Zimbabwe’s courts are not innocent bystanders in the country’s political and governance crises but have, at key moments, enabled misrule, political manipulation and the judicialisation of politics, leading legal experts have argued. The observations were made during a CITE X Space discussion held on Friday titled “The Future of Zimbabwe’s Judiciary: Lessons from the Malaba Era”, as legal practitioners reflected on the tenure ofChief Justice Luke Malaba, who is set to retire in May this yearafter his term was controversially extended. These legal minds said Malaba’s time at the helm of the judiciary revealed how courts can become instruments of political power through selective application of the law, constitutional avoidance and lawfare, undermining the rule of law.
“If we look back at Malaba’s tenure, not just as Chief Justice but as a judge, we see someone with real intellect who understood the law,” Coltart said. He cited landmark judgments such as theMudzuru ruling, which ended child marriage and was widely praised internationally, as well as Malaba’s dissenting opinion in the Jealousy Mawarire case, where he stood against the majority and defended constitutionalism by opposing an early election in 2013. “That dissent showed courage and independence,” Coltart said.
However, he said the controversial extension of Malaba’s tenure as Chief Justice fundamentally undermined those achievements. “I am partly pained that his legacy will be defined by the extension, which violated core constitutional principles, particularly that incumbents should not benefit from changes to tenure,” he said. Coltart said Malaba risked being remembered not for his jurisprudence, but for refusing to leave office when his term ended, a fate that befell none of his respected regional peers.
[paywall]
“South African judges like Pius Langa knew when it was time to go, and they went. The fact that we are still debating Malaba’s retirement even after announcements were made tells you something has gone wrong,” he said. Constitutional lawyer, Dr Musa Kika, said Malaba’s rise through the judicial ranks meant his later conduct could not be blamed on ignorance of the law.
[/paywall]
