Luke Malaba, Chief Justice
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Kwekweza loses CJ tenure matter

THE High Court has thrown out a fresh bid to challenge the legality of the re-appointment of Chief Justice (CJ) Luke Malaba by President Emmerson Mnangagwa for five more years.

In dismissing the application by Namatai Kwekweza, Justice Gladys Mhuri said an earlier ruling by the Constitutional Court — which upheld the re-appointment of Malaba last year — had brought finality to the matter.

This comes after the Constitutional Court quashed a High Court ruling last September which said that he had reached retirement age and was, therefore, not meant to benefit from a constitutional amendment which increased the retirement age for judges from 70 years to 75.

“The Constitutional Court declined to confirm the orders and set them aside. In essence … the case confirmed the CJ’s position to remain in office for the next five years as accepted by the president.

“It sealed and brought to finality any challenge to the CJ’s extension of tenure and all the processes that led to it. That issue, therefore, is no longer live and is moot.

“This notwithstanding, is there any benefit to the applicant or the public at large at this stage to order that the respondent answers “yes or no” as submitted by applicant when the issue is no longer live, or as submitted by the respondent when the horse has bolted?” Mhuri said in her ruling.

Before approaching the High Court, Kwekweza had written to the Judicial Service Commission (JSC) requesting information relating to how the commission had arrived at the decision to recommend to Mnangagwa the re-appointment of Malaba.

“How did the JSC come to a decision on the appropriate recommendation to make to the president under section 186 (1) of the Constitution of Zimbabwe relating to … Malaba’s bid to continue as CJ for another five years?

“In particular, was a meeting held by the commissioners for this purpose? Was a resolution passed to make the appropriate recommendation?

“If so, may we have a copy of the resolution? If a resolution was passed … which commissioners of the JSC voted in favour of recommending that … Malaba’s tenure be extended for another five years and which commissioners voted against?” Kwekweza asked.

All this came after the extension of Malaba’s term was met with fierce resistance by rights groups which argued that the law did not permit him to be a beneficiary of a clause which allowed such a move.

The Concourt ruling, which upheld his extension, ended the row which had raised tensions in the country and threatened to paralyse the judiciary.

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