THE Judicial Service Commission (JSC) is seeking to have the application challenging the extension of judges’ retirement age from 70 to 75 years dismissed on several grounds.
In a responding affidavit to lawyer Musa Kika’s application, JSC secretary Walter Chikwanha also wants the judges hearing the matter to recuse themselves, alleging that they would be biased.
He says the application should also be dismissed on technicality, on grounds of incompetence, that it was not urgent and that it failed to cite the necessary parties in the case.
Chikwanha said the three High Court judges appointed by Judge President George Chiweshe, namely Happias Zhou, Edith Mushore and Jester Helena Charewa, to preside over the case of 17 senior judges, should be replaced.
“There is still no explanation from the applicant why he has not included the Judge President. It may be that the omission is purely fortuitous. However, it also creates a suspicion and a perception that the bench appointed to hear the matter may be tainted with bias having been appointed by the Judge President who is not also a respondent in the matter,” he said.
“I wish to express my objection to the present bench sitting to preside over this matter, and to request that the honourable judges in that bench recuse themselves from matter. I do not mind having the next most senior judge to the Judge President who has not acted as a judge of Supreme Court then appointing another bench of three judges to preside over this matter.”
He said Justice Zhou should recuse himself, alleging he “has a direct and personal interest in obtaining a seat as a judge of the Constitutional Court”.
Chikwanha further argues that the amendment had already become law and that Chief Justice Malaba’s contract had been renewed by President Emmerson Mnangagwa for the next five years.
“It is respectfully submitted that, to the extent that the application is not seeking to invalidate the Constitution Amendment (No.2), the relief sought by the applicant is incompetent. The amendment, i.e Constitutional Amendment (No.2), is now part of the Constitution of Zimbabwe and is now the law. Until such time as it is declared invalid or set aside, no cause of action can arise in terms of the relief sought based on the previous unamended constitution of Zimbabwe 2013.”
“The main declaratory relief sought by the applicant (Musa Kika ) herein is predicated upon the Court finding that the Constitution of Zimbabwe Ammendment (No.2) Act, 2021, or the amendment to section 186 of the Constitution was irregular and not in compliance with section 328 of the Constitution.”
Kika wants Chief justice Luke Malaba to cease holding the post at midnight on 15 May and any action he does to be ruled null and void and of no effect.
“In accordance with provisions of section 181 of the Constitution of Zimbabwe 2013, with effect from midnight on the 15th of May 2021, Elizabeth Gwaunza became/becomes the Acting Chief Justice of Zimbabwe until such a time as a substantive Chief Justice of Zimbabwe is appointed.
“In accordance with provisions of section 181 of the Constitution of Zimbabwe 2013, with effect from midnight on the 15th of May 2021, Paddington Garwe became or becomes the Acting deputy chief Justice of Zimbabwe until such a time as a substantive deputy chief justice of Zimbabwe is appointed.
“In accordance with provisions of sections 186 (1) (a) and 186 (2) (of the Constitution of 2013) in their original from and notwithstanding provisions of Constitutional amendment number 2, second to seventeenth respondents hold office until they reach the age of seventy years, whereupon they must by operation of law retire.”
Chikwanha however challenged that, saying the High Court did not have jurisdiction to grant the relief sought by Kika.
“The consequential relief sought by the applicant gives effect to an order of constitutional invalidity without it having been confirmed by the Constitutional Court as required by section 167 (3) of the Constitution. I am advised that the High Court has no jurisdiction to grant the consequential relief sought herein by the applicant.”
“The application must fail on the basis of this court’s lack of jurisdiction to grant the consequential relief,” he said.
Chikwanha said Kika failed to include the Parliament and Mnangagwa, who were responsible for the processes that made the amendment into law.
He said failure to cite Parliament, the Speaker of the National Assembly and the President of Senate as parties hereto is a material non-joinder which renders the application fatally defective.
“I am also advised that the failure to cite the President of Zimbabwe in these proceedings is also a fatal misjoinder as the President is responsible for assenting to any Constitutional Bills that have been validly passed by the National Assembly and Senate.”
“I am further advised that the citation of the third respondent, Deputy Chief Justice, the fourth to eighth respondents, judges of the Supreme Court and current acting judges of the Constitutional Court; the ninth to 14th and 18th respondents, judges of the Supreme Court and the 14th to 17th respondents, judges of the High Court currently acting as judges of the Supreme Court is highly improper and irregular.
“The 3rd to 18th respondents have no material interest in the subject matter and their citation herein is a fatal mis-joinder aimed at terrorising and embarrassing the sitting judges of the Constitutional and Supreme Courts.”
He also argues that it is not an urgent matter, also noting that Kika’s allegation that judges had received gifts or favours had unnecessarily brought the judiciary into disrepute.
While Kika argues that the change of the age limit had a direct influence on the change of term limits, Chikwanha claims that the issue of the age limit was different from that of term limits which requires a referendum to be changed.
Chikwanha said the application was also defective as no leave was sought and granted before sitting judges were sued.
“I am advised that Rule 18 of the High Court Rules prohibits civil process being instituted against judges of the High Court without leave having been first granted by this honourable Court. I aver that the present application is fatally defective as no leave was sought and granted before proceedings were instituted against the 2nd and 3rd respondents as well as the 15th to 17th respondents who are judges of the High Court.
“… any judge of the High Court has the potential to become a Supreme Court and/or Constitutional Court Judge in due course. If this honourable Court adopts this approach to litigation, it means all the Judges of the High Court in Zimbabwe ought to have been cited as parties in this matter,” he said.
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