THE constitutional crisis currently unfolding in Zimbabwe has left the reputation and moral authority of former Chief Justice Luke Malaba in tatters, analysts have said.
NYASHA CHINGONO
Malaba, who was appointed the country’s top judge in 2017, was once touted as a progressive jurist, who would spearhead Zimbabwe’s judicial reform following the tumultuous and controversial tenure of his predecessor, Godfrey Chidyausiku.
However, four years on, Malaba is at the centre of a constitutional crisis. The national constitution has been mutilated in his name.
The latest constitutional drama that ensued after he turned 70 has been slammed at home and abroad, as the international community watches in utter disgust as the government prioritises political expediency at the expense of the rule of law.
Laymen and experts alike have described the unfolding crisis as a manifestation of judicial capture by power-mongering executive.
Malaba’s undignified fight for his job brings to an embarrassing end a long career which has had its good and bad aspects.
That it had to take a group of young lawyers to go to the High Court and win an order stopping the five-year extension of his tenure reflects badly on not only President Emmerson Mnangagwa, who is the chief culprit, but also on Malaba who should have known better as a sharp legal mind.
Although the government has noted an appeal, a vitriolic statement by Justice minister Ziyambi Ziyambi attacking the three High Court judges who handled the case has further tarnished Malaba’s image in the court of public opinion.
He is now largely viewed as a pawn in President Mnangagwa’s power consolidation and 2023 re-election agenda.
Once held in high esteem in the legal profession, Malaba, in 2013, alongside Justice Bharat Patel, dissented to a Constitutional Court judgement directing the late former president Robert Mugabe to hold elections by 31 July 2013 despite the court finding that Mugabe was in breach of his constitutional responsibilities.
In his dissenting judgement, Malaba famously said: “…I however refuse to have wool cast over the inner eye of my mind on this matter.”
This was after a private lawsuit by politician Jealousy Mawarire forcing Mugabe to call for an early poll. Finding against a sitting president was considered not only a rare spectacle but also an honourable move in the eyes of observers.
A bright legal mind often considered “politically incorrect” during Mugabe’s 37 years in power, Malaba’s reputation in legal circles had remained intact, until 2017.
In 2017, on his watch, a High Court judge ruled that the military takeover of the government by President Mnangagwa was not a coup. At the same time, another court also ruled that Mnangagwa’s sacking by Mugabe earlier was illegal.
The two rulings would set the tone for how the judiciary would operate under Malaba in Mnangagwa’s “new dispensation”.
By sanitising the 2017 coup, Malaba proved his long-standing allegiance to Mnangagwa, a move that observers at the material time said was tantamount to a capture of the judiciary.
His next task would be to legitimise Mnangagwa’s wafer-thin victory over MDC Alliance leader Nelson Chamisa at the Constitutional Court.
Analysts said during the election challenge, Malaba took every opportunity to throw jabs at the MDC Alliance lawyers and poke holes in their case. Malaba insisted that the lawyers adduce primary evidence to support their rigging claims.
“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 attracted widespread attention at home and abroad.
History will judge Malaba harshly for what is seen by some critics as his clumsy attempt to exert unmeasured control over the judiciary.
Last year, Malaba dispatched a staff memorandum ordering that all judgements be read and approved by the head of court.
This caused a furore at home and abroad, with critics saying the directive infringed on judicial independence. It was also largely viewed as a way of denying freedom to most opposition leaders, imprisoned at that time for either violating lockdown rules or draconian incitement to public violence charges.
With Malaba at the helm, many magistrates denied bail to opposition activists, with some of them spending more than 70 days in pre-trial detention.
Commentators say lawfare was routinely used to silence political dissent by denying bail, which is a fundamental right.
Lawyer Tendai Biti said Malaba’s legacy is irredeemable in light of the constitutional crisis that his renewal of tenure has caused.
“It is a tattered legacy and he will go down in history as one of the worst chief justices. He was created out of a democratic process, but has failed to leave any meaningful jurisprudence,” Biti said.
“He held the bench with an iron fist and weaponised the law, especially in relation to bail. He is done, he is a disaster.” Biti added: “We are in a constitutional crisis when one arm of the state attacks the other and when the country operates without a substantive chief justice.”
Malaba would have been crucial in securing Mnangagwa’s second term in office in 2023.
As reported by The NewsHawks in a series of articles on Mnangagwa’s power consolidation drive, Malaba has been critical to the President’s political survival.
Malaba has been Mnangagwa’s long-time ally, including when the strongman was deputising Mugabe, and while serving as Justice minister well before the November 2017 coup.
There is a sense that all the madness surrounding the failed quest to prolong Malaba’s tenure was a ploy to keep the incumbent in power beyond 2023.
Political analyst Ibbo Mandaza said: “His legacy coincides with one of the most tumultuous periods in Zimbabwean history — the coup, the 2018 ConCourt ruling and the current debacle. They all cast him in bad light.”
“In contrast to some of his predecessors like (Enoch) Dumbuchena and Robert Tredgold, who all served honourably, he has become the first chief justice in post-independence Zimbabwe to be embroiled in controversy.”
