Malaba CJ Retirement case: Full High Court Judgment in Kika v Minister of Justice & Ors; YLAZ v JSC & Ors, HH 264-21

The  downloadable document below is the full judgment of a three-judge bench of the High Court, Harare, deciding two applications concerning the effect of the extension of the retirement age for Constitutional Court and Supreme Court judges by the Constitution of Zimbabwe Amendment (No. 2) Act, 2021 (No. 2 of 2021) in the light of section 328(7) of the Constitution.  The judges constituting the court were Justices Zhou, Charewa and Mushore.  The applicant in the first case was Musa Kika and the applicants were the Young Lawyers Association of Zimbabwe and Frederick Mutanda.  The second respondent in both cases was Chief Justice Luke Malaba.  The cases were argued on 14th May 2021 until after midnight and the court's decision was announced on the afternoon of 15th May; the full reasons for judgment became available on 27th May.

The court's  conclusion and order are set out on the last page of the judgment as follows:- 


Our conclusion is that the extension of the retirement age amounts to extension of tenure. Tenure is defined by both the fixed time and the stipulated retirement ages. In terms of s 328 (7) of the constitution, such an extension of tenure is an amendment to the Constitution.  It cannot benefit the persons who held or occupied the office at any time before the amendment.   Any extension of the length of time that persons who were judges of the Constitutional Court and Supreme Court prior to the amendment of s 186 through the Constitution of Zimbabwe Amendment (No. 2), 2021 would be a violation of the applicants' rights as protected by s 56(1) and s 69(3) of the Constitution of Zimbabwe.


In the result, we make the following order:


1.  The second respondent in HC 2128/21 who is also the second respondent in HC 2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 0400 hours.

2.  The extension of the length of time in the office of the judge beyond the age of 70 years provided for in section 186 of the constitution does not apply to the second to fourteenth and the eighteenth respondents.

3.  There shall be no order as to costs.

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