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.