LEGAL advice given to CCC leader Nelson Chamisa says Chief Justice Luke Malaba and Constitutional Court judges are “fully and faithfully captured” by President Emmerson Mnangagwa and had received hefty bribes ahead of the 23 August general elections such that they were not expected to be impartial when handling the opposition party’s electoral challenge.
The lawyers also highlighted the fact that Mnangagwa amended the constitution to extend Malaba’s tenure at the helm of Zimbabwe’s judiciary to ensure he presides over any electoral disputes meant there was no chance of a successful application.
The CCC did not challenge the election results after obtaining the advice, although the polls were condemned by the Southern African Development Community (Sadc) Election Observer Mission.
The Sadc team highlighted that the polls fell short of constitutional, Electoral Act and Sadc requirements. The joint African Union-Comesa mission also condemned aspects of the elections.
Article 11.7.1 of the Sadc Principles and Guidelines Governing Democratic Elections mandates the region’s observer mission to observe the conduct of procedures and processes concerning electoral complaints and challenges by citizens, prospective voters and those seeking election, including the provision of effective remedies for violations of election-related rights.
Lawyers however argued that the domestic remedies are not effectual in the case of Zimbabwe.
“In the case of Zimbabwe, those remedies are not available at all. The Zimbabwean judiciary is fully and faithfully captured,” the lawyers said.
“Infamously, Emmerson Mnangagwa has bragged that he is the army, the police and ‘the judiciary’, a claim typified by the continued incarceration of Citizens’ Coalition for Change (CCC) senior official Job Sikhala on trumped-up political charges which were meant to exclude him from the elections. Indeed, one of the CCC candidates, Godwin Hakata, won the national assembly elections whilst in prison, having been arrested for taking part in a car procession on his way to a sanctioned rally.
“Zimbabwe lacks a functional separation of powers. The executive fully controls the judiciary and that has been enabled by a skewed appointment system in terms of which Mnangagwa has stuffed the courts with his sympathisers.
Though Zimbabwe has a public interviews systems that precedes the appointment of judges, it is an open secret that the results of those interviews have been religiously ignored.”
The lawyers said the lack of separation of powers had led to the politicisation of judicial institutions.
Party lawyers said various judgments “show beyond any doubt that the judiciary is disposed towards Mnangagwa and does not consider itself bound to the constitutional ideal of independence”.
“For this reason, even judges whose behaviour has been errant, have upon pledging loyalty to Mnangagwa, been spared from giving account. A case in point is that of Justice Chinamora whom the Judicial Service Commission recommended must face a tribunal arising out of clear misconduct,” the lawyers said.
“Though Mnangagwa is constitutionally enjoined to appoint such tribunal, he has not done so to date. Going into the elections, Justice Chinamora heard more than ten electoral challenges, found in all against the challengers and is definitely paying back Mnangagwa for his decision to protect him.
“In that regard, it must also be noted that the Chief Justice designated all High Court judges as Electoral Court judges but only a handful, being not more than five judges, heard matters in the Electoral Court.”
Chief Justice Malaba
In terms of the 2013 constitution of Zimbabwe, Malaba should have retired on 15 May 2021 when he turned 70 years.
Lawyers however said: “In a bid to ensure that he would be available to deal with any electoral disputes in 2023 having come to his aid in 2018, Mnangagwa unlawfully amended the constitution and extended Malaba’s retirement age to 75, the first time a whole constitution was amended to accommodate one person, and a judge at that.
“The extension was a fool’s errand because in terms of the constitution, any extension of a term limit must not benefit the incumbent.
“The matter was litigated upon. The High Court per three judges, all of whom have now been victimised in various ways, held that Malaba’s term could not be extended and he was obliged to proceed on retirement. Mnangagwa’s government was incensed and responded through the minister of Justice in contempt of court and issued various threats to those and other judges”.
A bench comprising Justices Jester Helena Charewa, Happias Zhou and Justice Edith Kuda Mushore ruled that Malaba as the incumbent could not benefit from an amendment of the constitution extending term limits.
The judges said tenure is defined by both the fixed term and the stipulated retirement ages.
The judgement was 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.
“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 judgment 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, Malaba 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,” the judges said.
The lawyers said the three judges were threatened and victimised after the ruling.
Justice Mushore has been dismissed “on flimsy grounds”, while Justice Charewa was transferred to an outlier posting against her wishes. Justice Zhou has been rendered redundant.
Malaba was rescued after a third party brought litigation before the Constitutional Court which sought to nullify the judgment of the High Court.
“This notwithstanding that Malaba and his fellow judges who had been cited in the litigation, had appealed to the Supreme Court. Notwithstanding that the Constitutional Court judges were cited in the litigation and had exercised their right of appeal, they sat as a court, in a matter in which they were interested and nullified the judgment of the High Court,” the lawyers said.
“As a result of this judgment, Malaba has continued in office. In the run up to the elections, Malaba issued orders in chambers in the Kasukuwere matter without hearing parties. He solely dismissed applications that could only be dealt with by seven judges. He has shamelessly played the part for which he was hired.
“In any petition, Malaba would be the one to sit in judgment. He has already played his hand in a manner consistent with the unlawful extension of his tenure. It is inconceivable that having had his tenure extended by Mnangagwa under these unlawful circumstances he could turn against him in the most crucial matter of Mnangagwa’s political career.”
The lawyers highlighted that Malaba “was the first to receive undue gifts from Mnangagwa’s administration in the form of an ex gratia payment of close to half a million dollars.”
“This is in direct breach of the principle of the independence of the judiciary. That the gift was received straight from Mnangagwa’s minister of Finance and not from the Judicial Service Commission does make a bad situation worse.”
Justice Bharat Patel
Patel, one of the judges who wrote the Constitutional Court judgment which nullified the High Court judgment which had found that neither Malaba nor any of the Constitutional Court judges could benefit from the extension of tenure, was the first judge to benefit from the tenure extension. “
He continues to sit on the Constitutional Court bench and is one of the judges who must hear the presidential petition in the event of it being filed,” the lawyers said.
“Patel, just like Malaba, had his tenure extended for purposes of the 2023 electoral litigation.”
The bribed judiciary
The lawyers said ahead of the August 2023 elections, all ConCourt judges received an ex gratia payment from the ministry of Finance.
“They received some US$400 000. These payments are not part of their conditions of service. The payments are not loans. No agreements of whatever nature were signed by them and the nature of the arrangement has been left deliberately fluid,” the lawyers said.
“These are bribes and the fact that they were received some few months before the elections is telling. This matter has been raised in Parliament by Temba Mliswa, then an independent member.
“Now all these judges are expected to sit in judgment and deal with a matter that affects their benefactor, who recently gave them undue gifts.”
The lawyers alleged that five of the judges also received payment from Metbank in 2018 after the presidential petition hearing.
“These payments were also never part of their conditions of service and have to this very day not been declared,” the lawyers said.
The lawyers also expressed concern that the same judges who heard Chamisa’s 2018 electoral challenge would hear any potential challenge.
They said the 2018 judgement “has been criticised by academics and judges alike”.
“The Supreme Court of Malawi emphatically refused to follow the judgment which has received worldwide condemnation. There is no chance that these judges could dispense any justice this time around,” argued the lawyers.
“For all these reasons, the Citizens’ Coalition for Change cannot expect an impartial hearing from Zimbabwean courts. For that reason, there are no domestic remedies available to it,” the lawyers said.