Madhuku takes fire after filing ConCourt application defending Malaba, Mnangagwa

Madhuku takes fire after filing ConCourt application defending Malaba, Mnangagwa

Constitutional lawyer Professor Lovemore Madhuku drew fire on Sunday after taking up a case that seeks to nullify the High Court ruling that ended Luke Malaba’s tenure as Zimbabwe’s Chief Justice before bouncing back under fiercely contested circumstances.

Madhuku filed a Constitutional Court challenge on behalf of a little-known Zanu PF activist Marx Mapungu on Friday arguing that President Emmerson Mnangagwa acted appropriately and constitutionally by extending Malaba’s term of office following controversial constitutional amendments.

The High Court ruled on May 15 that Malaba had ceased being a judge and Chief Justice after reaching the retirement age of 70 and that Mnangagwa had violated the law by giving him five more years.

In his application, Madhuku’s client says he is “seeking an order varying or not confirming an order of constitutional invalidity made by the High Court of Zimbabwe in Judgement no HH264/21 handed down on May 15, 2021 by a three-member panel.”

“I believe the President of Zimbabwe acted constitutionally when he accepted the medical report on the mental and physical fitness of the Honourable Justice Luke Malaba.”

He adds: “In so doing, the president was approving the honourable justice’s election to continue in office as chief justice for an additional five years.

“As a citizen, I believe the chief justice is in office in accordance with the constitution following the aforesaid acceptance by the president of the aforesaid medical report.”

Madhuku, after taking flak on Twitter including from Professor Jonathan Moyo, with whom he bantered extensively, defended fighting in Malaba and Mnangagwa’s corner reasoning that as an attorney, he had a mandate to represent all clients without discrimination, even those whose political views were not in lockstep with his.

The back-and-forth started with Moyo commenting: “This is a Prof. Madhuku-led application to rescue both Malaba and Constitution of Zimbabwe Amendment No. 2. Interesting times!”

Madhuku shot back: “All my clients are Zimbabweans enjoying to the full, the constitutional right to be represented by a lawyer of their choice.”

Not backing down, Moyo charged: “The principle you espouse here Prof. Madhuku is indeed sound; but no one needs an inner legal eye to understand that the reality on the ground is that, just like busses in Africa wait for passengers, agenda-pursuing lawyers in Zimbabwe shop for litigants: it’s the Zibani strategy!”

And Madhuku retorted: “Agenda-pursuing lawyers! I understand what you mean. When I took instructions in this matter I was very much alive to it but I have never taken, and will never take, it into account. I am only humbled by the fact that some clients prefer me in politically sensitive matters.”

In a later interview with ZimLive, Madhuku said he was simply representing his client even though he did not agree with his political views, adding, “That is what I’m trying to put across when responding to Jonathan. He is saying maybe lawyers look for clients but we never do that.”

He concluded: “Why would I look for clients, I have no personal relationship with anything, my personal political views are actually the opposite of what my client wants but this is not about my politics, it’s my professional work. You go to court on the basis of the law as it is. The law is not politics.”

Madhuku, who teaches constitutional law at the University of Zimbabwe and leads the opposition National Constitutional Assembly (NCA) political party, is on record criticizing Constitution of Zimbabwe Amendment (No. 2) Act, which made Malaba’s stay possible, hence the outrage over his defence of Mnangagwa and the embattled Chief Justice.

He has also warned that Mnangagwa appears more power-hungry than his predecessor Robert Mugabe, who died in 2019 following his forced removal from power by Mnangagwa in November 2017 military coup. – ZimLive

1 Comment

  1. Chief Justice Mala’s case compromised by Politics(partisan/partisanship) ,vengeance ,and Tribalism.(analysis).Comment by Njabulo libertyatliberty at gmail dot com.
    First of all l would like to declare that l am writing this article of analysing the case of Chief Justice Malaba ,as a neutral. I am not partisan to any political party ,neither am l taking side with anyone in this quagmire issue. So,let no one criticise me for what l am going to write hereunder .I am also not going to discuss this case inline with what is embodied in law. But,l will only discuss it in general terms. Well we all know that by virtue of his position ,as the President of Zimbabwe,the incumbent President has the prerogative (derived from the Constitution)to appoint judges (who underwent the public interviews eg Constitutional Court Judges) .Again ,he also has the prerogative (derived from the Constitution),to appoint the Chief Justice. Secondly,the Constitution of any state/country ,is the Supreme law of the country/state. Although ,as things stand,the Constitution of Zimbabwe was amended,that means,any addendum or amendments made,having been approved by Parliament(inline with law),that means that which has been amended is binding to all citizens and everyone (with effect from that date).Having mentioned that,the President extended the contract of the Chief Justice,using the amended Constitution(legal). That amended Constitution is the Supreme law of Zimbabwe. True,all citizens of Zimbabwe have the right to defend the Constitution of Zimbabwe,and to ensure that it is not violated in anyway. However,the judgement made by the High Court to cancel that appointment,in my view,is on its own unconstitutional .The reason being that the President derived that authority to appoint or extend the contract of Chief Justice Malaba ,using the new law (amended )embodied in the Constitution .Now the issue in contention,is whether the High Court Judges had the jurisdiction to make that declaration which they made,which cancelled or declared that extension of contract ,as null and void?. Or whether that was a matter to be challenged in the Constitutional Court ?.Thus because the law used to appoint or extend the contract of CJ Malaba was taken from the Constitution . My intuition ,tells me that that declaration ,will be set aside by the appointed judges to adjudicate on that case .There are also other crucial issues that seem to have been omitted in dealing with that case or were deliberately ignored. Thus because when dealing with a case ,a number of legal steps must be fulfilled or followed ,so that the judgement in question can be taken as binding( in the eyes of the law).As the President has the prerogative to appoint and extend the contract of the Chief Justice,that on its own is sufficient,to make that appointment legal and also binding to all. More so,because that authority derives from the Supreme law of the country/state,means that the Constitutional Court would have been the more appropriate court to declare that that the reappointment or extension of contract of Chief Justice Malaba ,was null and void or was contrary to any section of the Constitution .So,in that manner that case was rather a Constitutional Court case,as the matter involved an appointment using the Constitution or authority derived from the Constitution. The legislation in the Constitution ,was not legislated retrospectively . When it is legislated retrospectively or retroactive ,it means that that the new law was with consideration of the past law. Or that the appointment was made even before the new law was enacted .Statutes do not apply to the past ,but they apply to the future. Although retrospective legislation is lawful ,but in this case ,that was not the case. The reason being that when a new law is being effected,it effectively cancels the previous law,thereby making it null and void or obsolete. So,on the date when CJ Malaba’s contract of employment to that post had not yet lapsed ,a new law was effected ,meaning that the President used the new law to effect his appointment to that position even before the end of working hours of that day when his contract had not yet lapsed .That was within the ambit of the law .From the look of things ,the declaration made or cancellation made by the High Court ,was based on the obsolete section of law which limited the age to hold the position of the CJ to less than the new law prescribes .Using even the ‘postal rule’ of contract law,the contract made by the President was legal as it was made when the new amendment had come into effect .The contract was signed before the end of working hours of expiration of CJ Malaba’s previous contract.(repeat). So,that means the appointment of CJ Malaba or extension of his contract is legal in the eyes of law. That section of the Constitution which those Judges used to make that declaration is in error in its application and more so in the manner it was interpreted .And therefore ,the appointment of CJ Malaba is not in violation of any law or the Constitution of Zimbabwe .Furthermore,the High Court had no jurisdiction to hear that case nor to make such a declaration .Nevertheless,that does not mean that l am saying it was wrong for those people to instigate legal proceedings on that case,challenging his reappointment .Everyone has their right to do so. And l also have a right to give my own views concerning that case .Having mentioned the above points,the other issues of contention that have to be looked at, in this case are; politics(partisan/partisanship),act of vengeance and tribalism .
    Politics ,act of vengeance and tribalism :We all know that politics is inevitable and invincible in our lives. But we all want an independent judiciary entity in our country or an autonomous judiciary entity. We must all remember that ,we have the Executive,Legislature and the Judiciary .These are meant to separate powers of each department in every country. They are governmental bodies meant to help each body to be independent. However,other entities (Legislature and Executive ),have the right to scrutinise the Judiciary entity ,although we envisage it to be completely autonomous. Coming to the case of CJ Malaba,it appears that the whole issue has been politicised. The fact that he ruled in favour of the ruling party in case concerning the last general elections .In all honest,someone wants to make him pay for that ruling (vengeance).One would therefore regard that as an act of vengeance .Had CJ Malaba ruled in favour of the opposition party ,the state of affairs would have been different now. He is simply paying for that judgement .And looking at the lawyers involved in the challenge,they all belong to the opposition party .Therefore partisan to that political party,has made this case to lose its genuineness .Its now justice system affected by politics. Therefore that declaration by the High Court , is now deemed as driven by politics rather than a genuine cause of seeking justice. Justice means fairness. But if politics has taken over,then there is no longer justice being served(fact).I stand to be criticised by anyone identifying to any political party,but that is the truth. One would not expect any impartiality ,in a case were there is a ‘conflict of interest ‘.If ZANU PF had also put their own lawyers ,in the same manner,there was not going to be any impartiality in the adjudication of that case .I am sure every person of firm mind agrees with me here .That its all about politics in that case.The fact that there is a ‘conflict of interest’ and some of the parties that were are involved were part of CJ Malaba’s case ,to challenge the outcome of the last general elections,raises a lot of questions and eye brows .If the removal of CJ Malaba, is for the good of maintaining an independent justice system or of genuinely defending the integrity of our Constitution,then the other parties that were involved in the case of challenging the elections outcome,must not be involved in that case. From the look of things ,undue influence was used to determine the outcome of the High Court ,in CJ Malaba’s case. Tribalism .On the other hand,it looks like CJ Malaba is not wanted to hold that position,because of tribalism. He identifies to the Ndebele/Kalanga clan. As such ,there are other people that do not want any person who is a Ndebele/Kalanga to wield or hold such a position .(fact).That is why even Kembo Mohadi was driven out of his position under controversial circumstances. That mentality of tribalism in this digital age or 21 st Century ,must surely come to an end. Zimbabwe is for all people of Zimbabwe. No such discrimination must be tolerated or appreciated .For that reason,there was no genuine cause of challenging and cancelling the extension of the contract of CJ Malaba. My opinion ,is that he should be allowed to do his job and then when he reaches his age prescribed by the Constitution(amended) ,he then retires. The fear here is that the opposition fears that what happened in the last elections might happen again.(not taking sides). But getting rid of CJ Malaba ,is not the solution here. Even the one who will or who has been proposed to take over(Deputy),might rule in favour of ZANU PF .And then,are you going to remove her too?.
    This is my analysis without prejudice.Nb:not partisan to any political party
    By Njabulo libertyatliberty at gmail dot com.

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