Of disrespected legal concepts and principles
By Jabulani Gwapedza
There are a number of legal concepts and principles which are not respected in Zimbabwe. The concept of separation of powers which gives rise to the independence of the judiciary and the rule of law are not respectably followed by the politicians and precisely the government and ruling party that is ZANU PF in Zimbabwe.
The doctrine of separation of powers is a political doctrine originating in the writings of Montesquieu in The spirit of the laws where he urged for a constitutional government with three separate branches of government that is the Executive, the Legislature and the Judiciary. Each of the three branches would have defined abilities to check the powers of the others.
This doctrine is usually attributed to the French philosopher Montesquieu, but it must be traced back to the English philosopher, John Locke and to as far back as Aristotle. In his book on government, Locke wrote in the 1690s as follows: “it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to also have in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make and suit both in its making and execution to their own private advantage.” The doctrine is aimed at avoiding dictatorship.
It is from this doctrine that the concept of independence of the judiciary is born. According to the United Nations basic principles on the independence of the Judiciary and the United Nations Special Rapporteur on the independence of Judges, the bench is sacrosanct and its well-considered decisions though contestable by professional legal means, should not be subject to any outside influence which includes the influence of the Executive. Thus there is need to respect the independence of the judiciary has to be emphasised particularly the orders which courts impose which have political impact.
Independence of the judiciary also brings into reality the principle of rule of law. The principle states that law should govern a nation as opposed to being governed by arbitrary decisions of the individual government officials. It primarily refers to the influence and authority of law within the society, particularly as a constraint upon behaviour, including the behaviour of government official or those closely related to them. Thus with the influence of the Executive in the operation of the Judiciary society can be chaos.
The independence of the Judiciary was compromised during the hostile ZANU PF land grabbing which was legitimised by the government. Gubbay CJ as then he was had ordered that the fast track land reform was not in the confines of the definition of the word “programme” and that the Commissioner of Police to ensure the eviction of peasantry who had taken possession of the white owned farms. The Commissioner pleaded insufficiency of manpower and that he had superior orders. The order of the court was thus not obeyed as supposed under rule of law.
The government also sacked the then Chief Justice Anthony Gubbay despite the Constitutional provisions that a Chief Justice can only be removed aft6er an independent tribunal has been convened to investigate charges of misconduct. Gubbay had infuriated the government by striking down the “fast track” land seizures. The then minister of Agriculture Joseph Made said, “his judgements are biased against the blacks. He sides with the white farmers and ignores facts.
The country has no Chief Justice, the position is vacant.” This is when the government sought to appoint someone who had the same political spirit and had been strongly against Smith regime. The government thus imposed Gofrey Chidyausiku to fight their wars in the courts. Chidyausiku is well known in deciding the land disputes politically as he was strongly of the view that the land question was to be solved politically.
Not long back the High Court gave a ruling that the ban by the government was not in line with the law. Banning the demonstrations would violet the right to demonstrate as provided by section 59 of the constitution. This infuriated the president who accused the High court judges of being reckless in allowing the anti-government protests.
Mugabe said, “our courts, our justice system, our judges should be the ones who understand even better than ordinary citizens. The dare not be negligent in their decisions when requests are made by people who want to demonstrate.” The president by the fact that he forms part of the executive should not interfere with the work and decisions of the judiciary and its decisions.
Of late the first lady was ordered by the Harare High Court judge, Clement Phiri to vacate the premises of the Lebanese Jamal Ahmed. The order was not complied with and the deputy sheriff’s office could not serve the First lady with the eviction order due to the presence of soldiers. Clearly it is evident that the royal blood is not affected by the rule of law.