THE opposition CCC’s decision not to challenge in court the results of the discredited 23 August general elections has denied President Emmerson Mnangagwa’s close ally, Chief Justice Luke Malaba, another chance to be the ace up the Zanu PF leader’s sleeve, like five years ago when the judiciary upheld his controversial win.
Mnangagwa was desperate to have Malaba in charge of the judiciary ahead of the 2023 elections, such that the Zanu PF strongman trashed the constitution and spearheaded significant amendments which enabled him to consolidate power while ensuring that the Chief Justice’s tenure was extended beyond the previous retirement age of 70.
Zanu PF insiders told The NewsHawks at the time that Mnangagwa wanted Malaba to superintend over any electoral challenges, like he did in 2018.
Malaba turned 70 on 15 May 2021, but thanks to the Constitution of Zimbabwe Amendment (No.1 and No.2) Bills which Mnangagwa assented to, he remains in office. The amendments aided Mnangagwa’s power consolidation bid, by weakening other arms of the state such as the judiciary.
On 6 April 2021, the Zimbabwean Senate passed Constitutional Amendment Bill (No.1), which had been declared null and void by the Constitutional Court (ConCourt) on 31 March 2020, after it was unconstitutionally approved by the upper House on 1 August 2017 without the required two-thirds majority (54 votes out of the total 80 membership — meaning the Bill had failed to meet the required majority threshold by one vote).
The main effect of the Bill was to change the procedure for the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court.
These appointments are now made by the President after consultation with the Judicial Service Commission (JSC).
The Zimbabwe Amendment (No.2) Bill allowed Mnangagwa to remove the running mate close so that he has a pliant deputy, while giving him greater control over cabinet, the Prosecutor-General and Public Protector.
Crucially also, it permitted 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.
It allowed judges of the ConCourt and the Supreme Court to continue to serve beyond the current retirement age of 70, if the President, after consulting the JSC, consented to their doing so.
This effectively stripped judges of their security of tenure, thus their independence, since they will hold office from year to year subject to the President’s whim.
As observed by legal watchdog Veritas at the time, the independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance. Judicial officers are also expected to be independent and impartial, and must be perceived to be so by the general public.
However, by increasing the President’s power over judges, the Bill effectively reduced their
independence and their perceived impartiality.
In the public interest, The NewsHawks rehashes and republishes a story we first ran on 19 February 2021 explaining why President Emmerson Mnangagwa desperately wanted the amenable judiciary boss to remain in office for another five years renewable annually.
That way, Malaba’s new tenure would be entirely dependent on Mnangagwa’s whim and caprice, posing a fatal danger to judicial independence and democracy, whi are already in the intensive care unit.
The stakes were very high in the elaborate power retention plot by Mnangagwa and Malaba ahead of the 2023 elections, with far-reaching political, constitutional and rule of law, as well as governance and accountability implications.
Now that the Zimbabwe has held yet another controversial election rejected as a sham by many observers, including the Southern African Development Community (Sadc) in a major dramatic and unprecedented political move never seen before in the region, the stage was set for Malaba to deliver for Mnangagwa again.
Why Mnangagwa wanted Malaba to stay
Despite the fact that Chief Justice Luke Malaba’s judicial career was supposed to end by operation of law at midnight on 15 May 2021 when he turned 70, President Emmerson Mnangagwa wanted him to stay on ahead of the 2023 elections in a brazen high-stakes political power retention plot which marks a new low even by Zimbabwe’s poor democratic standards, top official sources say.
Malaba — who sits at the helm of the third pillar of state as head of the judiciary — 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.
Mnangagwa heads the executive, while the legislature is under Zanu PF control.
The media, also known as the fourth estate or an informal fourth pillar of the state, is largely under Mnangagwa’s control, especially following the now-so-open capture of private media houses by his regime. The public media has always largely been Zanu PF’s mouthpiece.
Ahead of the 2023 elections, six new television licences were dished out to the Mnangagwa administration’s allies, leaving a vast swathe of the media landscape under government or Zanu PF control and influence as part of the political strategy of cooption and capture of dissenting voices with all sorts of incentives brandished to the targets in exchange for direct or tacit support.
The Chief Justice has been a vital cog in Mnangagwa’s political machinery, helping him to 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 to consolidate power, government insiders say.
Crucially also, Malaba delivered the Constitutional Court judgment which confirmed Mnangagwa’s disputed 30 July 2018 presidential election victory, after dismissing an electoral petition by main opposition MDC-Alliance leader Nelson Chamisa.
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 that 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.
Chiweshe, who has a military background, was viewed by Mnangagwa’s faction as Vice-President Constantino Chiwenga’s loyalist. Mnangagwa and Chiwenga are currently locked in a simmering power struggle.
In his monograph on the presidential election, Excelgate: How Zimbabwe’s 2018 Presidential Election Was Stolen, former minister and MP Jonathan Moyo — an ex-Mnangagwa ally — says the Zimbabwe Electoral Commission helped Mnangagwa to rig the 2018 elections.
Moyo, also a professor of politics, says Malaba dismissed Chamisa’s application soon after receiving it while in Pretoria, South Africa, where he was attending his son’s wedding, which suggests a pre-determined outcome.
“While there, Malaba received a copy of Chamisa’s ConCourt application from a senior legal officer at the Judicial Service Commission as he was relaxing by the swimming pool at Pretoria Sheraton Hotel,” Moyo writes.
“After reading the application, Malaba turned to the judicial officer and asked him ‘Is that all’? to which the officer replied ‘Yes Sir’. Malaba then shook his head and remarked: ‘Ok, akula lutho la (There is nothing here).
“By those words, Malaba meant there was no case and he was going to have Chamisa’s application dismissed, even before the case was heard on its merits.”
Moyo further said Malaba’s attitude was not surprising, given the close relationship between the two.
“When I worked closely with him and Emmerson Mnangagwa between March 2013 and December 2014, in the run up to his election as Vice-President and second secretary of Zanu PF at the expense of Joice Mujuru, Mnangagwa used to refer to the late Chief Justice Godfrey Chidyausiku as mutengesi (sellout) and to Malaba as munhu wangu uyo (my man).”
In a July 2018 court ruling, 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. It was also common cause Mugabe has resigned at gunpoint.
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 — surrounded by the army — 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.
“The Speaker must have advised him that for the resignation to have the legal effect of bringing his presidency to an end, it had to be communicated to him by means of a written notice.
“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. He did not address the issue of former vice-president Phelekezela Mphoko who was the next in line to take over in the interregnum, as the last acting vice-president after Mnangagwa’s dismissal, in terms of the constitution.
The Chief Justice’s judgment followed a November 2017 ruling by Justice 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 brought Mnangagwa to power.
Judges always play a critical role in legitimising coups the morning after.
A government official told The NewsHawks in 2021 that Mnangagwa was confident Malaba is loyal to him and must therefore stay on for the 2023 elections and other issues.
“He has demonstrated beyond any reasonable doubt that he is loyal to the President. He helped him during Chamisa’s ConCourt application and played a big role to legitimise his rise to power. So that’s why the President wants him to remain in the position with 2023 in mind,” the official said.
All of Zimbabwe’s presidential elections since 2002, except the bloody 2008 poll, have been contested in the courts. After his appointment as chief justice in 2017, Malaba has sought to control the judiciary to help Mnangagwa’s administration consolidate power, insiders say.
As a result, there has been no separate or dissenting judgment in the higher courts since then. A separate judgment is when a judge differs with colleagues usually on reasons, but not necessarily on the conclusion.
The reasoning forming the basis of the court’s decision is separate from the judgment and is called “reasons” or “reasons for judgment.”
A dissenting judgment is when a judge differs with colleagues on a judgment and writes his or her own ruling.
Judges were always concurring until the Justice Rita Makarau judgment on Constitutional Amendment (No. 1) Bill of 25 February 2021 in which Justice Anne-Marie Gowora wrote a sharply dissenting ruling on how Senate must handle the issue. This was before senate on 6 April passed the Bill, which now awaits presidential assent into law, amid a series of constitutional and legal irregularities.
Ironically in 2013, Malaba, then deputy chief justice, wrote a prominent dissenting judgment in a case in which political activist Jealousy Mawarire approached the courts to force the government to hold elections by 31 July that year, while opposition parties wanted reforms first to ensure credible polls.
The constitutional court granted the order, although Malaba and Justice Bharat Patel dissented and had “reasons for judgment” respectively, with the judgment directing Mugabe to hold elections by 31 July 2013.
This was despite the court finding that Mugabe was in breach of his constitutional responsibilities.
Malaba famously said the judgment “defied logic”.
“That is a very dangerous principle and has no basis in law. The principle of the rule of law just does not permit such an approach,” said Malaba.“I, however, refuse to have wool cast over the inner eye of my mind on this matter.”
In his book, Moyo also says in the run up to the coup, Mnangagwa worked hard to amend section 180 of the constitution to bar public interviews for the Chief Justice, Deputy Chief Justice and Judge President so that he could handpick his preferred judges when he came in.
“When the amendment was introduced by Mnangagwa shortly before the coup, its intended beneficiaries were Mnangagwa himself and Malaba. It is not surprising that, with the amendment in their pocket, now Mnangagwa wants to raise the retirement age for judges to ensure that Malaba remains at the helm of the judiciary to do in 2023 what he did for him in 2018,” Moyo writes.
Moyo says those who saw Malaba as a jurisprudentially progressive judge have been surprised and disappointed by his support of the coup, and the subsequent repression.
“The point many have missed is that Malaba was anti-Mugabe and pro-Mnangagwa, not a neutral judge bound by constitutionalism. For Malaba it was personal and thus had nothing to do with justice, constitutionalism or progressive jurisprudence.”
Government officials this week said Moyo was correct in his assessment of Mnangagwa and Malaba’s relations and their 2023 electoral agenda.