Malaba era politicised the courts, experts say

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 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.