Govt Appeal To the High Court Over Malaba Ouster

The government has filed a notice of appeal at the High Court against the ruling which forced Justice Luke Malaba to retire despite new constitutional amendments which were to extend his tenure.

Justice Minister Ziyambi Ziyambi and Attorney General Prince Machaya filed the application to annul the decision on Monday.

On Saturday Justices Happias Zhou, Edith Mushore and Justice Jester Charewa blocked the extension of Chief Justice Malaba’s service by five years.The trio ruled that Malaba ceased to be the Chief Justice upon reaching 70 years on May 15, 2021, and that the extension of the service does not apply to incumbent judges of the Constitutional Court and the Supreme Court.

The High Court appeal reads , “ the Appellant hereby appeals against the whole judgment of the High Court of Zimbabwe sitting at Harare handed down by Zhou J, Charewa J, and Mushore J in case number HC 2166/21 on 16 May 2021. A copy of the judgment is attached hereto. No leave to appeal is necessary.”

“Wherefore, the Appellant prays that ,The appeal be allowed and the judgment of the High Court be set aside and substituted with the following”

“The application filed by the applicant in case number HC 2128/21 is hereby dismissed with costs.”

In a statement last night, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said Government would exercise its right to appeal the ruling.

“We have taken note of the decision made by the court, and as a country which respects the rule of law, we will respect that decision, but you must also know that as litigants, we have our rights which are protected by the law.”

“One issue that is worrying which even the most basic layman would want to know is that the Judges appear to base their decision on the interpretation that is given to Section 328 (7) of the Constitution and the new section 186 (4) of the Constitution but surprisingly, the interpretation of the provisions was not before them, and secondly, the institutions that put into effect these provisions, that is Parliament and the President, were not cited in this application — how do they make such a decision without the benefit of having heard the side of Parliament and President who legislated these provisions?

“How does the Judiciary turn itself into an Executive and Legislature at the same time?”

“With the greatest of respect, we do not agree with the decision of the court for so many reasons and for that reason, we have already instructed our lawyers to file an appeal first thing on Monday morning.”