When brilliance bends to power: the Luke Malaba paradox

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