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Police
compliance with the High Court Order in the ANZ case applauded
Zimbawe Lawyers
for Human Rights (ZLHR)
January 21, 2004
The High Court should
once again be applauded for its latest ruling of 21 January 2004 in the
ANZ saga. The ruling shows the High Court’s resolute stance in upholding
the tenets of democracy and basic universally recognized human rights
in the ANZ case.
Previous High Court
and Administrative Court Orders
- On 17 September
2003 High Court Judge Justice Omerjee in a very legally sound and
brave judicial decision ruled that the police conduct of forcibly occupying
the premises of ANZ and seizing their equipment without a Court order
was illegal and that there was nothing at law to prevent the ANZ from
publishing the Daily News. The police were ordered to return the seized
equipment and not to interfere with the ANZ. In particular Justice Omerjee
ruled that the police " have no legal right to prevent the applicant
or its employees from gaining access to the premises of the applicant
and carrying on the business of publishing a newspaper." The order
was not complied with and dilatory processes employed to frustrate the
ANZ remedy.
- On 24 October
2003 Administrative Court Judge President Majuru made a ruling setting
aside the decision of the MIC declining to grant the ANZ a licence.
He gave three grounds namely that, the MIC was improperly constituted
and could not in its current composition issue out any valid licences
or decisions, the MIC had acted outside its powers when it turned down
the ANZ application, and that the MIC was biased especially through
its Chairman against the ANZ. Mr Majuru also made a ruling that as far
as the court was concerned ANZ had to be issued with a certificate of
registration. The operative part of the judgment reads " Given
the finding of bias that we have made, the unjustifiable delays that
might be occasioned to the Applicant by a re-determination, and the
fact that we are in as good a position to make the decision ourselves,
we order that the Appellant be issued with a certificate of registration
by the Respondent" Mr Majuru’s judgment was brave and well reasoned
and showed a marked degree of judicial activism in protecting the bill
of rights and universally recognised human rights and fundamental freedoms.
The judgment was not complied with and substantial pressure was thereafter
applied on Mr Majuru.
- On 19 December
2003 Administrative Court Judge President Selo Nare granted an order
that
- The carrying
into effect of the judgement of Judge Majuru handed down on 24th
October 2003, pending appeal by the Respondent (MIC) to the Supreme
Court, is allowed.
- This order
shall remain in force and effect notwithstanding the filing if any
notice of appeal against it by Respondent.
- The Respondent
shall pay the costs of this application.
This order was not
complied with by the State and dismissed as academic by the Minister
of Information Professor Jonathan Moyo.
- On 9 January
2004, the High Court Judge Justice Uchena granted an order to the
effect that the police vacate the ANZ premises at Old Mutual House and
also at No. 18 James Martin Avenue in Southerton. Furthermore the police
were ordered to refrain from interfering with the normal business activities
of the ANZ and that of its employees. Sadly, the police again defied
this order to vacate ANZ premises in a blatant show of contempt.
Latest order
On 21
January 2004 High Court Judge Justice Tendai Uchena granted yet another
order for the police to vacate A.N.Z. premises and not to interfere with
the business of the ANZ in any way whatsoever. This means that the Daily
News and The Daily News on Sunday should immediately be back in circulation
again. The latest judgment by the court is applauded as it shows a remarkable
degree of persistence on the part of the High Court to reaffirm the universally
recognized right and fundamental freedom of expression.
Defiance of court
orders
Unfortunately
the courts can only go so far in asserting the rights of society. Once
they make a pronouncement as to the correct legal position, the responsibility
to enforce the law immediately shifts to the Executive organ of the state,
it being the one that is in charge of the state machinery. In enforcing
court orders, the Executive complies with its responsibility to ensure
that citizens enjoy the right to the protection of the law which right
is provided for in our constitution.
Despite the fact that
the police simply ignored previous court orders in the ANZ matter, ZLHR
finds the fact of eventual compliance with the court orders by the police
to be a welcome relief.
A culture of defiance
of court orders severely undermines the judiciary and the justice delivery
system and entrenches a culture of impunity and lawlessness. Such a state
of affairs is not good for anyone in society as was demonstrated in the
recent case involving the Member of Parliament Hon. Phillip Chiyangwa.
It is therefore hoped
that the compliance with this court order marks the beginning of an era
where the state will comply with every court order whether favourable
to the state or not.
Visit the ZLHR fact sheet
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