By Aleck Murimigwa

Zimbabwe is for the first time getting to a point where its Constitutional Court cannot sit and hear a constitutional matter brought before it by way of an appeal.

A High Court application by Musa Kika, an executive director of Human Rights NGO Forum cited Constitutional and Supreme Court judges as respondents. By operation of law, they became ineligible to sit as judges concerning the same matter.

Kika challenged the extension of Chief Justice Luke Malaba’s term of office by President Emmerson Mnangagwa last month.

In his challenge, Kika was joined by the Young Lawyers Association of Zimbabwe (YLAZ) who challenged Malaba’s extended term of office by another five years.

Section 186 of the Constitution of Zimbabwe deals with the tenure of office of judges.

The section reads: “Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years, but – (a) they must retire if they reach the age of seventy years; and after the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.”

Section 186 (2) adds: “Judges of the Supreme Court, the High Court, and any other Judges hold office from the date of their assumption of the office until they reach the age of seventy years when they must retire.”

This Section is interesting in its precision on term limits for judges. Judges in question must leave office upon turning 70. There is no ambiguity.

Malaba turned 70 on the 15^th of May 2021. By operation of law, the top jurist ceased to be a judge on 15^th at 00:00 hours as the High Court bench by Justices Happias Zhou, Edith Mushore and Esther Charwe found.

It follows that Malaba ceased to be the Chief Justice of Zimbabwe at 70 according to Section 186 of the Constitution.

Kika grounded his application on section 186 of the Constitution. Malaba did not oppose the application. It is a legal principle that when a cited part to a court application decide not to respond, he or she has to abide by the decision of the court. It follows that Malaba cannot personally challenge the High Court judgment of 15 May 2021.

What are the grounds for one to conclude that Malaba’s case merits a constitutional crisis in Zimbabwe?

One has to understand that if Malaba returns to the office to serve his extended five years, he will be a beneficiary of Zimbabwe’s Constitution Amendment Act No.2 passed into law by President Emmerson Mnangagwa early last month.

The Constitution Amendment gave Mnangagwa powers to extend Malaba’s term of office by another five years.

Whether the amendment was a product of due process or not, it is a question for another day.

Did Mnangagwa do due diligence to the Constitution when he announced Malaba’s term of office extension by another five years? This the most pricking question Mnangagwa and his advisers may fail to answer.

It carries serious implications for the country’s number one. If the government’s appeal to have the High Court judgment on Malaba’s term of office falls apart, Mnangagwa would have committed an impeachable offence by unlawfully extending Malaba’s term of office.

Mnangagwa’s number one mandate as the President of Zimbabwe is to protect and uphold the Constitution.

Section 328 (7) of the Constitution of Zimbabwe carries what is involved in the amendment of the Constitution.

 It reads: “Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

In simple terms, if you amend the Constitution as Mnangagwa did, incumbents of Constitutional and Supreme Court judges cannot be beneficiaries of the amendment.

Malaba was the Chief Justice of Zimbabwe when Amendment No.2 was passed into law. It, therefore, faults at law for Malaba to be a beneficiary of the same. The law does not allow it.

Mnangagwa’s extension of Malaba’s term of office by another five years remains invalid as the High Court found.

Why fighting tooth and nail to keep Malaba in office?

There are two main reasons Mnangagwa cannot give up fighting for Malaba’s return to occupy the office of Chief Justice of Zimbabwe. The leading narrative is to do with the 2023 elections.

MDC Alliance Vice President Tendai Biti recently said Mnangagwa is fighting hard to keep Malaba in office as he banks on the top jurist to save him from a possible electoral defeat in the 2023 elections. 

 It is alleged Mnangagwa prefers to have Malaba presiding over an anticipated Presidential election outcome dispute which is more likely to spill in the courts.