HARARE – Embattled Chief Justice Luke Malaba has asked the High Court to toss out an application for his arrest on contempt of court charges, arguing that he is lawfully in office.
Three High Court judges ruled on May 15 that Malaba had ceased to be a judge and Chief Justice after reaching the retirement age of 70.
After Deputy Chief Justice Elizabeth Gwaunza acted as Chief Justice briefly, Malaba returned to office arguing that the High Court ruling had been suspended by an appeal filed by Justice Minister Ziyambi Ziyambi.
Lawyers for constitutional law activist Musa Kika who originally sued Malaba after his term was purportedly extended for five years by President Emmerson Mnangagwa dispute that an appeal against a declarator suspends the operation of a judgement and have asked the High Court to find him in contempt and jail him.
The crisis engulfing the head of Zimbabwe’s judiciary comes as exiled former minister Jonathan Moyo claimed on Monday that the Judicial Service Commission was involved in illegal moves to influence a panel of three High Court judges to rule in Malaba’s favour ahead of a hearing on Thursday.
“Consequent upon the filing of the appeals in SC130/21 and SC131/21, I’m advised that regardless of by whom the appeals were noted, the legal effect thereof was to suspend the operation of two orders relied upon by the applicant in this matter,” Malaba is arguing in response to the contempt application.
“I therefore resumed my duties as the Chief Justice of Zimbabwe following the noting of an appeal by the Minister of Justice and the Attorney General on the basis of the interpretation of the law to the effect of the noting of an appeal against an order granted by this court, not only for the people but for the world at large.
“My understanding is that a declaratory is an order that sets out what the law is where there is a dispute on the position of the law for future purposes of the application of that law.
“It is for this reason that a declarator without consequential relief is not executable. It does not create rights or obligation. The appeal against such an order will not suspend it because it does not have an immediate effect on the rights of any person.”
Malaba said Kika failed to interpret the law adding that his application was not based on a good cause. He maintains that the process that led to his appointment by Mnangagwa was not set aside and as such his appointment “cannot be directly attacked.”
He further argues: “With regards the court orders leading to the present application, the first paragraph of the orders has the effect of immediately and summarily terminating my right to continue in the office of Chief Justice… It has final effect.
“Where an order has the effect of determining a person’s right(s) in finality that person has an immediate right to appeal and the law is clear that such an order is suspended pending resolution of the appeal to avoid permanent damage to the rights of the person concerned or affected thereby in case the court a quo erred in granting the order.”
He said granting the contempt of court application before the appeal was heard at the Supreme Court “would amount to one view being adopted without having heard the opposing view and therefore presumptive and a miscarriage of justice.”
In a tweet on Monday night, former minister Jonathan Moyo claimed: “Fear has gripped the JSC corridors. Today, one of the members of the three-panel bench to hear the Malaba contempt case this Thursday, who had been assigned to lobby the other two for Malaba, reported back to the JSC secretary to ask him to get Virginia Mabhiza to rescue Malaba!”
No comment could be obtained from JSC secretary Walter Chikwana.
