PRESIDENT Emmerson Mnangagwa has appointed five judges of the Constitutional Court (ConCourt), but a law expert pointed out that they would be unable to hear government appeal over a High Court ruling that nullified the extension of Luke Malaba’s term as chief justice.
The new appointees are Justices Paddington Garwe, Rita Makarau, Anne-Mary Goora, Bharat Patel and Ben Hlatshwayo. The five will be sworn in today.
They will constitute the ConCourt bench together with chief justice and deputy chief justice.
Government has appealed a ruling by High Court judges — Justices Happias Zhou, Jester Helena Charehwa and Edith Mushore which on Saturday nullified the extension of Malaba’s term of office by five years after he reached retirement age.
The ruling attracted an outburst from Justice minister Ziyambi Ziyambi, who attacked the judges, claiming foreign nations had captured the Judiciary.
Law expert and lecturer at the University of Kent, Alex Magaisa yesterday said the new ConCourt judges were cited as respondents in the case and could not preside over the appeal even if the matter found itself in the ConCourt.
“They can’t sit in court to make a determination in this particular case because all the judges are cited in the court application and they are part of the appeal,”
“They don’t have power to seat in a case in which they are also parties to that action. The same argument holds, it doesn’t change, that we are in a constitutional crisis.”
Magaisa said the development in Zimbabwe only needed a political solution to take the country out of a constitutional crisis. He gave an example of the former late President Robert Mugabe whom he said resigned in November 2017 after he was cornered by the military to save the country from a constitutional crisis.
“Even in this case, there is an appeal that has been done, even though they have the right to appeal, the problem, as I said, is that, there is no legal solution to this problem because of the conflicted nature of the Supreme Court and ConCourt,”
“There is a judgment which has been accepted, they have accepted and must abide by it. You can’t say that you accept a judgment of the High Court and at the same time you go on to act against what it says.”
Magaisa added: “The political solution might be that the government has to withdraw what it has done and start all over again.
“Parliament itself acted illegally, it acted unlawfully and mind you there is also Amendment No 1 which is also marred in illegality and it is that amendment that provides for the appointment of chief justice and deputy chief justice. Because of its illegality, I believe a fair and impartial court can’t declare it legal. You still have the same problem.”
Former Deputy Prime Minister Arthur Mutambara yesterday derided Mnangagwa for plunging the country into a crisis after hastily signing the Constitutional Amendments No 1 and 2 into law.
“This is not leadership. You should not have signed both Amends (sic) No 1 and No 2 when it was clear that they violated our Constitution. You should have sent them for review by the ConCourt. The speed with which you signed No 2 was pathetic,”