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The rule of law in Zimbabwe
Civic Alliance for Democracy and Governance (CADEGO)
February 15, 2006

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A Politicised Judiciary
The rule of law is the heartbeat of democracy, without which democracy is dead and buried. It is the standard measure of the extent to which a government upholds constitutionality and subjects itself to the laws of the land as well as international law. It is also the protection of citizens from wide, arbitrary and discretionary powers of the executive. The rule of law reigns over government, protecting citizens against arbitrary state action and protects individual / private interests. It ensures that all citizens are treated equally and are subject to the law rather than to the whims of the powerful. Under the rule law, the law is applied indiscriminately irrespective of race, sex, religion or political persuasion.

The rule of law in Zimbabwe is in an intensive care unit for several reasons. Chief among them is the absence of an independent judiciary. An independent judiciary is a vital element of the rule of law. The bedrock of a constitutional democracy is an independent judiciary. The selection of judges must be done in a transparent, professional and ethical manner. Yet in Zimbabwe the constitution endows the President with a wide range of powers, which can ultimately undermine the rule of law. He determines the composition of the two superior courts through his constitutional powers to appoint High Court and Supreme Court judges. By reason of him being a political figure, President Mugabe appoints judges share some common political beliefs with him.

Recent utterances by High Court judges reveal that Zimbabwe's judiciary has all but surrendered its independence to the executive and the ruling ZANU PF. Officially opening the 2006 legal year in Bulawayo on Monday 6 January, Justice Maphios Cheda lashed out at lawyers involved in human rights litigation. He expressed his mistrust of legal firms that allegedly did not participate in defending the rights of ordinary people during the liberation war but were now championing the vilification of Zimbabwe for its damming human rights record

He is quoted by the Zimbabwe independent (13/01) as having said, 'it is some of these firms who are today in the forefront in singing loudly about human rights violations which they ignored during the war'. He further alleged that some of their associates chose to fight against blacks instead of denouncing the settler regime for human rights violations. He did not deny the existence of gross human rights violations in Zimbabwe but rather he attempted to set forth some sort of qualification for one to criticize the government for behaving like the white minority regime. His remarks borders on racism and xenophobia to say the least. The speech was vengeful and clearly political.

What is even more worrying about Cheda's remarks is his silence on the judiciary's commitment to protect human rights whilst at the same time speaking in support of those who violate the same rights. If the entire bench shares Cheda's utterances then Zimbabwe's judiciary system has become a cornucopia of contextual irrelevance. The judiciary must stand for justice - nothing more, nothing less. Cheda's remarks can also be implied to say those who supported the oppressive Smith regime must not speak out on human rights violations in Zimbabwe.

We note with shame and contempt how a high court judge entrusted with such a high calling of executing justice and upholding the equality and dignity of all humans can stoop so low to speak as if he were the ZANU PF secretary for information and publicity. Judges must defend the rights of people irrespective of color, tribe, political history or political affiliation. The law must protect even Ian Smith, the former Rhodesian Premier who thought Whites were superior to blacks. If the government feels Smith and the former Rhodesians have a case to answer let them press charges through the proper channels. That is the rule of law.

Also worrying is Chief Justice Godfrey Chidyausiku's criticism of human rights lawyers who roundly condemned Constitutional Amendment No.17 that made it illegal for anyone to challenge the government for compulsorily and arbitrarily dispossessing them of their land. The amendment bill barred the courts from hearing such matters. Chidyausiku's remarks in defence of the amendment bill are hardly surprising given that some of the High Court Judges are beneficiaries of the violent land reform program the government is fighting hard to defend (Zimbabwe Independent, 13 / 01).

Furthermore, as mentioned earlier, the appointment of judges is the prerogative of the President. Having squandered his social capital and realizing that power was slipping out of his hands fast, President Mugabe and his ZANU PF decided to pack the bench with judges that are sympathetic to ZANU PF. But how could he remove the presiding judges before their terms of office expired? According to Sithole and Mair, (2002), the ruling party more and more resorted to unlawful means to prevent the judiciary from interfering with its absolute power strategy. It encouraged its party-militias, war veterans and youths to demonstrate against judges who were considered out of line. In November 2000, war veterans raided the Supreme Court building after the latter had ruled the government's land reform program unconstitutional.

In February 2001, High Court judges who ruled against the seizure of land by war veterans were physically threatened and attacked. A War Veterans Leader and ZANU PF official, Joseph Chinotimba, gave evidence on the attitude towards "disobedient" judges: "We didn't promote people like Makarau (one of the judges threatened) to be judges so that they can pass judgments against us." (Sithole and Mair, 2002). In 2001 justice minister Patrick Chinamasa told judges not to act like "unguided missiles".

"I wish to emphatically state that we will push them out ...The present composition of the judiciary reflects that the country is in a semi-colonial state, half free, half enslaved", said Chinamasa (Zimbabwe Independent, 13 / 01)

It is therefore crystal clear that the government, as announced by the Justice Minister in 2001, has "pushed out" independent judges and replaced them with bootlickers of the Mugabe regime. Judges must never be bedfellows with politicians as doing so compromises the virginity of justice and democracy. Sadly, the Zimbabwean judiciary has sold its independence and credibility for a piece of land.

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