On the 14th of July 2021 the Constitutional Court of Zimbabwe will either descend into an eternal erebus of shame or will salvage the little of what remains of its tattered and shattered reputation.
The make or break case that presents the court with the opportunity to decide which way to go is the controversial case brought in favour of Luke Malaba by a Zanu PF Youth League member Marx Mapungu.
On the 15th of May 2021, the High Court of Zimbabwe in a landmark judgment, the kind of which one expects under a new constitutional order, held that Luke Malaba had on that day ceased being Chief Justice of Zimbabwe. The case had so many interesting features which include the fact that all judges of both the Supreme Court and the Constitutional Court were cited as respondents.
The significant judgment obviously drew the ire of the government of Zimbabwe and in a manner ever so crass, Minister of Justice Ziyambi Ziyambi issued a scathing attack on the judges of the High Court. His anger was both contrived and unrighteous because according to reports, he was not routing for Malaba to continue in office.
It might be that this was the most sensible decision that he has taken in his error laden pilgrimage as minister and it is a pity that political considerations forced him to revise that decision, making a complete fool of himself in the process.
Hamstrung by the concise reasoning of the court as well as the fact that all judges of superior courts were cited, the Mnangagwa administration groped in darkness and showed itself to be clueless and desperate. For the first time, it had been exposed before its own courts.
The Young and hungry lawyers of Zimbabwe, the victim of many injustices Frederick Mutanda, the kicking Musa Kika had come, seen and conquered.
In such moments, brilliance cannot save. At any rate the administration has a huge deficit of it. It accordingly had to turn to a crook, a previously de-registered legal practitioner who has never won a matter in the Constitutional Court, Professor Lovemore Madhuku.
Just days, Prof Madhuku had addressed a Press conference at which he had expressed his support for the court challenges that had been brought in response to Constitutional Amendment Number 2. There he was prostituting himself and acting as a shameless enabler.
In a move ever so deceitful and reeking of corruption, Madhuku on behalf of Zanu PF member Marx Mapungu brought an application before the Constitutional Court by which seeks an order for the setting aside of the High Court judgement.
The application does not cite the judges of the Constitutional Court who were party to the proceedings in the High Court. The intention is to have those judges pretend that they have nothing to do with the matter with the result that they will hear it and inevitably set the judgment of the High Court aside.
It seems fairly clear to me that the judges of the Constitutional Court are hopelessly conflicted in that matter. It however, does seem to me that Madhuku has not thought his case through with the result that the judges of the Constitutional Court have now been given the opportunity to do the right thing for once in their lives. Their failure to do the right thing cannot be put down either to law or necessity and must be taken to be a clear decision to be recalcitrant. That would be the saddest story of our time.
The judgment of the High Court issued two orders. The first order relates solely to Malaba who by the date of the judgment had turned 70 and whose purported attempt to have an extension was held to be ineffectual. The second order deals with all the other judges of the Supreme and Constitutional Courts who as matters stand, have not yet turned 70 and have exercised no election to remain in office beyond the age of 70.
It does seem to me that the judges may reasonably hold that they are not conflicted in respect of the first order which only relates to Luke Malaba. They are however, definitely conflicted in respect of the second order given that it relates to them. If they do not see the conflict, they must sit together with Malaba and not allow themselves to be used.
Surely if they hear the whole matter, even African nations must place them on sanctions and some international criminal organisation must issue arrest warrants against them. This would be the biggest scandal of our time.
My view is that the judges must refuse to deal with the second order owing to their hopeless conflict which amounts to misconduct. They can however, try to deal with the first order which solely pertains to Malaba, provided they limit issues to what is peculiar to Malaba and does not touch on their respective situations. This is where matters become interesting.
The High Court found that Malaba had turned 70 at 00:00 hours on the 15th of May 2021. This seems to be common cause. It also found that by law, a judge must before they turn 70 exercise an election, if they are so inclined, to extend their tenure to 75 years. It was the finding of the High Court that the process is that of an extension and not appointment or re-appointment.
By good grace, the letter purportedly extending Malaba’s tenure says that the extension was to take effect from the 16th of May 2020. That means Malaba would have gone for a full 24 hours without being a Chief Justice of Zimbabwe.
The “extension” on the 16th of May 2021 would therefore not be an extension but a re-appointment. The constitution makes no provision for a re-appointment. Malaba would be invalidly in office.
It has been suggested that Malaba is aware of this legal conundrum and is fretting over it. The error in the authorship of the letter cannot be corrected, the train has already left the station.
This is an important matter because it completely distinguishes Malaba’s situation from that of the other judges. It is only this issue that the judges can properly and legitimately deal with. Anything beyond this would be a crass act of misconduct.
It seems to me that this is what the respondent’s must present as their argument.
If this argument is presented, the Concourt must isolate Malaba, deal with him and ensure that his name fades into everlasting oblivion. He has at any rate not been an addition to the judiciary and has belittled judges even in public. Only last year, a scathing letter was written by judges complaining about his uncouth conduct.
That Malaba has been selfish and in his pursuit of narrow interests put the entire judiciary into disrepute is beyond any doubt. This he must be punished for otherwise the judges would have been complicit in his exploits in bringing the judiciary into disrepute.
For them to regain their honour and protect the integrity of the judiciary, the judges of the Concourt must punish him for all this. This will also avoid them having to deal with a matter in which they are hopelessly conflicted. This is their only opportunity.
At any rate, it must offend the judges that they are being told that they cannot ascend to the highest judicial office in the land. To have a whole constitution amended for just one person is the height of impropriety. If judges cannot speak out against this, we might as well kiss our chances of getting any justice from them goodbye.
I say those who have designed the Mapungu evil must be hoist on their own respective petards. Zimbabwe needs to send out the message that it is a serious country which does not personalize institutions. The time is now.-Special Legal Correspondent in London
