THE Judicial Services Commission (JSC) alongside 17 Supreme and Constitutional Court judges have appealed against a recent High Court ruling ending former Chief Justice Luke Malaba’s tenure as the country’s top-most judge.
The appeal was filed Friday morning, nearly two weeks after Malaba was rendered jobless when High Court judges Happias Zhou, Esther Charehwa and Edith Mushore ruled the extension of his term beyond his 70-year retirement age was unconstitutional.
Malaba’s term dramatically ended a few hours after he turned 70 on May 15, after President Emmerson Mnangagwa hastily used the newly enacted Constitutional Amendment Number 2 Act to extend the controversial judge’s term by another five years.
JSC filed a notice to appeal soon after the judgement was delivered.
In a Supreme Court appeal, JSC said Zhou must have been recused from handling the matter.
Together with the 17 judges, JSC prayed for an order setting aside Zhou’s judgement in its entirety and that the urgent chamber application by top rights lawyer, Musa Kika which ended Malaba’s tenure, be dismissed with costs.
“The court a quo erred and misdirected itself at law in dismissing JSC application for the recusal of Zhou from the matter when there was a reasonable apprehension of bias.
“The facts due to Zhou being a recently retired Commissioner of JSC and had recently participated in the interviews to fill vacancies on the Constitutional Court bench,” wrote JSC.
JSC added, “The court a quo also misdirected itself in purporting to exercise jurisdiction in a case in which the interpretation of the matter challenged the validity of the conduct of Parliament, the Senate President and Speaker of Parliament giving immediate effect to the order granted when it is not the Constitutional Court.”
JSC argued Malaba’s appointment and extension of term had not been set aside by any competent court.
The applicants also said Mnangagwa and parliament should have been cited as respondents but were “not given that opportunity to respond”.
The matter is yet to be heard.