Malaba not in contempt — High Court Chief Justice Luke Malaba

Fidelis Munyoro

Chief Court Reporter

Chief Justice Luke Malaba was not in contempt of court, when he resumed his judicial functions after an appeal to the Supreme Court was noted following a High Court decision that the constitutional amendment giving him the option of five more years of service did not apply to him and other senior judges, two High Court judges ruled yesterday.

The judgment confirmed that the noting of an appeal automatically suspends the execution of any judgment or decision appealed against, including the declaratory order on May 15, and so dismissed the urgent application by executive director of NGO-Forum Mr Musa Kika seeking an order for the Chief Justice to be found in contempt of court and committed to civil imprisonment for six months. 

Mr Kika, a leader in the previous urgent application of May 15 to bar Chief Justice Malaba from choosing to extend his term by five years was now trying to go further and wanted the High Court to dump standard legal precedent and find that the noting of the appeal could not affect the original declaratory order.

The urgent application was heard by Justice Amy Tsanga and Justice Slyvia Chirawu-Mugomba — after a third judge assigned to the hearing, Justice Webster Chinamora, recused himself citing professional reasons.

In dismissing the urgent application by Mr Kika, the two judges found that the noting of an appeal automatically suspends the execution of a judgment or decision appealed against.

Citing several case authorities, Justice Tsanga said that under the law as it stood, there could not be contempt on the part of Chief Justice Malaba when the legal position was that an appeal suspends an order appealed against. 

“The appeal suspends the order granted based as it is on the perceived wider consequential effects of the declaratory granted,” she said. 

“There is thus no need for us to go into the contempt argument as it does not come into play. The application for an order of civil imprisonment of the first respondent (CJ Malaba) for contempt of court is dismissed,” said Justice Tsanga writing the judgment of the court.

The contempt of court proceedings was triggered by the return of the Chief Justice to work on the strength of appeals noted to the Supreme Court challenging the May 15 High Court decision that neither Chief Justice Malaba nor any other sitting judge of the Constitutional or Supreme Courts had the option laid out in the latest constitutional amendment to extend their term of office until they were 75. 

The three High Court judges said only sitting High Court judges had that option.

The ruling was made on the Chief Justice’s 70th birthday, so he promptly stood aside. But once appeals were noted by the Attorney General and the Minister of Justice, Legal and Parliamentary Affairs the following week, he then followed the standard legal procedures, that noting an appeal stays a judgment, and returned to work.

This wounded Mr Kika, who as one of the applicants in the original urgent application pursued his case and was now seeking the finding that the Chief Justice was in contempt of court and seeking a six-month civil imprisonment for defying the High Court order.

But in his response through counsel, Chief Justice Malaba asked the High Court to reject the application for his arrest on contempt of court charges, arguing that he is lawfully in office. 

Arguing for Mr Kika, Adv Mpofu submitted that the order was capable of being obeyed as evidenced by the fact that CJ Malaba had obeyed the High Court order for about 10 days before he took the decision to go back to work. 

He underscored that the Chief Justice had acquiesced in the judgment and that the order was in fact granted in default against him. 

It was also his argument that a rule of suspension of an order pending an appeal favoured his client and that the CJ had only appealed to create procedural rights. 

But CJ Malaba’s lawyer Adv Lewis Uriri disagreed arguing that the order obtained by Mr Kika could be suspended by the noting of an appeal. 

He stressed that the declarator affected the rights of CJ Malaba to elect to be Chief Justice for another five years in accordance with Section 186 of the Constitution as amended. 

Adv Thembinkosi Magwaliba who acted for the Minister of Justice also criticised the order on the basis that it did not declare the rights of Mr Kika that had been violated.

He said it was incorrect to say that an appeal does not suspend a declarator order, as all judgments are suspended including a declarator.

Mr Addington Chinaka who represented Deputy Chief Justice Elizabeth Gwaunza and the Judicial Service Commission denied that there was any acquiescence on the part of the Chief Justice in the judgment as the JSC issued a statement that it would be appealing the judgment. 

The main thrust of his submission was that an appeal is an inherent part of the right to a fair hearing and in this regard there was an appeal, arguing that no extant order had been disobeyed.

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