Luke Malaba, Chief Justice
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Malaba saga: ConCourt reserves judgment

THE Constitutional Court yesterday reserved judgment in a case in which a Bulawayo man is seeking to overturn a High Court ruling barring Chief Justice Luke Malaba from extending his stay in office after reaching retirement age. 

A seven-member panel of the apex court reserved their judgment on the matter after hearing arguments from the interested parties.  

Marx Mupungu approached the ConCourt hoping to overturn a ruling passed in May by High Court judges Happias Zhou, Edith Mushore and Jester Charewa following an application filed by Zimbabwe Human Rights NGO Forum executive director, Musa Kika, which challenged the extension of Malaba’s tenure by another five years. 

The judges had ruled that Malaba should not remain in office since he had reached retirement age of 70 despite President Emmerson Mnangagwa extending his tenure until he reached 75 following the passing into law of recent constitutional amendments. 

This case comes ahead of a Supreme Court appeal that was filed by the government and the Judicial Services Commission in May, also challenging the ruling made by the High Court. 

In the present application, Mupungu had challenged the ruling at the ConCourt and argued that the lower court’s decision should be set aside as Mnangagwa had exercised his executive powers and acted constitutionally in extending Malaba’s term. 

“At the time that the learned Chief Justice made the election to remain in office section 186 of the Constitution gave him that right. Section 186 has not been declared invalid… 

“We submit that the judgement of the High Court HH264/21 was a declaration of invalidity and is therefore covered by section 175 (1) of the Constitution. 

“We submit that it has no effect unless confirmed by this court and we move that the court refuses to confirm that judgement,” argued Mupungu’s lawyer, Lewis Uriri. 

Young Lawyers of Zimbabwe (YLAZ), through their lawyer Andrea Drakos, had challenged Mupungu’s application and argued that he did not have the legal right to challenge the High Court ruling. 

“The point that we take in relation to applicant’s locus standi is that he cannot claim to have the order a quo set aside on whatever basis. He was not party to the proceeding a quo.  

“The nature of the present proceedings is a review and they are between the parties in dispute in relation to that order. 

“It is our respectful submission…that applicant cannot claim relief in this court on the basis of section 175 (3) of the Constitution. Applicant in this present matter does not have sufficient interest as required in law. 

“His sufficient interest as has been shown is predicated upon his personal views of what ought to have been done…” Drakos submitted. 

Earlier this week, the ConCourt had dismissed an application filed by Kika that sought to have all the judges cited in the matter recuse themselves from the case.