The Zimbabwe Human Rights NGO Forum director, Musa Kika, has filed an urgent High Court application seeking to stop the extension of the term of office of Chief Justice Luke Malaba when he reaches retirement age of 70 years on 15 May.
According to the constitution that was adopted after a referendum in 2013, the retirement age for judges is 70 years.
However, the Constitutional Amendment number 2 Bill that was passed into law on Friday extended the retirement age to 75.
Based on the new law, Justice minister, Ziyambi Ziyambi—the first respondent—at the weekend announced that Malaba would not retire when he reaches 70 years on 15 May this year.
Kika, who is represented by Thabani Mpofu, an advocate being instructed by Cinginkosi Dube of Scalen and Holderness, has argued at the High Court that such an occurrence would be tantamount to “judicial impropriety”.
Also cited as respondents in the lawsuit are Malaba, his deputy, Elizabeth Gwaunza and the rest of the Constitutional and Supreme Court judges who Kika wants to be compelled to retire when they reach 70 years.
“As consequential relief I seek the following… that Luke Malaba must or did at midnight on 15 May 2021, cease to hold the office of Chief Justice of Zimbabwe… That any action, conducts or deed of Luke Malaba post the 15th of May 2021 purportedly as the Chief Justice of Zimbabwe is null and void,” reads part of Kika’s court application.
He further seeks an order to have Deputy Chief Justice Gwaunza take over Malaba’s office in an acting capacity from May 15 till President Emmerson Mnangagwa appoints a substantive judge for the post.
Kika submitted that the Constitutional Amendment Act 2 which extended the retirement age of judges from 70 to 75 was unconstitutional.
“The attempt to subvert the position encapsulated in the “original” section 186 (1) (a) and 186 (2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach my right to the protection of the law as set out in section 56 (1) of the Constitution of Zimbabwe, 2013,” submitted Kika.
As basis for his argument, Kika said in 2013, 94.4 percent of Zimbabweans who voted in the referendum for the current constitution approved that the retirement age of judges be set at 70 years,so no amendment could change that.
CJ Malaba has been a key cog in the power dynamics of President Mnangagwa. He threw out a presidential election results challenge put forward by MDC Alliance leader Nelson Chamisa in 2018.
On 30 March 2020, he ruled that Chamisa was not the legitimate leader of the party. He said his ascendance was flawed and this has weakened the opposition after a faction led by Douglas Mwonzora operating under the name MDC-T emerged.
Mwonzora’s party has been using the ruling to recall legislators from the MDC Alliance from parliament.
Law lecturer in the UK, Alex Magaisa, used Twitter to lend support to the court application Kika.
“It’s not about Malaba the man. It’s about his office, the rule of law and the constitution. Anything that violates the supreme law of the country is a danger to society. A fair, just and stable society is one that is based on the rule of law and constitutionalism,” he said.