BULAWAYO – President Emmerson Mnangagwa handed Chief Justice Luke Malaba five more years at the helm of the bench on Wednesday, thumbing his nose at growing public opposition and lawsuits filed by lawyers who argue the move is unconstitutional.
Malaba was obliged to leave on Saturday, May 15, when he reaches the ripe retirement age of 70.
But controversial constitutional amendments rushed though parliament by Mnangagwa’s Zanu PF party and its opposition proxy, the MDC-T led by Douglas Mwonzora, empowered the president to prolong the terms of office for judges who would have reached retirement by five years.
The changes, made through Constitutional Amendment (No. 2) Bill, also allow Mnangagwa to appoint senior judges without subjecting them to public interviews.
Despite lawsuits by the Zimbabwe Human Rights NGO Forum and the Young Lawyers Association of Zimbabwe – the former set down for hearing in the High Court on Friday – Mnangagwa pressed ahead and gifted Malaba, telling him he had accepted his “election” to stay.
“I am pleased to advise you that after consultation with the Judicial Service Commission as required by law, His Excellency, the President has in terms of section 186 (1) of the Constitution accepted your election to continue in the office of Chief Justice beyond the age of 70 for an additional period of five years from May 16, 2021,” chief cabinet secretary Misheck Sibanda wrote in a letter to Malaba.
Sibanda said Mnangagwa had “further considered and accepted the medical report which you submitted as proof of your mental and physical fitness to continue in that office.”
The backlash was quick – and furious.
“So, this means judges who are presiding over the constitutional challenges will have to do so knowing that their decision will have a bearing on someone whose term has already been extended, and will be their boss for the next 5 years,” opined Alex Magaisa, legal expert and law lecturer at Kent University in England. “The letter says the JSC was consulted and who chairs the JSC? The beneficiary of this unlawful extension!”
Another lawyer Siphosami Malunga accused Mnangagwa of “knowingly and intentionally” plunging “the country into an irredeemable constitutional crisis. The Chief Justice is now unconstitutionally appointed. This means every decision he makes will be unconstitutional. Is Malaba the only person who can be Chief Justice in Zimbabwe?”
Critics say the Chief Justice is being rewarded for preserving Mnangagwa’s presidency by handing him a controversial electoral victory in a petition brought by main opposition MDC Alliance leader Nelson Chamisa following the contested 2018 elections, which Chamisa maintains was brazenly stolen from him.
Attorneys for Zimbabwe Human Rights NGO Forum executive director Musa Kika will argue in the High Court on Friday that Malaba’s stay is illegal as Section 328(7) of the constitution bars incumbents from benefiting from an extension effected while they are in office.
The human rights defender sued Justice Minister Ziyambi Ziyambi and all the 16 judges of the Supreme Court and the Constitutional Court saying all the Justices must all retire at 70, and not 75, adding the age alteration amounted to “judicial impropriety.”
Still, Mnangagwa’s spokesman George Charamba celebrated Malaba’s stay, tweeting that, “Hapana kana chekumirira apa; kana chimwe zvacho. Basa sebasa CJ (There’s nothing to wait for here; nothing. Down to work CJ [Chief Justice].
