Donald Chakamanga
The Constitutional Court of Zimbabwe has reserved judgement on an appeal brought by Marx Mupungu seeking to invalidate a High Court judgment which ended the tenure of office of Chief Justice Luke Malaba on 15 May 2021.
The seven-member bench led by Deputy Chief Justice Elizabeth Gwaunza heard oral submissions from the appellant and respondents’ lawyers.
The respondents were cited as Justice, Legal and Parliamentary Affairs minister, the Judiciary Services Commission, Musa Kika, Young Lawyers Association of Zimbabwe, Fredrick Charles Moses Matanda, the Attorney-General and President Mnangagwa, respectively.
Mupungu is being represented by Professor Lovemore Madhuku and Advocate Lewis Uriri.
In his submissions, Professor Madhuku argued that the appellant is just an ordinary citizen of Zimbabwe and is concerned that the Constitution is being violated.
He further submitted that the High Court judgment should not be confirmed because the appointment was done in good faith.
He said Mupungu enjoys sufficient interest in defence of the Constitution and he had an automatic interest to appeal.
Furthermore, Professor Madhuku said the High Court judgment sought to invalidate the provisions of the Constitution and the conduct of the President.
“Section 186 of the Constitution speaks about the powers of the President to appoint and extend the term of the judges of the Supreme and ConCourt.
“Therefore, there is an indirect declaration of invalidity of the constitution,” he said.
Young Lawyers Association of Zimbabwe and Mutanda, through their lawyer Advocate Andrea Dracos, argued that the appellant has no sufficient interest because the grounds of the interest had not been set out.
Adv Dracos submitted that the appellant cannot claim to have the Order by The court a quo set aside because he was not part of the initial proceedings at the High Court.
He said the issue of sufficient interest does not apply to any person because if that is allowed anyone can come to lodge an appeal against the Parliament or the President.
In appealing for sound interpretation of the Constitution, Adv Dracos said the appellant did not attach the record of proceedings as required by the law.
Adv Tawanda Zhuwarara, an amicus curiae said the ConCourt should stand its ground and provide an investigatory role.
He noted that the Apex court should determine whether the High Court judgment is valid or not.
He argued further that the issue of sufficient interest is not wide as it is being highlighted by the appellant and not narrow as being submitted by the respondents.
Adv Zhuwarara said judiciary authority is derived from the people of Zimbabwe and is invested in the courts, therefore, the appellant has rights to be heard in court.
According to Rule 18 of the High Court, the Court a quo dealt with a matter which it did not have jurisdiction.
Addressing the media after the proceeding, Advocate Noble Chinano representing Musa Kika said he had not filed submissions because his client believed that the entire ConCourt bench was conflicted as it was cited in the High Court case.
The High Court in May this year ruled that CJ Malaba could not benefit from the amendment of the Constitution which allowed judges to serve beyond 70 years.
President Mnangagwa had extended Malaba’s tenure a few days before the judgment was made.
