By Desmond Chingarande
The Constitutional Court has dismissed an application by top human rights lawyer, Musa Kika in which he was seeking recusal of judges from hearing a case that is set to legalize former chief Justice Luke Malaba’s extension of office.
Kika’s application followed a challenge by an activist Marx Mupungu who is pushing for former chief justice’s more time in office.
Kika, who is the Human Rights NGO Forum executive director had filed a fresh application seeking the recusal of judges who set to preside over a case where Mupungu wants the Constitutional Court to overturn a High Court ruling on Malaba’s continued stay in office.
The Constitutional Court bench, chaired by Deputy Chief Justice Elizabeth Gwaunza dismissed the application saying the reasons for dismissal will be in the full judgement to be made available at a later stage.
Advocate Thembinkosi Magwaliba who is representing the judges after they were cited as respondents said the application was dismissed and reasons will be supplied later in the full judgement.
Professor Lovemore Madhuku, representing Mupunga said the main matter brought to court by Mupungu will now be heard this Friday.
Madhuku said the court will now deal with merits on the main application.
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In May this year, President Emmerson Mnangagwa extended Malaba’s term for five years relying on a constitutional amendment bill that extended the retirement age for judges to 75.
However, the matter was successfully challenged by Kika as well as the young lawyers and war veteran, Frederick Mutanda.
Three High Court judges, Justices Happias Zhou, Edith Mushore and Jester Charewa ruled that Malaba ceased to be chief justice after attaining the age of 70, which was the retirement age for judges prior to the constitutional amendments.
Mupungu then approached the ConCourt challenging the High Court ruling, arguing that Mnangagwa acted constitutionally.
Kika had cited 18 judges in his latest application seeking their recusal from presiding over the matter.
The same judges were also cited as respondents in his first application in which he challenged the extension of Malaba’s tenure.
In his application, Kika argued that the High Court ruling handed down on May 15, 2021 by a three-member panel affected the same judges who were set to make a determination on Mupungu’s application at the ConCourt.
He had also sought a relief that in the event that Malaba, cited as the first respondent in the matter, was confirmed to hold the office of chief justice, he too had to recuse himself from hearing the matter in Mupungu’s case CCZ13/21.
The matter drew a widespread condemnation after Justice Minister Ziyambi Ziyambi alleged that there was foreign interference on the country’s judiciary after the nullification of Mnangangwa’s extension on Malaba’s term of office.
