An urgent application, brought over the weekend to stave off a constitutional crisis in Zimbabwe, may not have achieved this aim. The case challenged the extension of office of the country’s Chief Justice, Luke Malaba, for an additional five years beyond the constitutionally mandated retirement age of 70, thanks to a new constitutional amendment. Human rights lawyer Musa Kika, in whose name the case was brought, said that if Malaba were to stay on, unconstitutionally, then all decisions he made would be void. The only way to stave off a constitutional crisis was for the court to hear the matter urgently, he argued. After a marathon hearing, the three High Court judges agreed that Malaba had to step down at 70 and that the Deputy Chief Justice should now become the Acting CJ.
This has provoked a furious reaction from the Minister of Justice who claimed that the judiciary had been ‘captured’ by foreign elements. But, as Carmel Rickard argues in her A Matter of Justice column on the Legalbrief site, the outcome of the case creates a problem for those who wish to appeal. As all the Supreme Court judges have been cited in the case – they, too, are affected by the amendment that grants an additional five-year tenure – who is to hear an appeal? Rickard says that there is a highly relevant case from SA in which the Constitutional Court simply refused to accept an appeal since its members would have to recuse themselves as they had a ‘real or perceived interest’ in the matter. It is a conundrum with no easy answer for the Zimbabwean courts.