THE
hullabaloo
accompanying
the
retirement
of
erstwhile
Chief
Justice
of
Zimbabwe,
Luke
Malaba,
has
come
and
gone.
The
gushing
and
over-effusive
praises
remain
a
subject
of
intense
discussion
within
the
legal
profession.
Although
there
were
a
few
lawyers
who
were
prepared
to
publicly
disagree
with
the
effusive
praises,
in
private
there
are
hardly
any
lawyers
who
share
the
exaggerated
accolades
heaped
on
retired
Chief
Justice
Malaba.
So,
what
imprint
did
Luke
Malaba
leave
on
Zimbabwe’s
judicial
system
as
Chief
Justice?
Were
the
accolades
heaped
on
him
deserved,
or
were
speakers
engaging
in
Zimbabwe’s
now
familiar
praise-singing
one
minute
and
backstabbing
as
soon
as
one’s
back
is
turned,
as
we
saw
with
Robert
Mugabe?
There
can
be
no
doubt
that
Luke
Malaba
is
an
above-average
jurist.
One
only
has
to
read
his
judgments
before
he
became
Chief
Justice
to
confirm
this.
One
only
has
to
read
his
dissenting
opinion
in
Mawarire
v
Mugabe
N.O
&
Others
2012
(1)
ZLR
469
(CC)
to
confirm
his
skills
as
a
jurist
of
note.
In
that
opinion,
he
famously
refused
“to
have
wool
cast
over
the
inner
eye”
of
his
mind
and
proceeded
to
write
a
cogent
and
convincing
dissent
on
what
was
as
clear
a
political
ploy
as
is
Constitutional
Amendment
(No.3)
Bill.
His
view
was
that
he
would
have
dismissed
the
application
on
the
merits.
This
was
not
an
isolated
opinion,
as
he
had
penned
many
other
notable
judgments
during
his
tenure
as
a
judge,
both
in
the
High
Court
and
in
the
Supreme
Court.
It
was
on
the
basis
of
his
demonstrated
jurisprudential
credentials
that,
when
it
became
clear
there
was
reluctance
to
appoint
him
to
the
position
of
Chief
Justice,
despite
being
the
best
candidate
at
the
interviews,
some
of
us
approached
the
courts
questioning
the
relevance
of
the
interviews
if
the
best
candidate
would
be
overlooked.
When
he
was
ultimately
appointed,
there
were
great
expectations
of
a
new
judicial
era,
where
citizens
would
enjoy
all
the
rights
and
freedoms
overwhelmingly
approved
by
Zimbabweans
in
March
2013
when
they
voted
in
the
referendum.
Regrettably,
the
retired
Chief
Justice
dismally
failed
to
discharge
his
duties
with
the
independence,
fairness
and
impartiality
envisaged
in
the
Constitution.
Instead,
he
embarked
on
a
journey
“yekufadza
mutengi
wedoro,”
where
he
perceived
justice
as
any
result
which
favours
the
executive.
I
followed,
with
disbelief,
as
speaker
after
speaker
spoke
in
glowing
terms
about
the
retiring
Chief
Justice’s
perceived
leadership
skills
and
style,
which
put
him
on
a
pedestal
never
reached
by
any
of
his
predecessors.
As
each
speaker
spoke,
it
felt
like
I
was
at
a
funeral
listening
to
eulogies,
where
each
mourner
seeks
to
outdo
the
others
in
praise
of
the
deceased,
in
typical
“wafa
wanaka”
fashion.
Retired
Chief
Justice
Malaba
was
not
a
constitutionalist,
more
by
choice
and
design
than
by
lack
of
the
attributes
of
one.
His
dissenting
opinion
in
the
Mawarire
case
demonstrates
beyond
doubt
that
he
fully
understood
constitutionalism
and
possessed
the
required
skills
to
interpret
provisions
of
the
Constitution
and
other
laws.
He
simply
chose
not
to
use
these
attributes
because
doing
so
would
not
have
served
the
interests
of
the
appointing
authority.
He
chose
not
to
side
with
the
people.
He
chose
to
disregard
the
constitutional
imperative
for
courts
to
be
independent,
impartial
and
subject
only
to
the
dictates
of
the
Constitution,
which
demand
that
its
provisions
be
applied
without
fear,
favour
or
prejudice
in
the
protection
of
human
rights,
the
rule
of
law
and
all
other
constitutionally
guaranteed
freedoms.
The
retired
Chief
Justice
was
an
unashamed
gatekeeper
at
the
Constitutional
Court,
where
only
those
cases
he
believed
met
constitutional
muster
were
permitted
to
be
filed.
Beatrice
Mtetwa
is
a
lawyer