TOP Zimbabwean judges of the highest court in the land – including Deputy Chief Justice Elizabeth Gwaunza – will inadvertently be in the dock next when they hear an application by a Bulawayo man Marx Mupungu who has approached the court seeking an order nullifying the High Court judgement which blocked Chief Justice Luke Malaba’s tenure extension in May.
The ruling by a three-judge panel – comprising Justices Happias Zhou, Edith Mushore and Jesta Helena Charehwa – said Malaba ceased to be chief justice on 15 May when he turned 70.
However, President Emmerson Mnangagwa – who wants Malaba to pivot his re-election in 2023 – effectively extended his tenure by five years on 11 May.
This triggered public outrage, a series of judicial battles and a constitutional crisis that still needs to be resolved as most Constitutional Court (ConCourt) and Supreme Court judges were cited as respondents in the High Court case.
Initially all superior courts judges were cited in the High Court matter, but Mnangagwa later appointed new jurists to the ConCourt and Supreme Court in a bid to resolve the judicial imbroglio. He also took control of the High Court which had appeared rebellious.
However, Gwaunza is already dealing with the case in which she is cited, thus an interested party. She may be joined by other judges who also have a conflict of interest.
This will practically put the judges in the dock for nemo judex in causa sua: no one should be a judge in his or her own cause.
The real casualty of the ConCourt drama would be judicial integrity, public confidence in an institution that people ought to hold in high esteem and the rule of law.
Nemo judex in causa sua is widely considered a pre-requisite to an independent and reliable judicial system. This principle is meant not merely to prevent a potential wrong-doer from condoning his or her errors by judging the validity of their actions, but also, and more importantly, to preserve public confidence in the sanctity and independence of the judiciary.
But next week Gwaunza and other judges may leave this cardinal rule in tatters.
The principle of natural justice encompasses two important principles: nemo judex in causa sua (no one should be a judge in his or her own cause) and audi alteram partem – hear the other party or the rule of fair hearing; that no one should be condemned unheard.
These are buttressed by the notion that justice should not only be done, but manifestly and undoubtedly be seen to be done. Judges – like Caesar’s wife – should be above suspicion. These principles will be tested and placed under scrutiny next Wednesday.
The situation has gradually been building up to D-day for weeks now since the relevant application was filed on this matter. On 4 June, Mupungu, represented by Lovemore Madhuku Lawyers, approached the ConCourt seeking an order nullifying the declaratur granted by Zhou, Mushore and Charehwa.
In a move that further complicated the conundrum, Mupungu omitted to cite Malaba, Gwaunza and all the judges of the Supreme Court and ConCourt party to the High Court matter.
He cited only Justice minister Ziyambi Ziyambi, the Judicial Service Commission (JSC), Zimbabwe Human Rights NGO Forum executive Musa Kika, Young Lawyers Association of Zimbabwe (YLAZ), businessman Fredrick Mutanda, Attorney-General Prince Machaya and Mnangagwa as 1st to 7th respondents, respectively.
Kika and YLAZ challenged Malaba’s tenure extension, and their cases were consolidated before the Zhou judgement.
Mupungu approached the court in terms of Section 175 of the constitution, arguing Mnangagwa acted constitutionally when he extended Malaba’s tenure by five years.
Three working days after the Mupungu application, the ConCourt registrar wrote to the parties inviting them to a case management meeting before Gwaunza.
Lawyers for Kika and YLAZ protested having to appear before Gwaunza who is party to the matter which she wanted to preside over.
Kika and the YLAZ insisted they wanted unconflicted judges to president over the ConCourt case.
However, Gwaunza dismissed their concerns and refused to recuse herself from presiding over a case management meeting. She went on to deal with the matter and set timelines for the filing of pleadings in this case.
In the process, Gwaunza set 14 July for hearing the application. On Thursday, 8 July, the ConCourt registrar wrote to the parties advising that it had invited Advocate Tawanda Zhuwarara as amicus curie (friend of the court). This fuelled controversy.
Since 15 May, when the Malaba judgement was handed down, events have been moving at a terrific pace.
Ziyambi and the JSC immediately appealed the judgement after that.
It was only on 27 May that Malaba and all other judges of the Supreme Court and ConCourt filed a notice of appeal. Prior to that, on 17 May, Kika and his colleagues explained that the High Court judgement was a declaratur and was not suspended by the noting of an appeal.
However, on 24 May, Malaba returned to work. Kika immediately approached the High Court with a contempt of court application, seeking Malaba’s imprisonment. However, Malaba argued the noting of the appeal had suspended the judgement.
The matter was set down for 3 June. Then more drama ensued. Justice Webster Chinamora was forced to recuse himself amid reports that he had met JSC secretary Walter Chikwanha over the issue. Chinamora confirmed that, but denied that they had discussed this case. Kika lost.
On 11 June, Kika filed an urgent court application for an order for leave to execute pending appeal. He sought to have an order that Malaba shall immediately cease and desist from exercising the functions of chief justice either in a judicial or administrative capacity unless allowed to do so pursuant to the outcome of the appeals filed against the High Court judgement.
A case management hearing was scheduled for 15 June at 2pm before a three-judge panel comprising Justices Pisirayi Kwenda, Esther Muremba and Siyabona Musithu.
An hour before the case management hearing, Kika filed a notice of withdrawal on this matter. The mystery deepened.
However, the 14 July hearing on Mupungu’s application stands.
Naturally, conflicted judges will rule in their own favour, further leaving the image and integrity of the judiciary in tatters – shattered beyond repair and judges simply damaged goods.
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