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Myth of judicial independence in Zimbabwe

By Andrew Kunambura

Perhaps, not many statements have undermined the country’s standing on the global stage in terms of the rule of law as much as the ZANU-PF government’s comments in 2002 that it would defy court judgments that it does not like.

File picture of judges during a procession in the capital Harare
File picture of judges during a procession in the capital Harare

These sentiments were made in July 2002 after the then justice, legal and parliamentary affairs minister, Patrick Chinamasa, had been found guilty on two counts of contempt of court relating to his criticism of a court verdict and failure to file legal papers in respect of an arrest warrant issued against him by former High Court judge, Justice Fergus Blackie.

This marked the height of a protracted dispute between government and the judiciary, which intensified after the courts condemned the invasion of white-owned farms by ZANU-PF supporters led by frustrated veterans of the 1970s war of liberation.

“We will respect judges where the judgments are true judgments,” said ZANU-PF leader, President Robert Mugabe, back then, describing Blackie as “a judge who sits alone in his house, and says: ‘This one is guilty of contempt’, that judgment should never be obeyed”.
Jonathan Moyo, the then minister of information, followed that up with blunt criticism of the judge.

“There is no doubt that fair-minded and law abiding citizens will see this judgment for what it is: Outrageous, sinister, highly personalised crusade made by someone who should be packing his bags,” he said.

Soon after, Blackie was arrested on corruption allegations and then subsequently lost his job.
The then Chief Justice, Anthony Gubbay, was also forced into early retirement and some judges left the bench.

Gubbay was replaced by Godfrey Chidyausiku, whose imminent retirement has, once again, brought to the fore the ill-omened question of whether or not the judicial system in Zimbabwe is truly independent from political interference.

Ever since those incidents, the question of judicial independence in the country and respect for the Constitution by powerful ZANU-PF individuals, the ruling party itself and government at large, has persisted.

Things have not been helped either by the interference of ZANU-PF in legal issues involving opposition political parties, particularly the Movement for Democratic Change (MDC-T) led by Morgan Tsvangirai, which accuses the courts of perpetually and deliberately passing judgments skewed in favour of the ruling party.

A case in point was the MDC-T’s court challenge in which the opposition party disputed the results of the 2002 presidential election, which it argued was rigged in favour of ZANU-PF.

The challenge was in terms of section 89 of the Constitution, which provides that “any aggrieved candidate may challenge the validity of an election of a president or vice president by lodging a petition or application with the Constitutional Court”.

Some 15 years later, the case is yet to be concluded.

In between, there have been two equally hotly contested general elections.

Presently, there is a huge debate in the legal fraternity and academia over Chidyausiku’s succession amid reports that rival ZANU-PF camps are fighting hard to influence the process and have a say on who becomes the next Chief Justice.

This fervent interest, says analysts, exposes the mere fact that ZANU-PF has no respect for and will always seek to undermine the judiciary and trample on the Constitution willy nilly.

The process of replacing Chidyausiku has surprisingly become a battleground for ZANU-PF factional fights as reports suggest that the Team Lacoste faction, which is campaigning to have Vice President Emmerson Mnangagwa succeed President Mugabe prefers a particular candidate and procedure of selecting the candidate from that of its rival, Generation 40, or G40 faction.

The camps are brawling over a controversial amendment to section 80 of the Constitution, which seeks to allow the President to handpick a Chief Justice as opposed to the current provision whereby the President only appoints after candidates go through public interviews presided over by the Judicial Service Commission (JSC).

Mnangagwa’s backers have thrown their full weight behind the amendment, while the rival G40 faction wants the process to be done in terms of the existing constitutional provision.

Legal and constitutional experts are wary of the intentions of political meddling in the judiciary, which they say casts a dark cloud on efforts to preserve constitutionalism and the rule of law.

Government’s apparent appetite to amend the Constitution for selfish and political reasons has also been strongly questioned.

By the time the new Constitution was brought about in June 2013, the compromise Lancaster House Constitution of 1979 had been amended more than 20 times, mainly for political expediency.

Most notable is the 2000 change which paved the way for government to seize white-owned farms.

Whenever the ZANU-PF government comes face to face with a stumbling constitutional provision, it is the national charter that suffers, notwithstanding that the second section of the Constitution declares that: “This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of its inconsistency?”

How then does government, whenever it finds out that its preferred conduct is inconsistent with the Constitution, instead of conforming, it alters the very charter to validate that conduct?

What is also frustrating to many is the fact that government is normally unmoved on issues of economic nature, but quickly jolts into action when aspects that threaten the party’s hold on power emerge.

It boggles the mind that the same government which has been so painstakingly slow to align several laws with the 2013 Constitution suddenly finds itself in a great hurry to effect the amendment.

Such a situation is placing the judiciary under unnecessary pressure, while the machinations involved threaten its independence.

“The traditional defence of judicial independence rests on a judgment that the court’s distinctiveness and institutional weakness is important to defend because of the special functions it provides for our legal and political order. If judges work too closely with elected officials, they risk succumbing to their influence,” said a top Harare lawyer who declined to be identified for professional reasons.

University of Zimbabwe constitutional law lecturer, Greg Linnington, echoed the sentiments.

In reference to the proposed amendment of section 180 he said: “This is bad news for the independence of the judiciary. Much power is being given to the Executive, which is precisely what this Constitution set to correct by limiting Executive powers. The problem with political interference is that judges are more likely to be more sympathetic to the Executive and I think that is a great concern.”

Another constitutional law expert, Lovemore Madhuku, said: “There has been political interference from the beginning. If you look at subsection two of 180, you realise that the JSC invites the President along with the public to nominate potential candidates for the post of Chief Justice and then he has power to even reject all of them and order the process to be redone altogether until his preferred candidate emerges. Remember he also nominates. In the amendment, he is being given power to even appoint someone, who would have not undergone the public interview process altogether.”

Madhuku, who, some years back, transformed a labour movement lobby group, the National Constitutional Assembly (NCA) into a political party, added: “The amendment is just laying open what is being said by the Constitution and that has been the Zimbabwean disease. It’s like two congregants who belong to a church which does not permit beer drinking, but they both drink. One drinks openly, while the other tries to hide it, but the bottom line is that they both drink. So in this case, Team Lacoste is like the open drinker who is saying to his fellow congregant (G40): ‘Let’s just drink openly, there is no need to hide.’ They are simply removing the thin veil off section 180. That is why we have always said this Constitution is nonsensical.”

Madhuku’s NCA outfit encouraged a NO vote in the 2013 Constitutional referendum, but lost.
Legal and parliamentary watchdog, Veritas, also said the amendment was influenced by political considerations rather than a desire to uphold the law.

“The system laid down by the Constitution gives far more balance between the three arms of the State,” mourned Veritas on its website.

The Law Society of Zimbabwe (LSZ) which is a critical component of the judiciary as it represents and regulates legal practitioners in the country, has also expressed disappointment over the issue.

LSZ president, Vimbai Nyemba said: “The LSZ is generally dismayed by the attitude of government towards the Constitution. The swiftness to introduce a constitutional amendment Bill this early in the lifespan of the Constitution is cause for concern. The spectre of amendments should not revisit the nation so soon after it overwhelmingly voted for a new Constitution, which consigned the patched up Lancaster House Constitution to the dustbins of history.”

As the debate rages on, it is increasing becoming evident that judicial independence might just be a myth. The Chronicle

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