Pushback is mounting against the controversial constitutional amendments that made the extension of Luke Malaba’s tenure as Chief Justice “permissible”, with top lawyers Beatrice Mtetwa and Eric Matinenga leading the latest charge to have Malaba thrown out of office.
The two, in concert with another key human rights attorney Valerie Ingham-Thorpe and legal think-tank Veritas, have filed a Constitutional Court application suing Malaba and President Emmerson Mnangagwa, arguing that “both Constitutional Amendment Act No. 1 of 2017… and Constitutional Amendment Act No. 2 of 2021 are unconstitutional” and should be voided.
Parliament is also cited in the lawsuit, which argues that the two sets of amendments are “inconsistent with the provisions of Section 117(2) (b) [of the charter], which requires that Parliament make laws for the peace, order, and good governance of Zimbabwe.”
The alterations, among other fiercely contested provisions, empower the president to appoint judges of superior jurisdictions without subjecting them to Public scrutiny through interviews.
In a joint founding affidavit filed through Tendai Biti’s law firm, Matinenga argues: “I aver and contend that the changes made in Constitutional Amendments No. 1 and 2, which allow the president to now solely appoint the Chief Justice and the Deputy Chief Justice, as well as extending the term of office of Constitutional Court Judges beyond the age of 70 as well as allowing current sitting judges of the Supreme Court and the Constitutional Court to benefit from the extension of the term of retirement from 70 to 75 is bad law which is against the principle of good governance of Zimbabwe espoused in the Constitution of Zimbabwe.”
He also opposes the removal of the running mates clause from the 2013 Constitution saying “when account is taken of the foundational issue that the Constitution wished to address, namely the uncertain succession issue relating to the late President Mugabe, at the level of the State President” was a further breach of Section 117(2) (b) of the Constitution”, adding “such Acts are not permitted at law and, therefore,… should be set aside.”
The former opposition MDC lawmaker and justice minister in the 2009-2013 power-sharing government with Zanu PF says their “application is about protecting” the national charter which “is the supreme law of the country.”
The basic structure of the Zimbabwean constitution, Matinenga says, is predicated on the principle of separation of powers, and independence of the judiciary – founding principles which he reasons are codified in Section 3 of the supreme charter.
“I maintain that any Constitutional Bill or Act affecting the basic structure of the constitution is against the peace, order and good governance of Zimbabwe and is, therefore, unconstitutional to the extent that the two laws now allow the president to appoint judges and to temper with their offices, this is a fundamental redrafting of the constitution and a fundamental defacement of the basic structure and values of the constitution,” Matinenga submits.
The passage of Constitutional Amendment Bill No. 1 by the legislature, he adds, was in breach of Section 147 of the constitution which provides that on the dissolution of Parliament, all proceedings pending at the time are terminated and every Bill, motion, petition, and other business lapses.
“The portion of the judgment of the Constitutional Court in the matter of Innocent Gonese and Jessie Majome v Speaker of Parliament & Others CCZ4/20 directing that the Senate passes Constitutional Amendment Bill No 1, within 180 days from the declaration of invalidity was a nullity… This is the essence of the instant application,” Matinenga submits.
Majome and Gonese had argued successfully against the Bill but Malaba, leading the bench, suspended his ruling for five months to give the government time to make the necessary adjustments and ram it through. Malaba is cited in that regard in this suit.
Opposition MDC Alliance MP for Chitungwiza North Godfrey Karakadzayi raised similar objections in a case filed with the Constitutional Court last week in which he is seeking an order nullifying the Senate vote of April 2021 on the Bill saying it was unlawful.
The five-year extension of Malaba’s term by Mnangagwa beyond his retirement age was ruled illegal by the High Court on May 15 after two applications by lawyer Musa Kika and the Young Lawyers Association of Zimbabwe, and his deputy Elizabeth Gwaunza was installed as Acting Chief Justice.
But Malaba quickly returned to work arguing the government had appealed, prompting Kika to press contempt of court charges saying he had failed to honour the judgment.
The matter was heard last week and the ruling is pending.