GOVERNMENT last night made a major climbdown on former Chief Justice Luke Malaba’s case, with President Emmerson Mnangagwa saying his administration respected the decision made by the High Court on Saturday.
This was after his Justice minister Ziyambi Ziyambi had threatened unspecified action on the judges who ruled against extension of the former Chief Justice’s term of office by five years.
In a tweet last night, Mnangagwa said:
“In Zimbabwe, the independence of our judiciary is vital to the survival of our democracy. When our courts speak, all Zimbabweans should listen. The Government or Zimbabwe wholeheartedly respects the independence of our judiciary.”
His stance was at variance with Ziyambi who accused the three High Court judges – Justices Happias Zhou, Jester Helena Charehwa and Edith Mushore of being captured by foreign forces.
The latest development comes amid reports that government bungled its appeal by lodging its papers at the Supreme Court instead of the Constitutional Court (ConCourt).
Ziyambi and Attorney-General Prince Machaya filed the notice of appeal on Monday.
In an interview yesterday, law expert and lecturer at Kent University, Alex Magaisa confirmed that the appeal by the government was “misplaced” as it was supposed to be lodged at the ConCourt.
“We are talking of either two avenues, it could be an appeal, the legality or the legal process of having an appeal from a decision of the High Court would be that it doesn’t go to the Supreme Court and this in terms of the very reason which was made in 2020 by Justice Paddington Garwe and agreed to by fellow judges of the Supreme Court, that such an application goes direct to the ConCourt and this is in the case of Mfundo Mlilo versus the President of Zimbabwe,”
“So in my opinion and I think the opinion of most lawyers who appreciate the legalities of this, it’s a fact that the application in the Supreme Court is in the wrong forum and it has to go to the ConCourt.”
He said even if the case was correctly in the ConCourt, that did not solve the problem because all the judges of the two courts were cited and were conflicted to the extent that they could not sit in judgment of a case in which they are interested parties.
“Even the point that the case has to go to the ConCourt for confirmation, even assuming that’s the correct position, it still requires to be heard by a full bench of the ConCourt. As I pointed out before, all those judges of the ConCourt are conflicted. This is the nub of the crisis that we face and I have explained that a constitutional crisis arises from many situations. One of the situations is when the constitutional arrangements no longer have mechanisms to provide a resolution to a dispute,”
he said. Magaisa said in this case there was no mechanism to solve the crisis because all the judges are conflicted and whatever they do would be tainted by illegality.