Luke Malaba Court Challenge

Harare High Court Judges, Justices Happias Zhou, Edith Mushore and Jester Charewa ruled that incumbent judges of the senior courts could not benefit from an amendment to the Constitution extending their term limits.

The ruling had the effect of retiring Justice Malaba, who recently turned 70, the legal retirement age.

The bench also ruled that the extension of term provided by section 186 of the Constitution does not apply to any sitting judges of the Constitutional Court and Supreme Court.

The court also ruled that the amendment needs to be put to a public referendum. The Judicial Service Commission temporarily appointed Justice Elizabeth Gwaunza acting Chief Justice before the 1st and 6th respondents separately filed their notices of appeal against the High Court judgment that sought to annul extension of Malaba’s service.^[2]

Government Reaction To High Court Ruling

Ziyambi Ziyambi issued a statement threatening the High Court judges, Justices Happias Zhou, Edith Mushore and Helena Charehwa for their landmark ruling that Luke Malaba had ceased to be Chief Justice.

Speaking to NewsDay, Ziyambi also claimed that the European Union (EU) and the United States were sponsoring non-governmental organisations to interfere with government activities. Ziyambi also said he stood by his statement claiming that he would “expose” the EU and the US “when the right time comes”. He said:

“I will expose the human rights lawyers when the right time comes. They have their human rights defenders whom they pay with money that they are given by USAid and the European Union. The time will come and I will name and shame them, I have the proof. I believe in what I said and I will not change. When the time comes, I will expose the human rights lawyers.”

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Ziyambai's full statement reacting to the ruling by the High Court read:

We have taken note of the decision made by the Court, and as a Country which respects the rule of law, we will respect that decision, but you must also know that as litigants ,we have our rights which are protected by the law.

With the greatest of respect, we do not agree with the decision of the Court for so many reasons and for that reason, we have already instructed our lawyers to file an appeal first thing on Monday morning.

We do not understand how the Honourable Justice Zhou insisted on proceeding with the matter after we sought his recusal because he is clearly conflicted.

We are also at a loss as to how the Honourable Judge President of the High Court was excluded from being cited in the litigation which included all Judges of the High Court who have acted in the Supreme and Constitutional Courts.

We are further alarmed that these proceedings went on through the night up to midnight. This is a typical case of a night court, consisting of night judges and night lawyers.

The Judges have not given us the judgment- they know that it is our right to file a notice of appeal, and we can only do that after we have been favoured with reasons of their decision, which they have not provided us with. Our conclusion is that they are therefore attempting to disable us from filing an appeal because they know that after we file an appeal, their decision will be suspended.

We have nevertheless requested our lawyers to put together our reasons for the appeal with the little information that they have provided us with.

One issue that is worrying which even the most basic layman would want to know is that the Judges appear to base their decision on the interpretation that is given to section 328 (7) of the Constitution and the new section 186 (4) of the Constitution but surprisingly, the interpretation of the provisions was not before them, and secondly, the institutions that put into effect these provisions that is Parliament and the President were not cited in this application- how do they make such a decision without the benefit of having heard the side of Parliament and President who legislated these provisions? How does the Judiciary turn itself into an Executive and Legislature at the same time?

This is a typical case of judicial overreach and as government, we are not going to accept that. This is clear violation of the doctrine of separation of powers- the Judiciary should know where it ends. It is not the big brother of the other two arms of the State which it wants to purport to be. It is just another arm of the State.

I must also mention and make it very clear that we are aware of multi-lateral and foreign organisations who have poured in a lot of money through the Zimbabwe Lawyers for Human Rights to capture various state institutions and to destabilise the Government.

The situation now in this country is that there is a risk of judicial capture where the Judiciary has been captured by certain elements both within and outside Zimbabwe who want to destabilise the second Republic.

We are also aware of certain members of the opposition, the MDC Alliance, who are being paid monthly allowances for causing turmoil in this country and for being arrested.

The time may now have come to expose all these malcontents and economic saboteurs who are not sleeping until they bring down the second Republic.

We are now going to poke the enemy in the eye and confront it.

The time has come also to look at the transformation of the Judiciary- have we really succeeded as a country to transform the Judiciary? You need to only look at various decisions that have been made by a certain group of Judges which are meant to tarnish the second Republic.

How does one Judge whom we are aware of the circumstances of his appointment continue to make decisions that are against then Government? In the eyes of the Judge, does it mean that the Government is always wrong? And how are cases allocated at the High Court? Why does a certain group of Judges including that Judge continue to be allocated cases in which the second Republic is involved in?

What is going on in the Judiciary, more particularly at the High Court? A decision has been made that Judges of the Constitutional Court and Supreme Court are benefiting from Constitutional Amendment Number 2- what about Judges of the High Court? Are they not going to benefit from the same Amendment?

We were told by our lawyers they had agreed with the applicant’s lawyers that the filing of papers and pleadings would be done up to Thursday next week, but the Judges refused to accept these timelines because they were so determined to do away with the decision that had been made by His Excellency.

I want to make it clear today that we do not accept the decision of the High Court. We have a serious situation of a Judiciary that has been captured by foreign forces in this Country.

We are going to exercise our right in terms of the law and file an appeal against this baseless and meaningless decision of the High Court.

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The Law Society of Zimbabwe (LSZ) said the statement by Ziyambi Ziyambi had the effect of diminishing public confidence in the judiciary.

The statement by LSZ read:

17 May 2021 LAW SOCIETY OF ZIMBABWE STATEMENT ON THE COMMENTS MADE BY THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS AFTER THE HIGH COURT RULING ON THE CHIEF JUSTICE’S TERM OF OFFICE.

The Law Society of Zimbabwe (LSZ) has been closely following the two cases filed at the High Court of Zimbabwe on 11 and 12 May 2021 respectively. Following the ruling on the two cases on Saturday 15 May 2021 by High Court Honourable Justice Happias Zhou sitting with Honourable Justice Edith Mushore and Honourable Justice Jester Charewa, social media was awash with a statement attributed to the Minister of Justice, Legal and Parliamentary Affairs Honourable Ziyambi Ziyambi who was cited as a party in the proceedings before the court.

The statement was further extensively quoted in the Sunday Mail of 16 May 2021 and other international media platforms. We have carefully considered the statement and we are of the view that the statement is contemptuous of the court that dealt with this matter. A litigant aggrieved by a court decision has a right of appeal and such displeasure must be addressed through an appeal filed at court. A public statement attacking a court of law has the effect of ridiculing the judiciary thereby diminishing public confidence in the institution.

In this instance, it is our considered view that prima facie, the attacks in the Minister’s statement are unfair, unwarranted and not necessary especially coming from a Minister responsible for justice and who is also a legal practitioner. The statement threatens judicial independence and undermines the principle of separation of powers which are fundamental tenets of the rule of law.

Our country’s Constitution provides unequivocally for the independence of the judiciary for impartial delivery of justice, defending and upholding the Constitution and to act freely without fear or favour. This independence should never be compromised, but should be defended at all costs. The LSZ reaffirms and implores the State, its institutions and every agency of the Government to respect the provisions of Section 164 of the Constitution which provides as follows;

(1) The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.

(2) The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore—

(a) neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts;

(b) the State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness and to ensure that they comply with the principles set out in section 165.

(3) An order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them. (4) The Law Society has accordingly formally asked the Minister to avail the information which was curiously withheld by his counsel and which he has also withheld in his statement.

The Law Society implores the state and every agency of the Government to respect the Constitution and in particular to the provisions referred to above.

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On the other hand, Kika wrote a letter to Judge President George Chiweshe, Registrar of the High Court and the three judges who heard the matter demanding action against Ziyambi.

Through his lawyer Thabani Mpofu, Kika said Ziyambi should be charged for his utterances viewed as undermining the bench.

Part of the letter read:

“On May 15, 2021, the High Court issued an abridged judgment in a matter involving our client, Musa Kika versus the Minister of Justice, Legal and Parliamentary Affairs and 18 other respondents. In response to the judgment, the Minister of Justice, Legal and Parliamentary Affairs issued the statement attached thereto. We believe that the statement scandalises the court and that accordingly, Minister Ziyambi Ziyambi is in contempt of court. We request that you place this letter before the Judge President as well as the honourable judges who heard the matter.”

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In a message posted on his Twitter handle, President Mnangagwa said all Zimbabweans should listen when the courts speak. He wrote:

“In Zimbabwe, the independence of our Judiciary is vital to the survival of our democracy. When our courts speak, all Zimbabweans should listen. The Government of Zimbabwe wholeheartedly respects the independence of our Judiciary.”

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Challenges to the High Court Ruling

A number of challenges against the High Court ruling nullifying the extension of Malaba's tenure were filed. Below are the challenges:

Government Appeals High Court Ruling

On 17 May 2021, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi and Attorney-General Advocate Prince Machaya separately filed their notices of appeal against an urgent High Court judgment at the Supreme Court.

Ziyambi and Machaya sought to have the judgment of the High Court set aside.

In his grounds of appeal, Ziyambi said the High Court judges made errors in their ruling.

He argued that the High Court erred in finding that Musa Kika had a legal basis to obtain the relief that it granted him in the absence of evidence of the violation or potential violation of its members’ right to equal protection and benefit of the law in terms of section 56 (1) of the Constitution of Zimbabwe.

He also argued that the High Court erred in granting the application without having made a declaration that in fact the right of Kika in terms of section 56 (1) of the Constitution of Zimbabwe had been violated.

Ziyambi also questioned the High Court’s reasoning when the constitutionality of Constitutional Amendment No. 2 not having been in question and the High Court having recognised it as a valid law, went on to make a wrong finding that section 186 (4) as amended could not derogate from the provisions of section 328 (7) of the Constitution of Zimbabwe and, therefore, Justice Malaba had ceased to be the Chief Justice of Zimbabwe upon attaining the age of 70.

Part of Ziyambi's appeal read:

“The High Court further erred in finding that the 2nd Respondent (Chief Justice Malaba) attained the age of 70 at 00.00 hours on the 15th of May 2021 when by virtue of section 336 of the Constitution of Zimbabwe the 2nd Respondent (Chief Justice Malaba) attained the age of 70 at the end of day on the 15th of May 2021, that is at 00.00hours on the 16th of May 2021,” argues the Minister. The High Court consequently erred in failing to find that the appointment of the 2nd Respondent as the Chief Justice of Zimbabwe to continue in office made by the President of Republic of Zimbabwe on 11 May 2021 was with legal effect from the 16th of May 2021.”

Ziyambi also added that the court erred in finding that current Judges of the Supreme Court and the Constitutional Court were not entitled to benefit from the new option while at the same time finding that the extension of tenure of judicial service was allowed for High Court Judges.

He argued that the High Court erred in holding that section 186(4) of the Constitution could only apply in the future, and not to the current Judges of the Supreme and Constitutional Court when there was nothing in the constitution suspending the operation of section 186(4) of the Constitution.

He accused the judges of erroneously holding that section 186 of the Constitution as amended increased a term limit provision, and was therefore subject to section 328(7) of the Constitution of Zimbabwe.

He said the Court ought to have found that section 186 did not extend any term limit for Chief Justice Malaba and the Judges of the Supreme and Constitutional Courts.

The Attorney-General also filed a similar notice of appeal as they were both seeking the same relief.^[8]

Malaba returned to work following the noting of appeal by the Government challenging the High Court decision nullifying the extension of his tenure.^[9]

Marx Mupungu's Challenge

A Bulawayo man, Marx Mupungu filed a Constitutional Court application seeking an order nullifying a ruling by three High Court judges that disqualified Luke Malaba's extension as Chief Justice.

He filed the application on 4 June 2021 in terms of Section 175(3) of the Constitution of Zimbabwe, 2013, as read with Rule 31(5) of Constitutional Court Rules, 2016.

Mupungu listed Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi, Judicial Service Commission, Musa Kika, Young Lawyers Association of Zimbabwe, Fredrick Charles Moses Mutanda, Attorney General Prince Machaya and President Mnangagwa as 1st to 7th respondents respectively.

He argued that Mnangagwa acted constitutionally when he extended Malaba's tenure as Chief Justice. ^[2]

Malaba Contempt of Court Application

On 24 May 2021 there were reports that Malaba had turned up for work defying a High Court ruling which said he ceased to be a judge on May 15 2021 when he reached the retirement age of 70.^[10]

After Luke Malaba returned to work, Musa Kika filed an urgent High Court application seeking Malaba's imprisonment for being in contempt of court.

Two judges Justices — Amy Tsanga and Sylvia Chirawu-Mugomba— heard the matter after Justice Webster Chinamora recused himself from the original three-judge bench citing professional reasons.

The two judges ruled that Malaba was not in contempt of court when he resumed his judicial functions after an appeal to the Supreme Court was noted following a High Court decision that the constitutional amendment giving him the option of five more years of service did not apply to him and other senior judges.

In dismissing the urgent application by Kika, the two judges found that the noting of an appeal automatically suspends the execution of a judgment or decision appealed against.^[11]

References