THE Judicial Service Commission is under pressure to avail documentation that proves President Emmerson Mnangagwa’s extension of Luke Malaba’s contract as Chief Justice for the next five years was done procedurally.
The commission has so far been served with two letters requesting evidence that the JSC was consulted before the controversial appointment was made.
In the letters, one by Honey and Blanckenberg legal practitioners on behalf of the Young Lawyers of Zimbabwe and Frederick Mutanda and the other by Scanlen and Holderness on behalf of Namatayi Kwekweza, the issue of urgency in availing the documents was emphasised, with Kwekweza giving the commission a Monday deadline.
“Reference to Section186(1) of the Constitution as amended and the proviso thereto. More particularly, you must accept that the proviso provides that before the act of assumption of office for ‘an additional five years’ the Judicial Service Commission (‘the JSC’) is required to be consulted,” the letter by Honey and Blanckenberg reads.
“To that end, without any admission to or acceptance that Constitutional Amendment (No.2) is valid, we respectfully request the following documents be made available to us for and on behalf of our clients’. To that end we ask for copies of the following:
“The application letter submitted by Mr. Malaba to His Excellency the President of the Republic of Zimbabwe Cde Emmerson Dambudzo Mnangwagwa (‘the President’) that we expect must have been made available to the JSC in accordance with or pursuant to the consultative process envisioned by the proviso to Section 186(1) of the Constitution seeking an extension of his tenure of office with accompanying annexes if any.”
The parties are also requesting the letter from the President communicating his intent to accept this extended tenure and any reasons therefore together with the medical report referred to in the letter.
Most of all, the young lawyers and Mutanda want confirmation that a consultative process between the President and the JSC took place as required by law.
“If a consultative process did take place, could we be advised: when that took place (date and time); where that took place (venue) and which commissioners of the JSC were present for purposes of the JSC consultative meeting,” the letter read.
They also requested minutes of the deliberations and/or consultation that took place amongst JSC commissioners and the President as well as the recommendations made.
“In either event, could you kindly and with urgency provide us with the requested documentation or provide us with written confirmation that no consultative process took place before the fact of the appointment recorded on the 11th of May, 2021 letter as referred to in paragraph 1 of this letter,” the young lawyers said.
“We must emphasise that this letter and the requests made are substantively different to and distinct from the nature and substance of the pending appeal(s) to the Supreme Court arising from the proceedings in HC 2128/21 HC 2166/21.”
Kwekweza’s request for access to the records is in terms of section 62 of the Constitution of Zimbabwe and in terms of section 7 of the Freedom of Information Act (Chapter 10:33).
“As you are aware, the High Court has found, in the separate matters filed by Musa Kika and Young Lawyers Association of Zimbabwe that these are urgent matters. We also believe that this is information that is immediately available to the JSC. In that respect, we therefore seek an immediate response in terms of Section 7(3) of the Freedom of Information Act Chapter 10:33 and at any rate lo later than end of business day Monday 24 May 2021,” her letter read.
“We draw your attention to your obligations under section 191 of the Constitution which requires that you conduct your business in a just, fair and transparent manner.
The letter also went to request for copies of a resolution of the meeting to deliberate on the extension of Malaba’s tenure by the commission, if such a meeting had been held.
“If a resolution was passed…, which commissioners of the Judicial Service Commission voted in favour of recommending that Hon. Luke Malaba’s tenure be extended for another five years and which commissioners voted against?
“Did any commissioners or members of the board abstain from voting? If so, who? Did Hon Luke Malaba communicate that he was conflicted in relation to this decision? Did the Judicial Service Commission meet to consider whether to become involved in the litigation launched by Musa Kika in the High Court under case number HC 2128/21 and by the Young Lawyers Association of Zimbabwe.”
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