HARARE – Chief Justice Luke Malaba and Judge President George Chiweshe are on a collision course after being dragged into Vice President Constantino Chiwenga’s messy divorce from his wife, Marry Mubaiwa.
Chiwenga was last week ordered by the High Court – which Chiweshe supervises – to surrender three minor children he unlawfully took from his estranged wife after causing her arrest on allegations that she tried to kill him last July.
The vice president immediately appealed, but in an extraordinary step, the appeal has been expedited, allegedly on the orders of Malaba.
Mubaiwa’s lawyers have been invited to inspect the record of appeal, just days after the notice of appeal was filed.
“It takes all other mortals no less than five months to be in this position,” a lawyer following the case said.
“Malaba has taken the position that he is going to set the appeal down on an urgent basis, not withstanding that no application for an urgent hearing has been made. He will preside over the appeal with handpicked judges.”
Chiwenga’s lawyers have, meanwhile, written to Justice Chiweshe accusing him of interfering in the matter in order to favour Mubaiwa.
The lawyers claim that last week’s damning judgment by Justice Christopher Dube Banda, who accused Chiwenga of being a danger to the constitutional order, was leaked to a newspaper even before it had been delivered.
“Our client advises us that you are related to the applicant Ms Marry Mubaiwa and she has made numerous bald assertions in public that you are related and have sorted and influenced all matters involving her in her favour to the prejudice of our client,” Chiwenga’s lawyer, Wilson Manase, wrote to Justice Chiweshe.
“We, with respect, wish to register our client’s concern over allegations emanating from the said relationship with the applicant and complain over the conduct of the applicant in accessing court judgments and orders before they have been officially handed down to both litigants.
“These allegations are known by the Judicial Service Commission (JSC), the lawyers for the applicant and various other parties which we can divulge to you in confidence.”
Chiwenga’s lawyers said on January 24, hours before the judgment was delivered, Mubaiwa had arrived at Hellenic Primary School in Harare where two of the couple’s children attend school armed with an order of the High Court granting her access to the children.
“Our client telephoned us to inquire as to whether judgment had been handed down in the matter to which we confirmed that the matter was still pending and a diligent enquiry at the registry confirmed our position,” Chiwenga’s lawyers further complained.
“We were then telephoned by the Honourable Justice Dube Banda’s clerk at 0927AM advising us that the Honourable judge wished to meet parties in chambers to hand down the judgment.
“Could it be that there is a new system of handing down judgments wherein litigants are given court orders before official pronouncements? We also wonder why the said judgment, before it was handed down, got publicised in The Zimbabwe Independent newspaper advising the public that Marry Mubaiwa had won the case she had filed.”
The edition of the Zimbabwe Independent newspaper Chiwenga’s lawyers complained about carried a story in which sources told the paper that Chiwenga had reached an out-of-court settlement with Mubaiwa which would see him surrender custody of the children back to Mubaiwa, but it did not refer to a court judgment.
Chiwenga’s lawyers want Justice Chiweshe to respond to their concerns within 48 hours. They insist that the vice president is convinced that the High Court systems “may have been compromised.”
Sources told ZimLive that Chiwenga’s lawyers have briefed several people that they were advised that Justice Dube Banda’s judgment had been co-authored with two other judges, he believes in a conspiracy to discredit him.
“Malaba has taken Chiwenga’s side in the ongoing political contestation between the vice president and Mnangagwa. He is incensed by the judgement which he thinks was engineered by Mnangagwa, using Justice Chiweshe,” the lawyer added.
Justice Dube Banda, in his judgment, found that Chiwenga considered himself to be above the law and was abusing his position as vice president by using the military in his divorce proceedings.
The judge said Chiwenga’s decision to grab the three children, lock Mubaiwa out of their properties and deny her access to vehicles – all without a court order – was “particularly objectionable as he has taken an oath to uphold the laws of Zimbabwe”.
“In fact, it is unacceptable and anathema to the constitutional values of this jurisdiction that the military may be used to settle a matrimonial dispute. This is frightening and undermines the values inherent in our constitution which are the rule of law, supremacy of the Constitution, gender equality, fundamental human rights and freedoms and good governance. What happened to the applicant (Mubaiwa) must be cause of fear and concern to all law-abiding citizens wherever they are and their station in life,” Justice Dube Banda added.
TOP PIC: Interference … Vice President Chiwenga’s lawyers have accused Judge President Chiweshe of influencing the High Court to rule in favour of Marry Mubaiwa (ALEXANDER JOE/AFP/Getty Images)