HARARE – Justice minister Ziyambi Ziyambi and the Judicial Service Commission have raised a series of objections as three High Court will on Friday hear preliminary arguments to a legal challenge against the extension of Chief Justice Luke Malaba’s term by five years.
Malaba had been due to retire on Saturday when he turns 70, but President Emmerson Mnangagwa’s Zanu PF party used its majority in parliament to amend the constitution, allowing the president to extend the retirement age of senior judges to 75 years if they proved they were in good health.
But lawyers and the opposition say the amendment that allowed Malaba to continue in office and empower Mnangagwa to appoint judges of the Constitutional and Supreme Courts rather than go through public interviews was a violation of the country’s charter.
They argue that under a constitution adopted in 2013, changes to term limits require a referendum and that incumbents do not benefit from such changes. But the government says it only changed the retirement age and so did not breach the supreme law.
The Attorney General Prince Machaya has tendered an affidavit on behalf of Ziyambi, in which he is challenging the presence of Justice Happias Zhou on the panel of three judges to hear the matter, as well as the non-citation of Judge President George Chiweshe as a respondent.
In court papers, lawyers have cited Ziyambi, Malaba and all the 17 judges of the Constitutional and Supreme Court as respondents in the case. The judges oppose their citations.
High Court judges Zhou, Edith Mushore and Helena Charehwa will hear preliminary arguments at 2.30PM on Friday before confirming a date for a full hearing.
Machaya argues: “The three judges in that bench have been appointed by the Judge President, the Honourable George Chiweshe, who is himself not cited as a respondent notwithstanding that he has acted on numerous occasions as an acting judge of the Supreme Court.
“It may be that the omission is purely fortuitous. However, it also creates a suspicion and a perception that the bench appointed to hear the matter may be tainted with bias having been appointed by the Judge President who is also not a respondent in the matter.
“In order to allay these suspicions and perceptions, which are quite genuine, I wish to express my objections to the present bench sitting to preside over this matter, and to request that the honourable judges in that bench recuse themselves from this matter. I do not mind having the next most senior judge to the Judge President who has acted as a judge of the Supreme Court then appointing another bench of three judges to preside over this matter.”
The Judicial Service Commission (JSC), meanwhile, raised objections over the presence of Justice Zhou on the bench, arguing that he has a “material and significant interest in this matter” which is “personal in nature… and prevents him from being an impartial arbiter.”
The JSC argues that Justice Zhou applied to be a judge of the Constitutional Court and was interviewed in September last year, although no appointments have yet been made.
“In the circumstances, Justice Zhou has a direct and personal interest in obtaining a seat as a judge of the Constitutional Court. The matter in casu, irrespective of its success or failure, directly involves Justice Zhou’s potential colleagues in the Constitutional Court. If any of them ceases to be a Constitutional Court judge, there is a possibility that Justice Zhou will be the direct beneficiary thereof,” the JSC argues.
The JSC, which employs all judges, is also arguing that lawyers for Musa Kika, who brought the challenge, should have sought leave to sue judges from court before making them respondents.
The JSC also argues that the matter is not urgent.
Malaba and the government’s legal team appear to be suspicious of High Court judges who have openly clashed with the Chief Justice. Malaba faced an unprecedented crisis last year when judges of the High Court openly rejected his directive that he should see their judgements before they are delivered. He withdrew the directive following the outrage.
Some legal experts say Zimbabwe could be heading towards a constitutional crisis. If the High Court dismisses the case and the lawyers appeal, they will have to face the very same judges they have cited in their court challenge.
Malaba was elevated to Chief Justice in March 2017, replacing the late Godfrey Chidyausiku.
His appointment was greeted with hope, but the courts have – under his watch – come under fire for allegedly doing Zanu PF’s bidding with activist magistrates and judges accused of using “lawfare” against Mnangagwa’s opponents.