Former Chief Justice, Luke Malaba has filed an appeal with the Supreme Court of Zimbabwe against the High Court judgement that nullified his extension of tenure of office.
Through his legal team Kantor and Immerman legal practitioners, Justice Malaba said the High Court erred and misdirected itself at law.
“The Court a quo erred and misdirected itself and purporting to exercise jurisdiction in a case in which the interpretation of the matter challenged the validity of the conduct of Parliament and the President; and giving immediate effect to the order granted when it is not the Constitutional Court.
“The Court a quo erred and misdirected itself in finding that the decision of the President of Zimbabwe on 11 May 2021 to accept the Chief Justice of Zimbabwe’s election to continue in office in terms of section 186 (1) of the Constitution of Zimbabwe Amendment No 2. Act No 2 of 2021 was invalid and thus no force and effect when:
“The decision by the President to accept the said lawful election to remain in office by the Honourable Chief Justice had not been set aside by any competent court of law; and the question of Constitutional validity of the Constitution of Zimbabwe Amendment No 2, Act No 2 of 2021 was not an issue before the Court a quo and neither the President of Zimbabwe, nor the President of the Senate nor the Speaker of the House of Parliament had been joined as a parties to the applications nor had they been afforded the opportunity to be heard.
“The Court a quo had no lawful power, authority or jurisdiction to set aside or otherwise curtail the exercise of either legislative power or executive authority by the legislature and the Presidency respectively in the circumstances. The Court does not have jurisdiction to issue a determination whose effect is to impugn the conduct of the Parliament of Zimbabwe and/or the President of Zimbabwe,” reads Malaba’s appeal.
Malaba argues that his term of office had not been extended by Constitutional Amendment No. 2 but the Constitution allowed him to continue as Chief Justice.
“The Court a quo erred and misdirected itself at law in failing to find, as it should have that the tenure of the 2nd Appellant as a Judge of the Constitutional Court of Zimbabwe and as the Honourable Chief Justice of Zimbabwe had not reached the maximum 15 year period allowed by Section 186 (2) of the Constitution of Zimbabwe and therefore had not been extended by virtue of the Constitution of Zimbabwe Amendment (No 2) Act, 2021.
“The Court a quo erred and misdirected itself at law in holding that Section 186 (1) of the Constitution amended a term limit provision of the Constitution when it did not do so; and the purpose and effect of the proviso mentioning Section 328 (7) in Section 186 (4) is to put it beyond doubt that no term limit was being amended. The Court a quo misdirected itself and erred in failing to give lawful legal effect to the Constitution of Zimbabwe Amendment (No 2) Act, No 2 of 2021 in circumstances where it had not been set aside by a court of competent jurisdiction,” said Malaba.
