Malaba case: Judgment reserved Chief Justice Luke Malaba

Fidelis Munyoro

Chief Court Reporter

THE Constitutional Court yesterday heard the arguments for nullifying the High Court decision that disqualified Chief Justice Luke Malaba from exercising a new constitutional right to extend his term by five years to the age of 75, but has reserved its judgment.

Marx Mupungu of Bulawayo wants the court to overturn the lower court judgment which he argued impugned the conduct of the President and Parliament for exercising their constitutional mandate with the second amendment to the Constitution giving judges the option of extending their term, if medically fit, for another five years after the set retirement age of 70.

Chief Justice Malaba exercised that right, but the High Court said the amendment was not valid for sitting Supreme Court and Constitutional Court judges.

Although an appeal was noted in the Supreme Court, it has not been heard yet and in any case could have been subjected to a further appeal to the Constitutional Court for a final decision by the losing party in the appeal.

This week, Mr Mupungu sought to use another section of the Constitution that states that the Constitutional Court must approve any constitutional decision made by a lower court to get the matter directly into the top court.

The Constitutional Court unanimously agreed that it had the right and duty to hear the application.

The full bench of the Constitutional Court, with only Chief Justice Malaba himself absent as he is at the centre of the legal row and so Deputy Chief Justice Elizabeth Gwaunza presided, heard Advocate Lewis Ururi state that Mr Mupungu, his client, was seeking an order declaring the two orders of the High Court to be orders of “constitutional invalidity”.

The two orders by the three judges of the High Court declared that Justice Malaba ceased to hold the office of Chief Justice and judge on May 15, 2021, by operation of law and that notwithstanding the provisions of section 186 of the Constitution, the Deputy Chief Justice and judges of the Constitutional Court and Supreme Court who were in office as at May 7, 2021, did not have an option to extend their terms to the age of 75 years. Adv Uriri moved the court to refuse to confirm these two orders of the lower court.

Adv Uriri told the court that the High Court, as a matter of substance, declared constitutionally invalid the conduct of the President recorded in a letter dated May 11, 2021, to Chief Justice Malaba and which conduct gave validity to the continuation in office of the Justice Malaba as Chief justice.

Adv Uriri was referring to the fact that once a judge has elected to continue beyond the age of 70 and presented a valid medical certificate, the President was then obliged to confirm that the judge would continue in office for another five years.

“Put differently, the High Court, in substance, said the conduct of the President, by operation of law, was invalid,” he said.

The High Court had interpreted section 328 (7) of the Constitution, which deals with amendments over term limits, to refer to the retirement ages of judges and it is this interpretation that equates an age limit with a term limit that is at the centre of the legal argument.

Adv Uriri noted that applying the High Court’s order that judges of the Supreme and Constitutional Courts could not sit once they reached 70 in effect nullified section 186(4) of the Constitution which allows a judge who does reach retirement age to at least continue hearing the cases before they reached that age until the cases are concluded.

Looking at whether the Constitutional Court had the right to reject a lower court judgment in the sort of application made by Mr Mupungu, as the relevant section talks about the right of an interested party to seek to have the order confirmed or varied, Adv Uriri argued that it did.

An application under the Constitution for the Constitutional Court to confirm or vary an order on a constitutional matter by a lower court necessarily included the option not to confirm the order, he argued, and so a finding that the two orders of the High Court were orders of “constitutional invalidity” had to lead to their setting aside.

On the question over whether Mr Mupungu had the necessary legal standing to bring the application, Professor Lovemore Madhuku told the court that every citizen had an automatic right to bring a constitutional matter to the court in the interests of justice.

The particular section talks about persons with sufficient interest.

“What has been brought before the court is a constitutional matter. The applicant (Mupungu) qualifies as ‘any person with a sufficient interest’. Every citizen seeking to uphold the Constitution automatically has a ‘sufficient interest’ for purposes of section 175 (3) of the Constitution.”

Mr Andrea Dracos who acted for the Young Lawyers Association of Zimbabwe and war veteran Mr Feredrick Mutanda opposed the application, in the case in which the mastermind in the original case to remove the Chief Justice from office, Mr Kika Musa, threw in the towel.

He argued that Mr Mupungu did not have a legal standing to bring such an application as he was not a person with “sufficient interest” in the legal sense as he was not a party in the original High Court case.

On the point that his clients were supposed to have sought to sue the judges, Mr Dracos argued that there was no need to do so because the application was one in terms of the constitutional provisions for enforcing fundamental rights.

“Once there is an allegation of violation of fundamental rights there is no need for leave,” he said.

He then argued on the merits of the matter, the interpretation the High Court had made on term limits, saying it was sound in law because it was in accordance with the spirit and scheme of the Constitution hence it must accordingly be confirmed.

Appearing as a friend of the court, Advocate Tawanda Zhuwarara argued that the original application to the High Court was itself invalid under the law and should not have been heard until other preliminaries had been done and approved.

He said under the Constitution no lower court could issue an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, unless such order is probed and confirmed by the Constitutional Court

“It is only through confirmation proceedings that this court is able to ensure that constitutional adjudication in the lower courts remains rational and congruent with our constitutional norms,” he said.

Before valid proceedings could be seen in the High Court it was imperative that a separate application be instituted beforehand to obtain leave to sue the Chief Justice and the Deputy Chief Justice.

“It is this sojourn beyond the realms of law that renders the proceedings before the court a quo stillborn and susceptible to summary negation by this court,” he said.

“Clearly no valid proceedings ever came into being before the High Court and for that reason this court, employing its supervisory review powers, should vary the declaratory order by setting aside the anomalous proceedings.”

After hearing submissions from all the parties Deputy Chief Justice Gwaunza said the court would reserve judgment to a later date.

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