High Court Judges, Justices Happias Zhou, Edith Mushore and Jesta Charehwa yesterday ruled that incumbent judges of the senior courts could not benefit from an amendment to the Constitution extending their term limits.
The ruling had the effect of retiring Zimbabwe's Chief Justice, Luke Malaba, who turned 70 — the legal retirement age — at midnight yesterday (Saturday). The court ruled that the amendment needs to be put to a public referendum.
Pursuant to the High Court ruling, the Judicial Service Commission said Justice Elizabeth Gwaunza is acting Chief Justice.
In a statement last night, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said Government would exercise its right to appeal the ruling.
"We have taken note of the decision made by the court, and as a country which respects the rule of law, we will respect that decision, but you must also know that as litigants, we have our rights which are protected by the law.
"With the greatest of respect, we do not agree with the decision of the court for so many reasons and for that reason, we have already instructed our lawyers to file an appeal first thing on Monday morning."
Minister Ziyambi questioned why Justice Zhou refused to recuse himself from presiding over the case following an application by one of the respondents pleading for his recusal arguing that he was conflicted. He said the speed at which the court heard the matter puts into question the motives behind the application.
"We do not understand how the Honourable Justice Zhou insisted on proceeding with the matter after we sought his recusal because he is clearly conflicted. We are also at a loss as to how the Honourable Judge president of the High Court was excluded from being cited in the litigation which included all Judges of the High Court who have acted in the Supreme and Constitutional Courts. We are further alarmed that these proceedings went on through the night up to midnight. This is a typical case of a night court, consisting of night judges and night lawyers."
Minister Ziyambi said Government lawyers have not been furnished with court's full judgment, which he said they would require to file an appeal. The ruling, he said, was a typical case of judicial overreach which Government would not accept.
"The Judges have not given us the judgment — they know that it is our right to file a notice of appeal, and we can only do that after we have been favoured with reasons of their decision, which they have not provided us with.
"Our conclusion is that they are therefore attempting to disable us from filing an appeal because they know that after we file an appeal, their decision will be suspended. We have nevertheless requested our lawyers to put together our reasons for the appeal with the little information that they have provided us with.
"One issue that is worrying which even the most basic layman would want to know is that the Judges appear to base their decision on the interpretation that is given to Section 328 (7) of the Constitution and the new section 186 (4) of the Constitution but surprisingly, the interpretation of the provisions was not before them, and secondly, the institutions that put into effect these provisions, that is Parliament and the President, were not cited in this application — how do they make such a decision without the benefit of having heard the side of Parliament and President who legislated these provisions? How does the Judiciary turn itself into an Executive and Legislature at the same time?"
He said Government was aware of multi-lateral and foreign organisations who have poured money through the Zimbabwe Lawyers for Human Rights to capture various state institutions and to destabilise the Government. The country, said Minister Ziyambi, risked falling into the trap of judicial capture.
"I want to make it clear today that we do not accept the decision of the High Court. We have a serious situation of a Judiciary that has been captured by foreign forces in this country," he said.
Meanwhile, the Judicial Service Commission (JSC) has appointed Justice Gwaunza acting Chief Justice pending appeal.
"The JSC wishes to advise that in compliance with the Order of the High Court of Zimbabwe, but subject to a pending appeal to be filed in due course by the 2nd to the 19th Respondents; and the 1st and 2nd Respondents respectively, in HC 2128/21 and HC 2166/21; the Honourable Deputy Chief Justice of the Republic of Zimbabwe, Justice Elizabeth Gwaunza, is now the Acting Chief Justice of the Republic of Zimbabwe by operation of law in terms of Section 181 (1) of the Constitution of Zimbabwe."
The Young Lawyers Association of Zimbabwe (YLAZ) filed the application.
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