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‘Supreme Court can hear Malaba appeal’

The fringe view that judges of the Supreme Court are disqualified from hearing the appeal challenging the recent High Court ruling nullifying the extension of Chief Justice Luke Malaba’s tenure by another five years is legally out-of-place, a top legal expert has said. 

Three High Court judges ruled 12 days ago that Chief Justice Malaba’s continuation in office under the recent constitutional amendments was void as the option could not be chosen by sitting judges of the Supreme and Constitutional Courts although it was an option for High Court judges. 

Government has appealed against the High Court ruling in the Supreme Court. But some lawyers reckon that the matter is in a legal cul de sac as both the Constitutional and Supreme Courts were cited in the matter.

Constitutional law expert Professor Lovemore Madhuku differs with those running around shouting “constitutional crisis” because the Supreme Court was a separate institution. 

“That application may not succeed because the issue on appeal is a narrow point of law: any panel of senior judges ought to have the integrity to decide that legal point and give a detailed written judgment. We will all be able to read and analyse it.”

Prof Madhuku also noted that assuming that the Supreme Court judges decide to recuse themselves from the case, the President is empowered by the Constitution to appoint judges on fixed contract and so could appoint a panel of judges to the Supreme Court, to specifically preside over the appeal and dispose of it.

He said in any legal system, seeking the recusal of a panel of senior judges of appeal is a herculean task. 

“The issue of looking for additional judges can only arise if the panel of senior judges of appeal decide to recuse themselves,” said Prof Madhuku. 

“If that happens, at least three judges of the Supreme Court must be appointed for a  fixed term under section 186(3) of the Constitution. 

“Our law does not permit a Supreme Court panel of acting judges only. In an important matter such as this one, the appeal must be heard by five judges, three of whom must not be acting judges. The appointment of judges for a fixed term follows the same procedure as that of permanent judges.”

He said foreign judges cannot be appointed because under our Constitution only a citizen may be a judge or acting judge of the Supreme Court.

Commenting on the return to office of the Chief Justice once the appeal was noted, he said the general rule is that the noting of an appeal suspends the judgment appealed against. 

So it was correct at law for the Government, the Judicial Service Commission and the Chief Justice to treat the High Court judgment as suspended pending the appeal. 


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