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High Court releases full judgement on Malaba case



THE High Court has released the full judgement blocking the extension of Chief Justice Luke Malaba’s term, ruling that as the incumbent he could not benefit from an amendment of the constitution extending term limits.


According to the judgement by High Court judges Happias Zhou, Jester Charewa and Edith Mushore, tenure is defined by both the fixed term and the stipulated retirement ages.

The judgement is in respect of two matters that were heard together on 15 May challenging President Emmerson Mnangagwa’s extension of Malaba’s term in office by five years, after he reached the age of 70.

The applications were, one by lawyer Musa Kika versus Justice minister Ziyambi Ziyambi, the Judicial Service Commission (JSC), Luke Malaba and other judges of the Supreme Court and Constitutional Court and another application between Young Lawyers Association with Frederick Mutanda versus the JSC, Malaba and Attorney-General Prince Machaya.

“In terms of s328 (7) of the constitution, such an extension is an amendment to the Constitution. It cannot benefit the persons who held or occupied the office at any time of the amendment,” the judgement read.

“Any extension of the length of time that persons who were judges of the Constitutional Court and Supreme Court to the amendment of s18 through the Constitution of Zimbabwe Amendment (No.2) 2021 would be a violation of the applicants’ right as protected by s56 (1) and s69 (3) of the Constitution of Zimbabwe”.

The judges said at the time the applications were filed, he had not turned 70. They said the applications were filed following indications that he might or would benefit from the new section 186 of the constitution by having his tenure extended by another five years.

“In view of the conclusion we have reached, Honourable Justice Luke Malaba ceased to be a judge of the Constitutional Court and Supreme Court at 0000hours on 15 may 2021 when he turned 70 years. Equally he ceased to be the Chief Justice of the Republic of Zimbabwe at that time. Nothing turns on the letter of 11 May 2021. When it was written that was the same day that the application was filed. The letter of 11 May was intended to take effect only on 16 May 2021, on which date the then incumbent would have ceased to be a judge some twenty-four hours earlier.”

“An absurd situation, which neither the Executive nor the Legislature would have intended, would have resulted whereby the country would be without a Chief Justice for the period of 24 hours between 0000 hours on 15 May 2021 and 0000 hours on 16 May 2021.

“There would have been nothing to extend since he would have ceased to be a judge and chief justice of Zimbabwe. Thus, any purported extension of the second respondent’s occupation of the office of judge of chief justice remains a nullity because there was nothing to extend once he ceased to be a judge at the inception of 15 May 2021. This is so whether the extension is said to have been constituted by his election to remain in office or by the letter of 11 May 2021, the judgement reads.

The other judges of the Supreme Court and the Constitutional Court who occupied office before the constitutional amendments have also been affected by the same judgment as it reads that they cannot have their term in office extended beyond 70 years based on section 186 of the constitution. However, acting judges have not been affected as they are just acting and there was no extension to the length of term in office.

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