A Harare lawyer Dr Musa Kika has instructed his lawyers to take legal action including the institution of proceedings for Contempt of Court against Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi.
Ziyambi launched a scathing attack on High Court judges who ruled in favour of an application challenging the extension of Chief Justice Luke Malaba’s term of office by a further five years.
The Justice minister claimed in a statement that the High Court judges were captured after they ruled that Chief Justice Luke Malaba’s term of office ended on Friday.
He also told the media that government would appeal the ruling by Justices Happias Zhou, Helena Charewa and Edith Mushore.
Ziyambi claimed Zhou, who read the judgement, was sympathetic to the opposition because he was seconded to the bench by the late prime minister Morgan Tsvangirai during the inclusive government era.
In a statement, Ziyambi also said the judgement against Malaba was a “typical case of a night court, consisting of night judges and night lawyers”.
“With the greatest of respect, we do not agree with the decision of the court for so many reasons, we have already instructed our lawyers to file an appeal first thing on Monday,” he charged.
“We do not understand how the Honourable Justice Zhou insisted on proceeding with the matter after we sought his recusal because he is clearly conflicted.”
Kika, represented by Advocate Thabani Mpofu instructed by Cinginkosi Dube of Scanlen and Holderness, filed an urgent High Court application suing Justice minister Ziyambi Ziyambi and the entire superior court structure, including all the judges of the Supreme Court and Constitutional Court, on the matter.
In his application, Kika said it was clear that the purpose behind the amendment was to “assail judicial independence”.
Ziyambi fast-tracked the Bill in April this year in the National Assembly before Zanu PF and MDC-T senators voted for it on May 4 with Mnangagwa signing it into law three days later
Addressing the media, Mpofu said: “A letter has been written to the Registrar of the High Court, the Judge President and the Honourable justices who dealt with the matter requesting the issuance of a Citation for Contempt of Court against the Minister.”
He said that he strongly believes that Ziyambi must show cause why the High Court must not hold him to be in Contempt of Court.
Mpofu said Ziyambi’s statement after the court ruling was meant to threaten other judges who may become seized with the offshoots of this dispute.
He said Ziyambi must “remain faithful to his obligations as a Minister of the Government of Zimbabwe, a registered Legal Practitioner and a litigant.”
He added that while “an appeal can, all things being equal, be lodged against a declaratur, the position in law is that an appeal does not suspend the operation of a declaratur.”
He said the appeal cannot suspend the operation of the judgment of the High Court of May 15 which categorically stated that Luke Malaba was now the former Chief Justice of Zimbabwe.
Mpofu said the Malaba could not, for that reason, exercise any function either as the chairperson of the Judicial Service Commission or as a judicial officer, save in rendering judgments in those cases that he heard while still a judge.
He said if Malaba contests the judgment of the High Court, he can only do so in his personal capacity.
“This position comes with certain consequences for the Judicial Service Commission and in particular as regards its right to note an appeal on behalf of the retired Chief Justice,” he said.
The victory in court has buoyed lawyers who have since indicated that would now return to court to challenge the procedure used to pass the amendments by suing the National Assembly, the Senate and Mnangagwa.
The over 20 amendments to the supreme law introduced through the Constitution Amendment Act Number 2 have divided opinion with critics saying the changes have created an imperial presidency.
They gave the president powers to appoint the country’s top judges and scrapped the running mate clause for vice-president