By Mari Matutu | I had an hour long debate with one Dr Masimba Mavaza on retirement of Luke Malaba. He seem to suggest some other power that can excuse Luke Malaba from retiring on 15 May 2021. (AUDIO LOADING BELOW…. )
I will show you how it is impossible for Malaba to be in office after his 70th birth day
1) Section 186 of constitution “Tenure of office of judges
(1) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years, but—
(a) they must retire earlier if they reach the age of seventy years; and
(b) after the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.
(2) Judges of the Supreme Court, the High Court and any other Judges hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire.
(3) A person maybe appointed as a judge of the Supreme Court, the High Court and any other courts for a fixed term, but if a person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of seventy years even if the term of his or her appointment has not expired.
(4) Even though a judge has resigned or reached the age of seventy years or, in the case of a judge of the Constitutional Court or a judge referred to in subsection (3), reached the end of his or her term of office, he or she may continue to sit as a judge for the purpose of dealing with any proceedings commenced before him or her while he or she was a judge.
(5) A judge may resign from his or her office at any time by written notice to
the President given through the Judicial Service Commission.
(6) The office of a judge must not be abolished during his or her tenure of office.”
It is very clear that a Chief Justice is a Judge of the Constitutional court- it is clear that he signed a non renewable contract of 15 years. It is clear that Malaba is turning 70 years on 15 May 2021. Which means he must retire earlier than his term. The word “must” is a command not an option.
Only judges of CC that finish their 15 year term without reaching 70 may be appointed as Judges of SC or HC but never CC. This closes tight the chance of anyone to extend beyond 70.
Dr Mavaza tried to hide on 186(4) and say that is a window for extending Malaba’s time. But then who is blind to see that judges under this provision are seating on a case they previously sat on which need to be finished. That is common cause. It has nothing to do with your term of office but the case the judge partly heard. It is the judge who first heard the case who must finish it.
2) Dr Mavhaza went on to rely on the amendment being done in parliament. Without bringing any argument on the merits or demerits of the outcome of amendments being fronted in parliament, it is easy to show Dr Mavaza from s328(7) of constitution that Luke Malaba is not a beneficiary of what ever comes from the parliament.
Section 328(7) “Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
It must be clear to anyone that as of today 16 April 2021 even if the parliament passes the bills into law and allow the extension of term beyond 70 years, that cannot benefit Malaba. He will go and leave the next person to enjoy it.
3) Again Mr Mavaza, should zanu try even to amend s328(7) then s328(9) is a double safety catch
“Section 328(9) This section may be amended only by following the procedures set out in subsections (3),(4), (5) and (6), as if this section were contained in Chapter 4.”
If say zanu want to amend even the s328, it has to go for a referendum in order to allow the changes.
This must be clear to everyone that Malaba has no room to extend. Bye bye Malaba bye bye.