BY DESMOND CHINGARANDE HIGH Court judge Justice Gladys Mhuri yesterday dismissed an application by activist Namatai Kwekweza, who sought to challenge the legality of the extension of Chief Justice Luke Malaba’s term of office by five years.
On May 16 last year, President Emmerson Mnangagwa extended Malaba’s term of office saying he was medically fit to continue as the country’s top judge despite being 70 and was supposed to go on retirement in terms of the provisions of the 2013 Constitution.
To effect the extension of office, the President signed Constitution of Zimbabwe Amendment (No. 2) Act into law on May 7, 2021.
Several human rights organisations, including Zimbabwe Human Rights NGO Forum executive director Musa Kika, contested the decision without success.
On May 20 last year, Kwekweza wrote to the Judicial Service Commission (JSC) through her lawyers Scanlen and Holderness requesting information relating to how the JSC had arrived at the decision to recommend the extension of Malaba’s term of office beyond retirement age.
“How did the JSC come to a decision on the appropriate recommendation to make to the President under section 186(1) of the Constitution of Zimbabwe relating to … Malaba’s bid to continue as CJ for another five years? In particular, was a meeting held by the commissioners for this purpose? Was a resolution passed to make the appropriate recommendation? If so, may we have a copy of the resolution? If a resolution was passed … which commissioners of JSC voted in favour of recommending that … Malaba’s tenure be extended for another five years and which commissioners voted against?” Kwekweza submitted in her letter.
The JSC responded through its legal practitioners Kantor and Immerman dismissing Kwekwedza’s request saying that it infringed on the individual’s rights.
“Kindly note that our client avers that the information request you have made is not in accordance with the applicable law. Any such request is subject to the rights of the individuals and institutions concerned. There’s no automatic right to the information,” the JSC lawyers wrote back.
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Kwekweza was, however, not satisfied with the response and she filed a High Court application.
In her ruling, Justice Mhuri said: “The Constitutional Court declined to confirm the orders and set them aside. In essence, the case confirmed the CJ’s position to remain in office for the next five years as accepted by the President. It sealed and brought to finality any challenge to the CJ’s extension of tenure and all the processes that led to it.
“That issue, therefore, is no longer live and is moot. This notwithstanding is there any benefit to the applicant or the public at large at this stage to order that the respondent answers ‘yes or no’ as submitted by applicant when the issue is no longer live, or as submitted by the respondent when the horse has bolted.”
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