ZIMBABWE Human Rights NGO Forum executive director Musa Kika yesterday filed a fresh application seeking the recusal of judges set to preside over a case where a Zanu PF activist wants the Constitutional Court to overturn a High Court ruling on Chief Justice Luke Malaba’s continued stay in office.
President Emmerson Mnangagwa extended the top judge’s term
using a controversial constitutional amendment that extended the retirement age
for judges to 75.
But three High Court judges, Justices Happias Zhou, Edith
Mushore and Jester Charewa ruled in May that Malaba ceased to be chief justice
judge after attaining the age of 70, which was the retirement age for judges
prior to the constitutional amendments.
Marx Mupungu, represented by Lovemore Madhuku, applied to
the ConCourt challenging the High Court ruling, arguing that Mnangagwa acted
constitutionally. The case will be heard today ahead of a Supreme Court appeal
by government over the ruling.
All the Supreme and Constitutional Court judges cited in
Kika’s case also appealed the High Court ruling. Legal experts have been
calling for their recusal, arguing that they were conflicted parties.
The court has already appointed a friend of the court
(amicus curiae), Advocate Tawanda Zhuwarara, to assist with Madhuku’s
application.
Zhuwarara on Monday filed his heads of argument seeking to
have Kika’s case dismissed on a technicality.
The judges will today decide whether to proceed with the
case after Kika cited 18 of them in his latest application seeking their
recusal from presiding over the matter.
They will also decide whether to give Kika time to respond
to issues raised by Zhuwarara. The 18 judges were also cited as respondents in
his first application under case HH264/21 in which he challenged the extension
of Malaba’s tenure.
In his application, Kika argued that the High Court ruling
handed down on May 15, 2021 by a three-member panel affected the same judges
who were set to make a determination on Mupungu’s application at the ConCourt.
He is also seeking relief that in the event that Malaba,
cited as the first respondent in the matter, was confirmed to hold the office
of chief justice, he too had to recuse himself from hearing the matter in
Mupungu’s case CCZ13/21.
“This is an application made in terms of section 85(1) of
the Constitution of Zimbabwe for the recusal of the cited honourable judges
being second to 17th respondents and of Luke Malaba (the first respondent), in
the event that he is found to still be the Chief Justice of Zimbabwe, from
hearing the matter under case number CCZ13/21 as that would infringe the
applicant’s right to a fair hearing as provided by section 69 of the
Constitution of Zimbabwe” Kika stated in the court papers.”
“My emphasis is on the constitutional requirement of impartiality and independence of an adjudicating body. This is by no means a mathematical concept, but one that is gleaned from circumstances surrounding a matter.
“I submit that there cannot be greater indication of the
possibility and potentiality of partiality when the order being sought before
the cited honourable judges under CCZ/13 concerns them directly and further is
pertaining to a High Court matter in which the honourable judges are not only
parties, but which they have opposed and now have appealed against. The appeal
is pending.”
Zhuwarara, in his heads of arguments as a friend of the
court, said Kika’s case should be dismissed because he did not seek leave to
sue Malaba and his deputy, Elizabeth Gwaunza, as prescribed in Order 3 Rule 18
of the High Court.
According to Zhuwarara, Order 3 Rule 18 of the High Court
states that no summons or other civil process of the court may be issued
against the President or any judge of the High Court without leave of the court
granted on court application made for the purpose.
“It is noted by present counsel that the CJ Malaba and the
Deputy Chief Justice Elizabeth Gwaunza were cited as respondents in the
proceeding a quo,” Zhuwarara said.
“Both the chief justice and deputy chief justice are High
Court judges by operation of section 170 of the Constitution and no
litigation can be instituted against
them unless leave to sue is obtained in terms of Order 3 Rule 18 of the High
Court rules (1971).”
He said the High Court erred by entertaining Kika’s
application before obtaining leave to sue a judge of the High Court.
“As there were no valid proceedings in the court a quo
(lower court), it follows that the constitutional issues and questions dealt
therein were improperly determined,” Zhuwarara said.
“Put bluntly, the declaratory order that causes these
confirmation proceedings cannot be even engaged on the merits as the High Court
did not have the requisite jurisdiction to proceed to deal with the merits of
the disputation.” Newsday
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