CHIEF Justice Luke Malaba is on course to remaining in office beyond 15 May (next Saturday) when his tenure ends by operation of law following the passing of the Constitution of Zimbabwe Amendment (No.2) Bill by Senate this week which, together with the Constitution of Zimbabwe Amendment (No.1) Bill, are likely to be gazetted today.
By operation of law, Malaba ceases to be chief justice when he turns 70 at midnight on 15 May.
The Amendment (No.1) Bill will enable the President to appoint the Chief justice, Deputy Chief Justice and Judge President without them undergoing public interviews.
Crucially for Malaba, the Amendment (No.2 Bill) seeks to allow judges of the Constitutional Court and the Supreme Court to continue to serve beyond the current retirement age of 70, if the President, after consulting the Judicial Service Commission, consents to their doing so.
It also seeks to permit the President to promote judges of the High Court and the Supreme Court to a higher court on the recommendation of the JSC, without the need for public interviews, thereby opening the door to promotions on the basis of political suitability and cronyism, as is the case with Malaba.
The behind-the-scenes manoeuvres to extend Malaba’s tenure by hook or by crook are being orchestrated by President Emmerson Mnangagwa – the ultimate beneficiary of the extension.
Mnangagwa needs Malaba to help him navigate possible constitutional and legal minefields ahead of the 2023 elections.
With just a week before Malaba’s tenure ends, the JSC has not announced a vacancy by advertising the chief justice’s position, meaning that the shortlisting of candidates and public interviews have not been done.
Justice ministry officials told The NewsHawks that the position has not been advertised because it was known beforehand that there was a plan to amend the constitution to allow for Malaba’s extension.
Crucially also, Malaba has not said his goodbyes unlike his predecessor Godfrey Chidyausiku who announced he would be leaving office when he officiated at the opening of the 2017 legal year. He retired in February 2017 after reaching 70 years.
Malaba has been Mnangagwa’s long-time ally, including when he was deputising the late former president Robert Mugabe, and also while serving as Justice minister well before the November 2017 coup.
The Chief Justice has been a vital cog in Mnangagwa’s political machinery, helping him sanitise and legitimise the coup which toppled Mugabe, and thrust him into power.
Malaba has also run the judiciary in a way that has helped Mnangagwa’s regime, government insiders acknowledge.
The chief justice presided over the 2018 Constitutional Court electoral petition by MDC Alliance president Nelson Chamisa challenging Mnangagwa’s disputed 2018 presidential poll win.
He delivered the Constitutional Court judgement which confirmed Mnangagwa’s disputed 30 July 2018 presidential election victory, after dismissing Chamisa’s petition.
In a unanimous ruling of the nine judges of the country’s top court, Malaba said Chamisa had failed to prove allegations of fraud and manipulation of the vote during the presidential poll.
“Emmerson Dambudzo Mnangagwa is duly declared the winner of the presidential elections held on the 30th of July 2018,” Malaba said in his judgment, which had attracted widespread attention at home and abroad.
It is understood Malaba prevailed over some judges to ensure the unanimous ruling. Some judges wanted to dissent, but were whipped in line, sources said.
Government and judicial officials say Malaba was Mnangagwa’s strategic candidate to replace the late Chief Justice Godfrey Chidyausiku when he was Vice-President and Justice minister, while also plotting to succeed the late former president Robert Mugabe.
The Mnangagwa Zanu PF faction, which battled for power against the rival group that had coalesced around Mugabe’s wife Grace, broadly wanted Judge President George Chiweshe to succeed Chidyausiku. But Mnangagwa personally thought Malaba was the man for the job.
Then as now, Mnangagwa still wants Malaba. Chiweshe, who has a military background, is now viewed by Mnangagwa’s faction as Vice-President Constantino Chiwenga’s loyalist. Mnangagwa and Chiwenga are currently locked in a simmering power struggle.
In a July 2018 ruling that helped Mnangagwa to sanitise the coup which toppled Mugabe, Malaba said Mugabe freely and voluntarily stepped down, adding Mnangagwa’s assumption of power was done in terms of the law, although it was clear he had seized power through a coup.
This followed an application by the Liberal Democrats and Revolutionary Freedom Fighters, Bongani Nyathi, Linda Masarira and Vusumuzi Sibanda who contested the legality of the Mnangagwa-led government.
They argued that Mugabe tendered the resignation under duress and that Mnangagwa’s ascendancy was unconstitutional.
They further said that the impeachment process that was instituted prior to Mugabe’s resignation was unlawful and that it served to coerce him to step down.
However, Malaba, sitting in chambers, ruled the constitutional challenge was frivolous and vexatious given that Mugabe carefully applied his mind and decided to step down without the embarrassment of impeachment.
“The former president’s written notice of resignation speaks for itself,” Malaba said.
“It sets the context in which it was written. He candidly reveals the fact that he had communicated with the Speaker of Parliament at 1353 hours. In the communication, the former President expressed to the Speaker his desire to resign from the Office of President.
“A written notice of resignation addressed to the Speaker and signed by the President, on the face of it, meets the first requirement of constitutional validity.”
Malaba argued that “what the former President said in the written notice of resignation is the best evidence available of the state of his mind at the time.”
“He (Mugabe) said he was free to express his will to resign. Not only does the former President declare in the written notice that he made the decision voluntarily, he gives reasons for doing so in clear and unambiguous language,” Malaba said.
“He said he was motivated by the desire to ‘ensure a smooth, peaceful and non-violent transfer of power that underpins national security, peace and sustainability”.
Malaba said Mnangagwa’s assumption of office was therefore done in accordance with the provisions of the constitution after a vacancy had arisen due to the resignation.
The Chief Justice’s judgment followed a November 2017 ruling by Judge President George Chiweshe which legitimised the coup.
Chiweshe had ruled that the military intervention by the Zimbabwe Defence Forces which led to Mugabe’s resignation was constitutional, as the military sought to restore order in the country.
He said the military’s actions in intervening to stop the takeover of Mugabe’s functions “by those around him are constitutionally permissible and lawful”.
Malaba and Chiweshe thus played a critical role in sanitising and legitimising the coup which propelled Mnangagwa to power.
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