The consolidated application challenged, among other things, the
extension of tenure of former Honourable Chief Justice Luke Malaba, by
virtue of the amendment of section 186 of the Constitution of Zimbabwe
by Constitution of Zimbabwe Amendment Act (No.2), which came into
force on 7 May 2021. Section 186(1)(a) of the Constitution had
provided that Constitutional Court judges must retire upon reaching
the age of 70 years. Mr Malaba, who turned 70 years old on 15 May
2021, was thus required to retire as the Chief Justice of Zimbabwe on
15 May. Section 186, as amended, now allows for extension of tenure
after 70 years subject to a medical report of fitness and approval of
the president, after consultation with the Judicial Service
Commission. However section 328(7) of the Constitution expressly
prohibits any amendments of the Constitution extending term-limit
extensions from applying to incumbents.
The historic case was argued in the High Court before Honourable
Justice Happias Zhou, sitting with Honourable Justice Edith Mushore
and Honourable Justice Jester Charewa, by ZLHR members David Drury and
Honourable Tendai Biti, together with Advocate Thabani Mpofu and
Andrea Dracos, from 14:00 on 14 May 2021 until 00.30 in the early
morning of 15 May 2021. On 15 May 2021, the court delivered its order,
and have subsequently released a summary judgment, declaring that Mr.
Luke Malaba’s tenure as Chief Justice of Zimbabwe came to an end at
00:00 on 15 May 2021, on the basis that as an incumbent he was
prohibited from benefitting from the amendment allowing for extension
of term-limits of judges after 70 years.
We applaud the declaratory order upholding the Constitution and
confirming the end of Mr. Malaba’s tenure as Chief Justice, as a
triumphant moment for the fundamental principle of constitutional
supremacy and the rule of law in Zimbabwe.
We note with grave concern, however, the chilling statement of the
Honourable Minister of Justice, Legal and Parliamentary Affairs Hon.
Ziyambi Ziyambi issued on 15 May 2021 in response to the order,
stating that ‘multi-lateral and foreign organisations… have poured in
a lot of money through the Zimbabwe Lawyers for Human Rights to
capture various state institutions and to destabilise the Government’…
and that, ‘the Judiciary has been captured by certain elements both
within and outside Zimbabwe who want to destabilise the second
We call upon the Government of Zimbabwe to respect the independence of
the judiciary and the rights of legal officers to represent their
clients without fear or favour, as well as to respect the importance
of maintaining a vibrant civil society to work with Government to
uphold the Constitution and rule of law.
We have also noted the indication from both the Minister of Justice,
Legal and Parliamentary Affairs, and the Judicial Service Commission
of their intention to appeal the judgment, once full reasons are made
available. We confirm YLAZ’s intention to oppose any appeal noted, and
to take all steps available to ensure that the judgment is upheld and
We call upon all Zimbabweans to jointly celebrate the court’s decision
upholding the supreme law of the country, the Constitution,
demonstrating our courts’ commitment to protecting the will of the
people that is enshrined in the Constitution.