The term of office of Zimbabwe’s Chief Justice Luke Malaba ended when he turned 70 on midnight Saturday, three High Court judges ruled in a seismic judgement.
President Emmerson Mnangagwa’s Zanu PF party rushed constitutional amendments through parliament which allowed him to extend the term of office of senior judges of the Supreme Court and the Constitutional Court by a further five years past retirement age.
Justices Happias Zhou, Edith Mushore and Helena Charehwa – in a judgement hailed as a victory for constitutionalism – on Saturday ruled that all incumbent judges of the senior courts could not benefit from an amendment to the constitution extending their term limits past retirement age.
For such constitutional amendments to have effect on incumbent public officers, the judges ruled, the amendments had to be put to a public referendum, which was not done.
“In view of the decision that we have reached, Honourable Malaba ceased being a judge and Chief Justice at 0000hrs on May 15, 2021,” Justice Zhou said while reading a summary of the full judgement by the three judges.
“The term extension does not apply to any sitting judges of the Constitutional Court and Supreme Court. There shall be no order as to costs.”
Lawyers said they would now return to court to challenge the procedure used to pass the amendments by suing the National Assembly, the Senate and President Emmerson Mnangagwa.
Malaba was elevated to Chief Justice in March 2017, replacing the late Godfrey Chidyausiku.
His appointment was greeted with hope, but the courts have – under his watch – come under fire for allegedly doing Zanu PF’s bidding with activist magistrates and judges accused of using “lawfare” against Mnangagwa’s opponents.
Malaba faced an unprecedented crisis last year when judges of the High Court openly rejected his directive that he should see their judgements before they are delivered. He withdrew the directive following the outrage.