Top lawyers, Beatrice Mtetwa and Eric Matinenga have approached the Constitutional court in a fresh bid to have former Chief Justice Luke Malaba thrown out of the office.
They argue that the Constitutional amendments, the basis upon which Malaba’s term was extended, are unconstitutional and, therefore, are null and void.
The lawyers, in concert with another key human rights attorney Valerie Ingham-Thorpe and legal think-tank Veritas, have filed a Constitutional Court application suing Malaba and President Emmerson Mnangagwa, arguing that “both Constitutional Amendment Act No. 1 of 2017… and Constitutional Amendment Act No. 2 of 2021 are unconstitutional”
Parliament is also cited in the lawsuit, which argues that the two sets of amendments are “inconsistent with the provisions of Section 117(2) (b) [of the charter], which requires that Parliament make laws for the peace, order, and good governance of Zimbabwe.”
In a joint founding affidavit filed through Tendai Biti’s law firm, Matinenga argues:
_I aver and contend that the changes made in Constitutional Amendments No. 1 and 2, which allow the president to now solely appoint the Chief Justice and the Deputy Chief Justice, as well as extending the term of office of Constitutional Court Judges beyond the age of 70 as well as allowing current sitting judges of the Supreme Court and the Constitutional Court to benefit from the extension of the term of retirement from 70 to 75 is bad law which is against the principle of good governance of Zimbabwe espoused in the Constitution of Zimbabwe._
Matinenga, a former minister of Justice (GNU era) also opposed the removal of the running mate clause saying it was a further breach of Section 117(2) (b) of the Constitution.
The five-year extension of Malaba’s term by Mnangagwa beyond his retirement age was ruled illegal by the High Court on May 15 but Malaba quickly returned to work arguing the government had appealed.
This prompted lawyer Musa Kika and the Young Lawyers Association of Zimbabwe to press contempt of court charges saying Malaba had failed to honour the judgment.