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Attack
on Magistrate Tsamba unacceptable
Zimbabwe Lawyers for Human Rights (ZLHR)
March 18, 2004
Zimbabwe Lawyers For
Human Rights (ZLHR) is concerned at the growing incidences of the police
re arresting suspects after the Courts will have ordered their release.
The latest in those cases is that involving Mr. James Makamba whose release
was ordered by Magistrate Ms Tsamba on 17 March 2004 following a precedent
of the High Court in a matter with similar facts. Despite the court ordering
his release, Mr. Makamba has remained in detention. The other prominent
case where the police disregarded a court order is that involving Mr.
Phillip Chiyangwa where the Executive defied Justice Bhunu’s order for
the immediate release of Mr. Chiyangwa. Such blatant defiance and disregard
of Court orders undermines the administration of justice and goes to the
root of the independence of the judiciary. In particular such conduct
seriously erodes the public’s confidence in the Courts and has grave consequences
on the rule of law.
ZLHR is also gravely
concerned at the continued use of The Herald and other state controlled
public media as instruments to attack members of the judiciary who, in
the course of their duties as judicial officers, make rulings that may
not be favourable to certain quarters within the state. Magistrate Judith
Tsamba becomes the latest victim when the Herald of 18 March 2004 reported
that
" Magistrate’s
ruling sparks outrage - There was outrage within the legal fraternity
yesterday after Harare magistrate Ms Judith Tsamba released on bail
businessman and politician James Makamba... The courts do not have the
capacity and will never have that capacity to say each one of the police
officers in the country must first obtain a warrant before they arrest
anyone…A highly placed Government source.said ‘Ms Tsamba’s ruling was
likely to bring chaos in the country’s justice system"
ZLHR maintains its
position that such comments are contemptuous, unwarranted and calculated
to bring the administration of justice into disrepute. It is also part
of a wider, deliberate, systematic and sustained general attack on the
judiciary to manipulate it, reduce its independence and weaken national
institutions of protection that are vital for the restoration of the rule
of law and democracy. Ms Tsamba is the latest victim among members of
the legal profession to suffer an attack merely for doing his job as a
judicial officer
Recommendations
ZLHR draws
the government’s attention to the following instruments that clearly spell
out its obligations and responsibilities towards ensuring that the Judiciary
remains free from political or other interference:
- United Nations
Basic Principles on the Independence of the Judiciary (1985),
Article 1, which states:
"The independence
of the judiciary shall be guaranteed by the state and enshrined
in the Constitution or the law of the country. It is the duty of
governmental or other institutions to respect and observe the independence
of the judiciary."
- United Nations
Basic Principles on the Role of Lawyers (1990), Principle 17
which, states:
"Where the security
of lawyers is threatened as a result of discharging their function
they shall be adequately safeguarded by the authorities"
- The Constitution
of Zimbabwe, Section 79B, which states:
"In the exercise
of judicial authority a member of the judiciary shall not be subject
the direction or control of any person or authority…"
ZLHR also draws the
government’s attention to the report of the Special Rapporteur on the
independence of the judges and lawyers, Dato’ Param Cumaraswammy, submitted
to the United Nations Human Rights Commission dated 10 January 2003 which
has a recommendation as follows:
" With regard to
Zimbabwe, the Special Rapporteur once again urges the Commission to
consider and address appropriately its concerns about the deterioration
in that country, inter alia with regard to the independence of the judiciary
and its impact on the rule of law."
ZLHR further draws
the government’s attention to the recommendations of the African
NGOs Forum at the African Commission’s 33rd session
in Niger, which read in part that:
"
The participants at the NGO Forum urge the African Commission on Human
and Peoples Rights to recommend that the government of Zimbabwe;
take
all necessary measures to ensure protection of lawyers, public prosecutors,
magistrates, judges and to respect the independence of the judiciary."
ZLHR reiterates its
grave concern at the upsurge in threats, harassment and intimidation of
prosecutors, lawyers, magistrates and judges, particularly those handling
human rights-related cases, and calls upon the government to comply with
its obligations and responsibilities to guarantee the independence of
the Judiciary and to ensure that adequate protection is offered to members
of the legal fraternity in the exercise of their judicial functions. In
particular all reports of subtle or direct threats, intimidation and harassment
of the judges, magistrates, lawyers and public prosecutors must be promptly
investigated and perpetrators prosecuted.
Visit the ZLHR fact sheet
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