term of office by five years.
Mnangagwa’s move has raised suspicion that he wants his
preferred bench to deal with the Malaba case.
Malaba’s matter has nearly paralysed the country’s judicial
system as he wants to have his term extended based on Constitutional Amendment
No 2 Act.
However, the High Court led by Justice Happias Zhou last
month ruled that the extension of the term of office of the country’s top judge
by five years was illegal. Malaba’s term of office ended a fortnight ago after
the High Court ruled that he had ceased to be the country’s top judicial
officer on May 15, the day he turned 70.
Justice Zhou ruled that the recent constitutional
amendments did not apply to Malaba.
Last week, Malaba resumed his duties on the belief that the
High Court ruling had been suspended by an appeal filed by Attorney-General
Prince Machaya and Ziyambi.
However, Kika, who challenged the extension of Malaba’s
term in the initial case, disputed that an appeal against a declarator
suspended the operation of a judgment.
He then asked the courts to find Malaba in contempt and to jail him for
six months.
Malaba filed his response on Tuesday, saying he legally
resumed his duties following the appeal filed at the Supreme Court by Ziyambi
and Machaya against the initial ruling.The Chief Justice said Kika failed to
interpret the law, adding that the rights lawyers’ application was not based on
a good cause as the process that led to his appointment by Mnangagwa was not
set aside. Newsday
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