Malaba term extension was legally sound – Con Court 

by | Sep 22, 2021 | Crime & Courts | 0 comments

Hosia Mviringi

The Constitutional Court of Zimbabwe has ruled that that the extension of Chief Justice Luke Malaba`s tenure in office by another five term is consistent with the law.

Chief Justice Malaba was granted another five years in office by President Mnangagwa in May this year, after he had turned 70.

The extension saw some sections of the civil society approaching courts, directly and through proxies to, in contention.

Today’s ruling comes as a result of an appeal by a Bulawayo man Mr Max Mupungu who challenged an earlier High Court ruling which had declared Chief Justice Malaba’s stay as illegal and constitutionally invalid.

The High Court had conceded to a request and petition by the NGO Forum Executive director Mr Musa Kika and other lawyers who believed that the Constitutional Amendment number 2 Act of 2021 that validated his appointment to stay on up to the age of 75, should have been subjected to a referendum.

The Constitution of Zimbabwe Amendment Number 2 Act of 2021 among other provisions empowered the President to consider and appoint Judges to higher courts without the need for public interviews.

It gave the President the leeway to consider and approve applications by senior judges to stay on after expiry of tenure and to consider for promotion to higher courts.

Mr Mupungu approached the Constitutional Court seeking an order nullifying the High Court ruling.

Prior to today’s Constitutional Court ruling, the Supreme Court had ruled that President Emmerson Mnangagwa had actually not violated the constitution of Zimbabwe when he accepted Chief Justice Malaba’s choice to serve for another five-year term subject to a clean medical report.

However, this ruling by the Supreme Court could not be implemented due to its Constitutional nature, thus the need for strict interrogation and validation by the highest court in the land.

Speaking today after the Constitutional Court ruling, top lawyer Professor Lovemore Madhuku who represented Mr Max Mupungu in this challenge, said that the Constitutional Court merely sat to interrogate the validity of the Supreme Court ruling since it is a constitutional matter.

“The Supreme Court had set aside the decision of the High Court which had said that Chief Justice Malaba was not legally in office.

It is simply because such judgements have to be thoroughly examined and confirmed by the Constitutional Court before having any validity,” said Professor Madhuku.

“Which means that as it stands, the Chief Justice properly elected to remain in office until the age of 75 and that the President properly approved that election. It also means that from day one, we never had any problem with Chief Justice Luke Malaba being Chief Justice of the land,” added Professor Madhuku.

This puts to rest suggestions by other law fundis who had pressed the panic button alleging a Constitutional crisis in Zimbabwe.

Legal authorities in Zimbabwe refused the assertion and were absolved by the Constitutional Court in today`s ruling.

As the matter is brought to its logical conclusion, the nation is left with many questions unanswered as to the nature and competence of most Zimbabwean legal practitioners, as some of the most flamboyant and charismatic lawyers continue failing the test at the highest Courts where legal comprehension skills are put to a rigorous test.