THE Constitutional Court will on Wednesday hear an application by a Bulawayo man seeking to ensure that troubled Chief Justice Luke Malaba remains in office and the case has a very serious bearing on the future of Zimbabwe’s judiciary.
Malaba, who was meant to retire in May after reaching the age of 70, was the first beneficiary of the controversial 27 amendments to the constitution after President Emmerson Mnangagwa handed him another five years at the helm.
Three High Court judges subsequently ruled that he had ceased being chief justice as he was not eligible to benefit from the amendment of the constitution.
Several manoeuvres by the usual suspects have been underway to ensure that Malaba stays as chief justice at all costs.
One such spirited attempt is being led by Max Mupungu, reported to be a Zanu PF supporter, and it is his case that will be heard on Wednesday.
The popular sentiment among neutral legal experts is that Malaba should have resigned as soon as it became clear that the renewal of his term of office was being contested.
Some have cited the case of former South African chief justice Sandile Ngcobo, who resigned in 2011 after then president Jacob Zuma tried to use a new piece of legislation to extend his term for five years.
Justice minister Jeff Radebe at the time said: “Chief Justice Ngcobo said he found it undesirable for a chief justice to be party in litigation involving the question of whether or not he should continue to hold office as this distracts from the integrity of the office of the chief justice and the esteem in which it is held.”
The situation is much worse when it comes to the Malaba case. The outcome of the case will have a bearing on the future of the Constitutional Court judges that will hear Mupungu’s case.
To say the judges are conflicted will be an understatement. Deputy Chief Justice Elizabeth Gwaunza refused to recuse herself from the case and she has the unenviable task of deciding the future of her boss.
Since the case has reached a point of no return, Zimbabweans are still hopeful that the judges will put the interest of the country above those of individuals.
The judiciary is an important pillar in a democracy and the importance of its independence can never be over-emphasised.
In the past few months, it has become apparent that President Emmerson Mnangagwa’s government prefers a pliant judiciary.
It would be a travesty of judiciary and a betrayal to millions of Zimbabweans if the judges capitulate and become appendages of the executive.