Application that Zim’s former CJ be found in contempt of court

28 May 2021 · Carmel Rickard

The decision by Zimbabwe’s former Chief Justice, Luke Malaba, to return to work despite a high court declaratory order that his tenure of office ended when he turned 70, has been challenged in court with an application that the former CJ be found in contempt of court, fined and imprisoned, for acting in a way that precipitated a ‘constitutional crisis’. The contempt application was brought by a human rights lawyer involved in one of the two applications leading to a court finding that Judge Malaba could not stay on in office beyond his 70 th birthday.

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Zimbabwe human rights lawyer, Musa Kika, has launched an urgent high court application for the former Chief Justice, Luke Malaba, to be found in contempt of court. This follows Judge Malaba’s return to work despite a court finding that he could not legally continue in office after turning 70.

In his application, Kika says that on 15 May the high court unanimously found that Judge Malaba’s term of office had come to an end. The decision was read out in court in the presence of the former CJ’s legal team. Immediately afterwards, Judge Elizabeth Gwaunza assumed the position of acting Chief Justice of Zimbabwe and has been carrying out the duties associated with that office

However, according to Kika, ‘On the 24 May 2021 [the former CJ] simply decided that he was going to return to “work”. He did. He was defiant in doing so.’

Purported

‘For the entire day on 24^th May 2021, [he] purported to exercise the functions of the Chief Justice of Zimbabwe. It did not bother him that the country has an Acting Chief Justice in the form of [Judge Gwaunza]. He has since that day continued to present himself at “work” and to purport to exercise the functions of the Chief Justice.’

According to a comment by an official of the judicial service commission, carried in the Herald newspaper, he had returned to work believing that the appeal pending against the judgment of 15 May had the effect of suspending its operation. The media carried similar comments made by other government officials.

However, this view was not correct since the 15 May judgment was in the form of a declarator ‘and is for that reason not suspended by the noting of an appeal,’ said Musa.

‘Embarrassing contempt’

‘I submit that as a jurist of distinction [the former CJ] is aware of this position’.

Musa said that the former CJ’s actions in returning to work was ‘calculated to prejudice the hearing of the appeal that he now seeks to rely upon. … [T]here is no doubt in my mind that [he] intends to be on the ground and in control if and when the appeal is heard.’

He said that the contempt was ‘not a small matter’. It was being perpetrated by a former Chief Justice ‘who wants to force himself into the highest judicial office in the land. It is an embarrassing contempt.’

In addition, it put the judiciary into disrepute. As the former CJ was a registered legal practitioner, the Law Society of Zimbabwe’s disciplinary and ethics committee had to become involved with the matter, and Musa asked for an order to that effect.

Imprisonment

He said there was need for an admonitory fine to be imposed and that a term of imprisonment was ‘unavoidable’. If the court were to impose only a suspended sentence for the contempt it should be on the basis that the former CJ ‘forthwith ceases and desists from exercising the functions of the office of Chief Justice, either in a judicial or administrative function.’

It was clearly a matter of urgency since the former CJ was continuing the contempt of which Musa complained, thus projecting the image of a ‘dysfunctional institution and country’.

Referring to the extraordinary statement issued by the Minister of Justice after the decision of 15 May – the minister effectively threatened the judges involved in the case – Musa said that the actions of the CJ in returning to work ‘feeds off’ the minister’s statement. In fact, the minister’s statement had ‘emboldened’ the former CJ to commit ‘this contempt’.

Constitutional crisis

The continuation of the former CJ’s contempt ‘precipitates a constitutional crisis’, according to Musa. ‘He continues to conduct himself under the name of the law but without its authority. All his decisions are void and he must not be allowed to make them.’

On the question of costs, he said a punitive costs order should be made since the contempt was ‘insidious, pervasive and impacts on the integrity of the judiciary’. Moreover, it was ‘unnecessary’. The former CJ had been used to handing down judgments ‘which have been obeyed by Zimbabweans from all walks of life even if they may not have agreed with them. He must also yield to the authority of the court.’

In a related development, members of Zimbabwe’s ruling Zanu PF youth wing have invaded the farm of a war veteran who was a party to the application testing the validity of the extension of Judge Malaba’s term of office. Local media report that the Mashonaland West farm owned by Frederick Mutanda, was occupied by 25 ‘youth from Harare’ who claimed that Mutanda is ‘anti-government’.

Carmel Rickard

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