Chief Justice Luke Malaba is back at work following the noting of appeal by the Government challenging the High Court decision nullifying the extension of his tenure.
Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi and Attorney General Advocate Prince Machaya last week separately filed their notices of appeal against an urgent High Court judgment made on May 15.
They are challenging the High Court decision to annul the extension of Justice Malaba’s service beyond the age of 70 on the grounds that the recent Constitutional Amendment allowing judges, including the Chief Justice, the option of serving to 75 could not include sitting judges of the Constitutional and Supreme Courts but did include sitting judges of the High Court.
The noting of an appeal to the Supreme Court effectively suspends the order of the High Court paving way for Chief Justice Malaba to be back in the revered judicial office by operation of law.
This also means that Deputy Chief Justice Elizabeth Gwaunza who had assumed the position of acting Chief Justice reverts to her position as Chief Justice Malaba’s deputy.
In an interview yesterday, Judicial Service Commission Secretary Mr Walter Chikwanha confirmed that Chief Justice Malaba was back at work and executing his judicial functions.
“Chief Justice Malaba has always been at work since the day the Government filed a notice of appeal against the decision of the High Court,” he said.
“It’s by operation of the law. Once the appeal was filed the order of the High Court was in effect suspended until the determination of the appeal.”
On May 15, High Court judges — Justices Happias Zhou, Edith Mushore and Jester Charewa blocked the Government move to extend Justice Malaba’s tenure by five years as allowed by Constitutional Amendment Act Number 2.
In terms of that Act, the retirement age for all judges is now 70 but every judge has the option to serve until the age of 75 so long as they are mentally and physically fit to do so and exercise that option before their 70th birthday.
This the Chief Justice did and with his medical certificate has his term extended.
The three High Court judges ruled that the Chief Justice ceased to be the Chief Justice upon
reaching 70 years on Saturday and that the option of an extension of service did not apply to incumbent judges of the Constitutional Court and the Supreme Court.
However, Minister Ziyambi and Adv Machaya want the judgment of the High Court set aside.
Chief Justice Malaba attained the age of 70 on Saturday, but as the now amended section of the Constitution allows, he exercised his option before his birthday to continue until 75 and submitted the required medical certificate that he was in good mental and physical health.
The Judicial Service Commission has since announced that Deputy Chief Justice Elizabeth Gwaunza is now the acting Chief Justice, pending the outcome of the appeal.