By BREZH MALABA in Harare
Zimbabwe President Emmerson Mnangagwa

THE Zimbabwe High Court has ruled that the country’s Chief Justice, Luke Malaba, ceases to be the head of the judiciary at midnight on 15 May 2021, in a significant judgement that has serious ramifications for President Emmerson Mnangagwa’s 2023 re-election agenda. 


Malaba turns 70 on 15 May, the retirement age for judges. 

Mnangagwa has suffered a major setback after rushing two constitutional amendments through Parliament extending the retirement age by five years to 75. The court has now ruled that, in line with the constitution, if there is any change to the term limit, it must not benefit a sitting judge. 


Malaba has therefore ceased to be Zimbabwe’s top judge.  The court has effectively ruled that Malaba’s constitutional tenure has expired.


High Court judge Happias Zhou, one of three justices who handled the case, said: “In view of the decision that we have reached, Hon. Malaba ceased being a judge and CJ at 0000hrs on 15 May 2021.” 


The court case, brought by human rights lawyers opposed to what they described as a mutilation of the national constitution, has exposed a simmering power struggle between President Emmerson Mnangagwa and his deputy Constantino Chiwenga.

Chiwenga was head of the military which propelled Mnangagwa to power after a coup in 2017. Back then, there was an informal agreement between the two that Mnangagwa would serve one term and allow Chiwenga to take over in 2023. 


Mnangagwa has reneged on that pact and wants a second term.


Speaking outside the High Court in Harare today, prominent lawyer and former Finance minister Tendai Biti hailed the court’s ruling that Chief Justice Malaba has ceased to be the head of Zimbabwe’s judiciary. 


“It’s a judgement that protects the constitution,”  said Biti.


Ahead of the ruling, Mnangagwa’s allies in the Judicial Service Commission (JSC) were running scared that Chiwenga’s top ally in the judiciary, Judge President George Chiweshe and his foot soldiers would sink the strongman’s power consolidation and 2023 election project. 


The plan was designed and calculated to propel Mnangagwa’s re-election bid in 2023. Besides, Zanu PF also has an elective congress next year before the elections.


Malaba’s term was extended by five years on Tuesday this week in a process described by human rights lawyers as replete with “indecent haste”. In terms of the constitution before the amendments, Malaba was supposed to retire by operation of law at midnight on 14 May when he turned 70.  


The extension of his tenure by five years triggered the High Court battle, fuelling a deadly power struggle and cut-throat manoeuvres between Mnangagwa and Chiwenga ahead of congress and elections. 


Three High Court judges – Justices Zhou, Edith Mushore and Jester Helena Charewa – were on Thursday night locked in a court battle with the ministry of Justice, the JSC and the Attorney-General over the consolidated application which has thrown the cat among the pigeons.  


The JSC, fighting in Mnangagwa and Malaba’s corner, argued Chiweshe’s panel must be disbanded. It queried why Chiweshe was not cited in Kika’s application when he has sometimes served as Supreme Court judge, saying this was suspicious. It also charged that Zhou was conflicted as he wants to be a Constitutional Court (ConCourt) judge. The judges dismissed the issue against Zhou and said they will deal with the other preliminary issues together with merits, allowing the arguments to proceed. 


By demanding that the panel be disbanded and a new one be appointed by the most senior judge after Chiweshe – which means Justice Joseph Musakwa – the JSC was also objecting to the presence of Mushore and Charewa, showing it also does not trust the two ladies. 


Kika has taken 17 judges (initially 16 before Lavender Makoni was added) to court over Mnangagwa’s bid to extend their tenures through amendments which they say are unconstitutional and illegal. 

 
Malaba had already benefited.  


Kika’s application was consolidated with that of the Young Lawyers Association of Zimbabwe and businessman Frederick Charles Moses Mutanda which deals with the same issues, including the Malaba case and Constitution of Zimbabwe Amendment (No.2), the actual source of the problem. 


Apart from giving Mnangagwa power to extend the tenure of judges, Amendment No.2 overrides section 328 of the constitution which says incumbents cannot benefit from changes of the law on tenure. Lawyers say overriding section 328 without referring it to a referendum is unconstitutional. No referendum was held. 


As a result of a string of illegalities, various court applications are being filed in the ConCourt to challenge the amendments, which have sparked widespread outrage and protest among stakeholders.  


These cases risk creating a constitutional imbroglio – a messy entanglement of the executive, legislature and judiciary – hence crisis. 


The series of court applications are threatening Mnangagwa’s re-election project, which includes consolidating power, control and influence across the executive, judiciary, legislature, security sector and the media ahead of the elections.  
As a result, Mnangagwa has been pushing vigorously and spiritedly to make changes that give him more power and sideline Chiwenga. 


Mnangagwa and Chiwenga are locked in a war of attrition which began soon after the 2017 military coup that toppled long-time ruler Robert Mugabe. Chiwenga was Zimbabwe Defence Forces commander during the coup and basically installed Mnangagwa in power. 


However, the two fell out soon afterwards over a number of unresolved leadership and power-related issues.  


Insiders say Mnangagwa had agreed to serve one term – until 2023 – and thereafter allow Chiwenga to take over. He has, however, reneged on the agreement, triggering clashes and political brinkmanship between the two erstwhile allies.- Zambezi News24