Lawyer and director of Zimbabwe Human Rights NGO Forum, Musa Kika have filed an urgent High Court application litigating Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi and 16 judges seeking an order for Chief Justice Malaba to resign by May 15.
The application comes at a time Amendment Bill No. 2 was signed into law by President Emmerson Mnangagwa, giving him powers to appoint and also extend tenure of office for serving Judges.
Kika who is represented by Advocate Thabani Mpofu instructed by Cinginkosi Dube of Scalen and Holderness argues that Chief Justice Luke Malaba cannot benefit from an extended term of office beyond the age of 70.
"Luke Malaba must or did at midnight on May 15, 2021, cease to hold the office of Chief Justice of Zimbabwe" and that "any action, conduct or deed of Luke Malaba post May 15, 2021, purportedly as the Chief Justice of Zimbabwe is null and void and of no effect." said Kika in his founding affidavit.
Kika is also seeking the current deputy Chief Justice Elizabeth Gwaunza to be pronounced Acting Chief Justice until Malaba's successor is appointed with Justice Paddington Garwe becoming the Acting Deputy Chief Justice until a substantive appointment is made.
The NGO Forum director argues that the Amendment cannot effect extending terms of office for the 16 judges.
"I submit in this regard that the law is clear. Whatever else the amendment purports to do, it does not and cannot have the effect of extending the tenure of second to seventeenth respondents (judges). In view of the correct legal position, whether the amendment be valid or otherwise, the fact of the matter is that it cannot benefit the respondents.
"I am aware that second respondent (Malaba) turns 70 at midnight on May 15, 2021. He must in accordance with the law immediately cease to hold the position of Chief Justice of Zimbabwe. This is by constitutional command. Respectfully, second respondent has run his course... "
Kika says the matter should be heard urgently because of a real danger that Malaba "may continue in office post-May 15 and that if he does that all his actions would be void, including the administration of the judiciary and the resolution of disputes in court." he argues.