THE High Court on Saturday 15 May 2021ended Chief Justice Luke
Malaba’s tenure after ruling that he cannot benefit from the recent
amendment of the Constitution extending the retirement age of judges
to serve beyond 70 years.
Malaba’s tenure had been extended by President Emmerson Mnangagwa on
11 May 2021 following the term extension provisions as introduced by
the amendment of the Constitution.
In extending Malaba’s tenure, President Mnangagwa had justified his
decision on the basis that the judicial officer is physically and
mentally capable of remaining in office for the next five years after
having considered and accepted his medical report as proof of his
mental and physical fitness to continue in office.
But on Saturday 15 May 2021, High Court Judges Justice Happias Zhou,
Edith Mushore and Justice Jester Charewa ruled that Malaba ceased to
be the Chief Justice upon reaching 70 years on 15 May 2021 and that
the extension of the term limits does not apply to judges of the
Constitutional Court and the Supreme Court.
The High Court ruling came after the three judges presided over the
hearing of an application filed by Young Lawyers Association of
Zimbabwe (YLAZ) and liberation war veteran Frederick Mutanda, who were represented by David Drury and Andria Dracos of Honey & Blanckenberg Legal Practitioners, who are members of Zimbabwe Lawyers for Human Rights.
In their application, YLAZ and Mutanda argued that Chief Justice
Malaba ought not to benefit from the term extension provisions as
introduced by the amendment of the Constitution since he has served 15
years as a Judge of the Constitutional Court.
YLAZ and Mutanda argued that the Judicial Service Commission (JSC)
failed to discharge its constitutional obligations diligently and
without delay by not instituting processes for the appointment of a
new Chief Justice as provided in section 324 of the Constitution.
YLAZ contended that if Chief Justice Malaba continues in office there
would be no Constitutional Court in Zimbabwe thereby pushing the
country into a constitutional crisis because he would have retained
power in clear contravention of section 328(7) of the Constitution.