Zimbabwe High Court Ruling on the Extension of Tenure for Chief Justice Malaba

Introduction

This judgment is in respect of two matters, HC 2128/21 and HC 2166/21. The two matters were heard together because the substance of their complaints is the same. Both matters were brought by way of application. HC 2128/21 was instituted as an urgent court application while HC 2166/21 was brought as an urgent chamber application. Both applications are opposed by some of the respondents. Opposing papers, answering affidavits and heads of argument were filed following a case management meeting with the parties’ representatives at which the dates for filing the papers were set by consent.

In case no. HC 2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court on the basis that they are acting judges of the Supreme Court or have been called upon to act as such. The judges were cited in official capacities, the Judicial Service Commission (JSC) was joined in the proceedings at its instance at the case management conference in HC 2166/21. The respondents cited are the JSC, the Chief Justice of Zimbabwe Honourable Luke Malaba NO and the Attorney General NO. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda a liberation war veteran.

Conclusion

Our conclusion is that the extension of the retirement age amounts to extension of tenure. Tenure is defined by both the fixed time and the stipulated retirement ages. In terms of s 328 (7) of the Constitution, such an extension of tenure is an amendment to the Constitution. It cannot benefit the persons who held or occupied the office at any time before the amendment. Any extension of the length of time that persons who were judges of the Constitutional Court and Supreme Court prior to the amendment of s 186 through the Constitution of Zimbabwe Amendment (No. 2), 2021 would be a violation of the applicants’ rights as protected by s 56(l) and s 69(3) of the Constitution of Zimbabwe.

Read the full judgment here(5MB PDF)

Source: High Court of Zimbabwe

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