Zimbabwe’s Constitutional Court has quashed a lower court’s ruling that the extension of Chief Justice Luke Malaba’s term of office after attaining 70 years was illegal.
Justice Bharat Patel and Justice Rita Makarau ruled that Malaba has been legally in office after his term was extended by President Emmerson Mnangagwa in May this year.
In his application seeking to nullify the High Court ruling, Marx Mupungu of Bulawayo argued that the lower court’s judgment violated some constitutional provisions giving the president and parliament the power to extend judges’ term of office, if medically fit, for another five years after the ‘prescribed’ retirement age of 70.
Mupungu’s attorney, Lovemore Madhuku, said the Constitutional Court ruling has granted Malaba power to work as the country’s top legal mind.
Madhuku told journalists that this brings to an end all legal challenges to Malaba’s term extension.
Said Madhuku: “The ConCourt has set aside the decision of the High Court that had said the CJ was not legally in office, by Justices Happias Zhou, Edith Mushore and Jester Charewa.
“The court said the order by the judges had to be confirmed by the Constitutional Court for it to be valid. The ConCourt has refused to confirm that order and has set it aside.
“It means at this end, the CJ is properly elected to remain in office and the president properly approved that election. It means from day one we never had a problem with CJ being in office, it has always been constitutional.
“What this order of the Constitutional Court means is that there are no longer any appeals before the Supreme Court. They have automatically fallen away. We no longer have any issue concerning the Chief Justice. Any matters that were hanging in the lower courts, whether the High Court or the Supreme Court, are no longer there by operation of this constitutional order.”
The Malaba case became the focus of a tussle between the High Court and President Mnangagwa, who introduced a constitutional amendment that raised the retirement of Constitutional and Supreme Court judges to 75 from 70.
Critics accuse Mnangagwa of seeking to influence the judiciary, a charge he denies.
The High Court judges had ruled that a term extension for an incumbent public official – including a chief justice and the president – could only take place after it is confirmed by a public referendum.
The ruling by the Constitutional Court whose judges are beneficiaries of the term extension will not ease concerns by lawyers and even opposition parties who accuse the government of “judicial capture”.