Working in accordance with the Constitution of Zimbabwe Amendment Bill (no 2), the President had extended Malaba’s term to five more years after retirement. However, this decision was quickly reversed by the High Courts as a result of an urgent chamber appeal by the Zimbabwe Human Rights NGO Forum. Malaba lost his position just as quickly as he had regained it.

Going against the High Court ruling, a 70 years old Malaba reported for duty on the 24th of May 2021. The Zimbabwe Human Rights NGO Forum were quick to act. They issued the following statement calling for the arrest of Chief Justice Malaba for contempt of Court:

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Justice Happias Zhou who presided over the Malaba case was also part of the judges interviewed to fill the Constitutional Court vacancies in 2020. He even came third in the interviews thereby securing his place in the Constitutional Court.

However, as a result of the Constitution of Zimbabwe Amendment (no 2), things didn’t turn out as expected. President Mnangagwa selected the judges to be part of the ConCourt and Justice Happias Zhou was excluded. Critics are not surprised by this move as it seems to consolidate what they previously said about the President reportedly using the amendment bill to increase his powers. We covered that school of thought in a previous article you can find here.

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The Judges to be sworn in were interviewed in 2020 following the Judicial Service Commission’s (JSC) public notice on these interviews. However, there was no further development of the issue since then. It would seem that the President waited until the Constitution of Zimbabwe Amendment Bill (no 2) had sailed through.

Amendment Bill (no 2) allows the President to elect Judges without them going through any voting process. View the rest of the terms of the bill in this article. Critics have stated that the bill gives the President more power than a President in a so called Democratic nation should have.

This amendment bill is the same one that led to the recent back and forth in the Chief Justice Malaba Saga. You can read about it here.

The 5 Judges that will be sworn in today at 10 am by the Acting Chief Justice Elizabeth Gwaunza at the Constitutional Court are:

1. Justice Rita Makarau
2. Justice Paddington Garwe
3.  Justice Bharat Patel
4. Justice Ben Hlatshwayo
5.  Justice Anne-Marie Gorowa

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For those who are unaware of what has been happening, Chief Justice Malaba’s tenure was momentarily extended by the President. The high court later ruled against this. During the course of these court proceedings the Minister of Justice himself is said to have tried to interrupt.

Another urgent chamber application is said to have been filed by the minister while he simultaneously hinted that the judges were not just.

The President set that statement straight in his tweet stating:

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.

— President of Zimbabwe (@edmnangagwa) May 18, 2021

This statement supported the stance later adopted by Ziyambi’s ministry that said:

However, people on social media where these statements were released pointed out to the contradictory nature of the President’s word versus his actions. Although he mentions that the government respects the independence of the judiciary, the terms of the Constitution Amendment Bill (no2) seem to say otherwise.

Critics have previously pointed out that the amendment bill (no2) gives the President the ability to override the judiciary in some matters. View the terms of the bill here.

One such comment was shared by a Zimbabwe Lawyers for Human Rights member, Doug Coltart. View the tweet below:

With respect, sir, unless you fire Minister Ziyambi for his appalling attack on the judges, this all means nothing.

Also, if you care about the independence of the judiciary, why pass Constitutional Amendment No. 1 and 2 *both* of which undermine the judiciary’s independence? https://t.co/2S2eW216Et

— Doug Coltart (@DougColtart) May 18, 2021

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This issue managed to land Zimbabwe in international media outlets as we revealed in detail in this article.

Chief Justice Malaba’s term was extended 5 hours before he was due to retire as we covered in this article. However, an urgent chamber application was filed against this move and the results proceeded to be favourable and Malaba ceased to be Chief Justice.

Zimbabwean writer and lawyer, Pettina Gappah even shared her sentiments on the situation. Read on that here.

The situation highlights a level of “narrow-mindedness” as expressed by Gappah. One would think that we’ve seen enough of these events in less than a week’s period.

However, another urgent chamber application has been filed disputing the decision to remove Chief Justice Malaba from his position. Minister of Justice, Ziyambi Ziyambi, who was reported for contempt of court in the court proceedings that resulted in the ousting of Malaba is said to be responsible for this chamber application.

View the related documents below;

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The Chief Justice Malaba saga that has caused havoc is the one relating to his tenure extension. We covered the issue in detail here stating how the Constitution of Zimbabwe Amendment Bill (no2) had enabled President Mnangagwa to extend Malaba’s term just 5 hours before he was due to retire.

This seeming victory was short lived as a result of an urgent chamber application which was against the tenure extension. You can read about it here.

Pettina Gappah took to her twitter expressing the following:

“Behind CJ Malaba’s debacle is narrowness of vision. There is a huge legal world outside Zimbabwe. Malaba could have done what many retired judges do, interesting arbitration work, ad hoc tribunals etc. But he’d much rather be a big – and illegal – fish in a very small pond!”

Gappah has previously written for international outlets such as The Financial Times, The New York Times and The Guardian.

Behind CJ Malaba’s debacle is narrowness of vision. There is a huge legal world outside Zimbabwe. Malaba could have done what many retired judges do, interesting arbitration work, ad hoc tribunals etc.

But he’d much rather be a big – and illegal – fish in a very small pond!

— Petina Gappah (@VascoDaGappah) May 17, 2021

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The amendment bill, which we covered in detail here, allowed the President to personally handpick judges and extend their tenure as he pleases. So, just 5 hours before Justice Malaba was due to retire, the President extended his tenure. Critics have suggested that Malaba has played and will continue to play a vital role in the consolidation of Mnangagwa’s power. This is said to make him a necessary pawn in the upcoming 2023 elections.

However, an urgent chamber application against this move was filed by the Zimbabwe Human Rights Lawyers NGO Forum. The results proved to be favourable. The issue bears much gravity such that some international news outlets have reported on the matter. One such media platform is Kuwait Times. View it below:

Three Judges sat down on Friday to debate the issue of the legality of the tenure extension. Section 14 of the Constitution of Zimbabwe Amendment (no 2) Act was the one that had allowed the President to extend the Judges tenure. However, the Act was deemed invalid for its violation of section 56 (3) of the Constitution.

Although the ruling turned out favourably, there were some hurdles along the way. Zimbabwe’s Minister of Justice, Ziyambi Ziyambi is said to have tried to stop this court proceeding. The Justice Minister has since been reported for contempt of court.

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After a series of medical tests that showed that the Judge is still fit to carry out his responsibilities, President Mnangagwa personally extended his term to five more years.

How did this come to be?

In a previous article we discussed the role of the Zimbabwe Constitution Amendment Bill no 2 in making this possible. You can read the article here.

Chief Justice Malaba is reportedly ready to fight the urgent chamber application by the Zimbabwe Human Rights NGO Forum Executive Director, Dr Musa Kika. The chamber application aims at opposing the extension of the Judge’s term past his age of retirement. We covered that matter in an article you can find here.

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How did we get here? For starters, it has been expressed that Chief Justice Malaba tenure is to be extended beyond the retirement age. The Judge will be reaching the retirement age of 70 on the 15th of May. However, the recently passed amendment bill no 2 has granted the country’s President the power to extend the Judge’s tenure. Why is that an issue?

Many critics fear the role Chief Justice Malaba is likely to play in the upcoming 2023 elections. This fear emanates from his tremendous role in legitimising Mnangagwa’s rule after the coup. You can read about that in detail here.

View the Human rights forum urgent chamber appeal below:

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It is reported that this Judge was key in helping the Mnangagwa regime establish its rule following the coup that stripped former President Mugabe of his power. He is said to have continued to help President Mnangagwa legitimize and consolidate his rule even after the coup episode was over.

With the 2023 elections in the horizon some have pointed to the vital role that the Judge might be able to play for Mnangagwa. However, with his age quickly catching up to him, Judge Malaba was set for retirement by the 15th of May 2021. So how is it then that he is still in the picture?

We’ll rightly give all credits to the Constitution of Zimbabwe Amendment 2. The bill, which some critics have described as giving the President more powers, allows for Judges to go beyond the 70 year mark. In addition to this, the President now has the authority to handpick the Judges without them having to undergo the usual voting system. More on this amendment can be found here.

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