HARARE – Embattled Chief Justice Luke Malaba was entitled to return to office after an appeal was lodged against a High Court ruling that he ceased to be a judge upon reaching the retirement age of 70 on May 15, a court ruled on Thursday.

Justices Amy Tsanga and Sylvia Chirawu-Mugomba said the effect of two appeals filed by Justice Minister Ziyambi Ziyambi and the Judicial Service Commission was to suspend the order of the High Court.

Zimbabwe Human Rights NGO Forum director Musa Kika had asked the High Court to find Malaba in contempt after he returned to work. Kika also wanted Malaba fined and jailed for six months which could be suspended if he complied with High Court ruling.

“There can be no contempt on the part of the first respondent (Malaba) when the legal position is that an appeal suspends an order appealed against,” the Justices Tsanga and Chirawu-Mugomba ruled on Thursday.

The judges said the “wider consequential effects” of the declarator granted by the High Court on May 15 impacted on Malaba’s individual rights, particularly because “the law giving first respondent as well as others in his group those rights to extend tenure remains extant and has not been declared illegal.”

“There is thus no need for us to get into the contempt argument as it does not come into play… The application for an order of civil imprisonment of the first respondent for contempt of court is dismissed. There shall be no order as to costs,” the judges said.

Malaba was due to retire on May 15 until President Emmerson Mnangagwa’s Zanu PF party rushed through constitutional amendments allowing him to extend the tenure of Supreme Court and Constitutional Court judges for five years past the retirement age of 70 decreed by a constitution adopted in 2013.

The High Court ruled that a constitutional amendment does not benefit an incumbent, effectively retiring Malaba. Where an incumbent public officer wished to have their term extended, this would require a constitutional amendment to get affirmation through a public referendum, the court said.

The government is appealing at the Supreme Court with Mnangagwa desperate for Malaba – who dismissed a 2018 election challenge by his rival Nelson Chamisa – to stay on.

Lawyers for Kika say it is not ideal for Malaba to be head of the judiciary at the same time as his fate is being decided by fellow judges.