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Zimbabwe Lawyers for Human Rights (ZLHR) files urgent chamber application for Chief Justice Malaba to resign by 15 May 2021.
The application is based on the legal grounds that the recent amendments to the constitution cannot benefit Chief Justice Malaba.
Malaba is due to retire on May 15 when he reaches the age of 70, but President Emmerson Mnangagwa’s government says the Constitution of Zimbabwe Amendment (No. 2) Act which was signed into law last week allows an extension by five years and beyond.
On Monday, Musa Kika, a lawyer and executive director of the Zimbabwe Human Rights NGO Forum filed an urgent High Court application suing Ziyambi and 16 judges.
He is also seeking an order that “Luke Malaba must or did at midnight on May 15, 2021, cease to hold the office of Chief Justice of Zimbabwe” and that “any action, conduct or deed of Luke Malaba post-May 15, 2021, purportedly as the Chief Justice of Zimbabwe is null and void and of no effect.”
Kika said the effect of section 328(7) on the tenure of judges of the Supreme Court can only be removed by an amendment to section 328(7), and based on provisions of section 328(9) such an amendment would need to go to a public referendum.
“There is no such amendment, and there has been no referendum. Effectively, therefore, there is a declared conflict between section 328(7) and the amendment… If anything that is contrary to law is done, it cannot be valid neither can it be given effect to,” Kika argues.
“I submit in this regard that the law is clear. Whatever else the amendment purports to do, it does not and cannot have the effect of extending the tenure of second to seventeenth respondents (judges). In view of the correct legal position, whether the amendment is valid or otherwise, the fact of the matter is that it cannot benefit the respondents.
“I am aware that the second respondent (Malaba) turns 70 at midnight on May 15, 2021. He must in accordance with the law immediately cease to hold the position of Chief Justice of Zimbabwe. This is by constitutional command. Respectfully, the second respondent has run his course…”
Kika said the court action caused him “much embarrassment as a Zimbabwean particularly when I have to be required to sue the entire superior court structure”, adding that “a general failure to adhere to the law has caused an unavoidable constitutional crisis.”
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