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BY MIRIAM MANGWAYA
CHIEF Justice Luke Malaba will now stay in office for five more years after the Constitutional Court (ConCourt) yesterday overturned an earlier ruling by the High Court that his continued stay in office beyond the age of 70 illegal.
In May, three High Court judges, Justices Happias Zhou, Edith Mushore and Jester Charewa ruled that Malaba ceased being a judge when he became 70, then the retirement age for judges.
President Emmerson Mnangagwa extended the top judge’s term using controversial constitutional amendments that raised the retirement age for judges to 75.
The High Court judges ruled that incumbent justices could not benefit from the amendment of the Constitution which extended their retirement age age.
Government appealed the High Court ruling at the Supreme Court, but before a date could be set to determine the matter, a Zanu PF apologist Max Mupungu lodged a ConCourt challenge against the lower court’s judgment.
The matter was heard in July after the ConCourt judges dismissed an application by the Human Rights NGO Forum executive director Musa Kika to recuse themselves because they were cited in the earlier High Court case.
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Kika snubbed the hearing.
Other defendants, Young Lawyers Association of Zimbabwe and Frederick Mutandah, were in attendance.
But in a judgment delivered yesterday, ConCourt judges Justices Rita Makarau and Bharat Patel ruled that the extension of Justice Malaba’s tenure was constitutional and, therefore, he was legally in office.
“Conversely, the option to continue in office for an additional five years after reaching the mandated retirement age of 70 years, as contemplated in sub-sections (1), (2) and (3) of section 186, does not constitute the extension of any term limit,” Justice Patel said in the judgment.
“The court a quo (lower court) did not differentiate between age limits and term limits and conflated them by ascribing a generalised meaning to term limit provisions. Consequently, it misinterpreted and misapplied the concept of a term limit in the context of judicial tenure under the provisions of s 186.”
The judges added: “The new section 186, in sub-sections (1), (2) and (3), operated to amend only the previously stipulated age limit for retirement, from 70 to 75 years. It did not have the effect of amending or extending the non-renewable term limit of 15 years specified in section 186(2) or the fixed term limits envisaged in section 186(6).”
Responding to the earlier application for the judges to recuse themselves, Justice Makarau said seeking the recusal of the entire court on an “untenable” legal position.
“It makes the application frivolous,” she said.
“We further observe in this regard that, when questioned as to which persons should properly constitute the bench to hear the merits of this matter, in the event that all the incumbent judges of the Constitutional Court and Supreme Court were to recuse themselves, and which authority could be called upon to legitimately appoint such persons to that bench, both counsel for the respondents were studiously unable to enlighten the court with any meaningful answers to those very pertinent questions.”
Mapungu’s lawyer Lovemore Madhuku said the Supreme Court judgment which set aside the May 15 High Court ruling on the chief justice’s tenure had also settled an appeal which had been filed by Malaba at the Supreme Court against the same judgment which ruled that he was retired.
“The judgment settles all issues around the Chief Justice which are pending before the courts,” Madhuku said.
“What is surprising is that the very people who were celebrating that the High Court was independent when it ruled against the chief justice’s extension of tenure are the very people who now say the ConCourt is captured.
“People should not be selective on what courts or judges consider impartial. When people choose the court as battlegrounds, they must be comfortable when they lose the battles.”
Kika said he would comment after getting the entire judgment.
Andreas Dracos, who represented YLAZ in the matter, was not reachable, but the young lawyers’s spokesperson Emma Drury said they had taken note of the judgment handed down by the ConCourt.
“We have taken note of the judgment handed down by the Constitutional Court today in the matter concerning Marx Mupungu v Minister of Justice and six others,” she said.
“While we are still going through the extensive judgment in detail, we are disappointed by the order which was handed down this morning. In our view, the opposition raised by Musa Kika, Fred Mutanda and ourselves in respect of the many procedural issues, as well as the substantive claims raised by the applicant, had merit and ought not to have been dismissed.”
Added Dracos: “The decision of the Constitutional Court today, on a matter in which the judges had an interest, and where the applicant was not a party in the initial matter, effectively sets aside the decision of the High Court and renders the pending Supreme Court appeals moot.
“The decision of the bench to hear the matter and thereafter the decision to set aside the High Court judgment creates a worrying precedent and further highlights the confusion faced by litigants, as well as legal practitioners, who are working within an uncertain legal system. We stand by our initial application and undertake to continue to act to protect the Constitution and uphold the rule of law.”
Follow Miriam on Twitter @FloMangwaya
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