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
of Chief
Justice
Luke
Malaba,
who
is
set
to
retire
in
May
this
year after
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.
Human
rights
lawyer.
Doug
Coltart,
said
Malaba’s
legacy
was
deeply
conflicted,
marked
by
early
judicial
courage
but
later
overshadowed
by
decisions
and
administrative
conduct
that
weakened
constitutional
principles.
“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
the Mudzuru
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.
“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.
“He
knew
the
law.
What
happened
was
not
out
of
ignorance,”
Kika
said.
Kika
said
the
Malaba
era
demonstrated
that
courts
are
not
neutral
spaces,
but
are
vulnerable
to
political
agendas
and
manipulation.
“We
learn
that
the
law
and
the
courts
are
not
innocent
of
politics,”
he
said.
“Much
of
the
misgovernance
and
misrule
we
have
seen
in
Zimbabwe
has
been
enabled
and
facilitated
by
the
courts.”
He
said
judges
showed
selective
independence,
delivering
sound
rulings
in
“softer”
cases
while
ruling
politically
in
constitutional,
electoral
and
human
rights
matters.
“You
could
see
that
political
and
human
rights
cases
were
ruled
on
in
a
political
manner,
while
other
cases
received
good
judgments.
That
is
not
how
the
rule
of
law
works,”
Kika
said.
According
to
Kika,
this
pattern
amounted
to
selective
constitutional
avoidance,
where
courts
relied
on
technicalities
to
avoid
making
substantive
rulings
on
politically
sensitive
issues.
“This
has
normalised
an
abnormal
situation,
where
technicalities
trump
substance,
despite
the
Constitution
expressly
saying
they
should
not,”
he
said.
Kika
said
Zimbabwe
experienced
lawfare
during
Malaba’s
tenure,
the
use
of
the
legal
system
to
fight
political
battles.
“The
judiciary
has
been
used
to
capture
Parliament,
dismantle
political
opponents
and
legitimise
executive
power,”
he
said.
He
borrowed
a
metaphor
from
a
Nigerian
human
rights
lawyer
to
describe
the
period.
“Some
rulers
are
drunk
on
power,
and
some
judges
have
handed
them
the
bottle,”
Kika
said.
“When
one
reflects
on
this
tenure,
that
description
fits
uncomfortably
well.”
He
cited
several
incidents
that
raised
concerns
about
judicial
independence,
including
a
2020
practice
directive
requiring
judges
to
submit
judgments
to
heads
of
courts
for
approval,
which
was
only
withdrawn
after
public
outcry,
and
a
2025
proposal
to
send
judges
to
the
Chitepo
School
of
Ideology,
which
was
also
reversed
following
backlash.
Kika
also
criticised
the Liberal
Democrats
v
President
of
Zimbabwe ruling,
delivered
by
Malaba
after
the
2017
military
coup,
in
which
the
court
held
that
former
president
Robert
Mugabe
had
resigned
voluntarily.
“That
judgment
effectively
legitimised
the
coup
and
reflects
dubious
jurisprudence
common
in
jurisdictions
where
courts
bend
to
executive
whims,”
he
said.
Legal
practitioner
and
political
analyst,
Dr
Vusumuzi
Sibanda,
offered
a
harsher
assessment,
saying
Malaba’s
tenure
had
left
lasting
institutional
damage.
“I
am
not
even
willing
to
acknowledge
what
he
did
right,”
Sibanda
said.
Sibanda
said
he
was
personally
affected
by
the
Liberal
Democrats
case,
having
been
the
applicant.
“To
have
costs
awarded
on
a
matter
that
was
clandestinely
withdrawn,
and
then
be
told
nothing
can
be
done,
that
leaves
scars,”
he
said.
He
argued
that
presiding
over
a
judiciary
that
fails
to
uphold
the
Constitution
raises
fundamental
ethical
questions.
“If
you
perpetuate
suffering
through
the
system
you
lead,
there
is
nothing
ethical
about
that,”
Sibanda
said.
He
questioned
whether
Malaba
met
the
‘fit
and
proper’
test
for
judicial
leadership,
particularly
in
light
of
the
term
extension.
“This
will
be
debated
for
years:
was
Malaba
ever
fit
and
proper
to
be
Chief
Justice?”
he
said.
Sibanda
accused
the
judiciary
under
Malaba
of
rubber-stamping
Executive
decisions,
rather
than
acting
as
a
check
on
state
power.
“The
judiciary
is
supposed
to
reduce
the
ability
of
the
executive
to
abuse
authority,
not
assist
it,”
he
said.
“For
me,
Malaba’s
tenure
has
been
a
nightmare.”
Sibanda
said
Malaba’s
tenure
offers
critical
lessons
for
the
future
of
Zimbabwe’s
judiciary,
particularly
the
importance
of
individual
judicial
independence,
transparency
and
timely
exit
from
power,
warning
that
without
structural
and
cultural
reforms,
courts
risk
continuing
to
serve
political
interests
rather
than
constitutionalism,
further
eroding
public
trust
in
the
justice
system.