Will Luke Malaba bounce back?

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By Brighton Mutebuka

1. The Zim legal community is currently seized with the above matter and trying to brainstorm and come to an agreement pertaining to what the full ramifications of the High Court Judgment are.

2. Consensus is proving to be elusive on the subject matter as the scale of the legal challenges that we are dealing with are, put simply, unprecedented.

3. Legal heavyweights have made pronouncements on the matter, including my celebrated brother Lewis Uriri, and even they are totally confounded.

4. At the centre of the confusion is this, S175(1) of Zim’s Constitution directs that where a Court makes an order concerning Constitutional invalidity – including the conduct of a President & Parliament, as in this case, the order has no force or effect unless it is confirmed by the Constitutional Court.

5. S175(2) makes provision for any such Court which makes such an order made under S175(1), to have the power to do so on a discretionary basis, as the word used is “may”, and that this be of a temporary nature, pending confirmation of that decision at the Constitutional Court.

6. The first question to ask is, what is the nature of the decision that was made by the High Court and what is its effect? The answer is that it is a Declaratur / Declaratory Order. Its effect is to render the purported extension of Malaba’s term by ED invalid / unlawful by virtue of being ultra vires S328 of the Constitution.

7. What is the effect of S175(1) in all this? We have already seen that the JSC has moved to confirm Deputy Chief Justice Gwaunza as the Acting Chief Justice, which amounts to compliance with the decision and so the decision has already had a chilling effect on Malaba’s continued tenure.

8. The reality is that, in my view, it is no longer politically & legally tenable for Malaba to return as the Chief Justice prior to the appeal being heard and decided before the Constitutional Court, notwithstanding what S175(1) requires re: seeking confirmation.

9. I will also say this, (and I stand to be corrected), I am unaware of any reason why a view cannot be formed that the High Court’s order was effectively one that engaged “Constitutional Invalidity” under S175(1) in its effect.

10. As S175(2) grants discretionary power for a Temporary Interdict or other such relief to be granted, it follows that the failure to seek such an enforcement tool by the Applicants or by the Court Mero Mutu (on its own accord) is not fatal, albeit it would have been helpful to do so.

11. The fact that the power in question is discretionary suggests that perhaps the overriding view is that it would be rare to encounter instances in which such a declaration can be made by a Court with inherent / original jurisdiction such as the High Court in a Constitutional democracy (the underlying assumption being that Zimbabwe is one – at least in theory) & be defied.

12. I posit that it is simply unthinkable for ED, Malaba & Ziyambi to countenance openly defying / disregarding that Order without such conduct being underpinned by a decision issued by a superior court. They simply would not dare! Even authoritarian regimes sometimes have to bow down to the overbearing weight of a combination of Legal Orders, political and moral force.

13. To the extent that my brother Lewis Uriri appears to be exhorting them to do so, then I respectfully disagree with him. I am of the view that the correct process at this stage is to pursue their appeal via the Constitutional Court route. I pause here briefly to explore another dimension to this case pertaining to the procedure to be used in appointing the Constitutional Court Judges that would have to hear such an appeal as well as to whom the onus is on to seek confirmation of the High Court’s decision.

14. This is where it does get interesting and where there has virtually been no viable / concrete solutions suggested. As things stand, all current Supreme Court & Constitutional Judges bar the Judge President, Justice Chiweshe, who has sometimes sat in the Supreme Court are barred by virtue of being cited as Respondents on account of having a conflict of interest in the proceedings.

15. In my view, any further appointments to both offices would also likewise fail on account of the same reasons. I am unable to speculate on why the Judge President was also not cited as a Respondent. The only credible reason that I can muster is perhaps that of Administrative purposes in relation to the running of the case.

16. I stand to be corrected, but my assessment is that at present there is simply no established / credible legal mechanism through which Ziyambi, Malaba & ED’s appeal can be subjected to due process, leaving them in limbo.

17. It means that there is a lacuna / gap in the law in Zimbabwe’s legal system which needs to be urgently addressed. Short of that, the purported appeal in question will simply be stuck in limbo like a spacecraft lost in space.

18. It cannot be over-emphasised how impressive and cunning the legal and political strategy behind this litigation is on the part of the Applicants. It unleashes a legal and political logjam / tsunami / imbroglio of epic proportions, which in my view is likely to leave the proposed Appellants tied in knots.

In my view, for now the Applicants do not have to worry about seeking an enforcement measure. The Order enforces itself, and bear in mind there is more litigation on the way!

Caveat – this opinion is by no means authoritative on what is clearly a complex & unfolding matter. I am willing to be persuaded otherwise if the evidence and the reasoning presented demands otherwise.

Brighton Mutebuka is a Zimbabwean Lawyer and Solicitor based in the UK. He runs Mutebuka & Co Immigration Lawyers and is an alumni of the University of Zimbabwe and Leeds University’s School of Law. He writes in his personal capacity.