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Legal Monitor Issue 55
Zimbabwe Lawyers for Human Rights (ZLHR)
July 26, 2010

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Rule of law precarious - Report

Economic inducements and threats of physical harm being used to keep the judiciary under control, state security agents' impunity and deteriorating training standards are some of the problems affecting the rule of law in Zimbabwe, eminent international judicial bodies have noted. A report released last week by several distinguished international associations of lawyers noted that Zimbabwe's situation regarding the rule of law remained precarious since the formation of the coalition government 16 months ago.

"By far the majority of the senior judiciary remains fundamentally compromised by State patronage, grants of land and other gifts given to them by the former government. The present government has not sought to claw back such inducements from the senior judiciary nor has there been any policy initiative directed at re-establishing the integrity of the senior judiciary in the eyes of the public," read part of the executive summary to the report. The report, titled "A place in the sun; A report on the state of the rule of law in Zimbabwe after the Global Political Agreement," was produced following a mission that visited Zimbabwe from 24 October to 4 November 2009, the same period when Zimbabwe expelled the United Nations Special Rapporteur on Torture, Dr Manfred Nowak.

The mission, which conducted wide-ranging interviews during its visit, comprised of the Chairman of the General Council of the Bar of England and Wales, Desmond Browne QC, the President of the Commonwealth Lawyers Association, Mohamed Husain, a representative of Avocats Sans Frontières, Lara Deramaix, a representative of the Belgian and Flemish Bars and Philippe de Jaegere, the Vice-President of Avocats Sans Frontières, Netherlands.

Other team members included Hans Gaasbeek, the Chairman of the Bar Human Rights Committee, Mark Muller QC, the Project Coordinator of the Bar Human Rights Committee, Jacqueline Macalesher, and Ijeoma Omambala and Andrew Moran of the English Bar.

"The magistracy is under pressure as it has been for years and magistrates are subject to threats, intimidation, arrest and prosecution when they displease the authorities. In one case referred to in the body of this report a magistrate in eastern Zimbabwe was himself prosecuted by the authorities as a result of having granted bail to the deputy minister designate for Agriculture, Mr Roy Bennett. One interviewee described the magistracy as the unsung heroes of recent years," read the report, which also paid tribute to Zimbabwe's lawyers for braving the harsh and dangerous conditions they operated under.

Findings contained in the report mirror those of local civil society groups and other human rights defenders and show that several cases that have gone before the courts since the formation of the coalition government indicate the rule of law remains in the intensive care.

The report contained the following recommendations:

• The culture of impunity on the part of the police and State security forces should be ended forthwith. Those suspected of having committed criminal offences should be investigated and if appropriate prosecuted regardless of their political affiliation
• The Attorney-General and his representatives should discharge their duties fairly and impartially and in the interests of justice. In particular, the practice of automatic opposition to bail so as to secure a further seven days' detention under section 121 of the Criminal Procedure and Evidence Act should be ended
• A Judicial Services Commission should be formed with a membership comprising, inter alia, retired Justices of the Supreme Court and senior lawyers. The Commission should be entirely independent of the executive as to both its membership and its financing. A transparent nominations process should promote judicial appointments against agreed criteria based on merit
• A Code of Conduct for Judges should be introduced providing for, inter alia, full and frank disclosure of the assets of the Judges of the High Court and the Supreme Court over a certain value (to be set in consultation with the Judicial Services Commission). Judges having received property of any nature from the Government should be required to return that property forthwith
• Responsibility for enforcing the Code of Conduct for Judges should be vested in the Judicial Services Commission which should have the power to discipline Judges including by suspension from office or dismissal in extreme cases such as serious misconduct or incapacity. The current remuneration of Judges and magistrates should be reviewed to ensure that salary and benefits are commensurate with the status and responsibility of their office
• Lawyers should be permitted to practise their profession without hindrance, harassment or intimidation
• The Government should comply with its obligations under the SADC treaty and accept the jurisdiction of the SADC Tribunal and give full faith and credit to decisions of that Tribunal. If necessary, domestic legislation should be brought forward to ensure that decisions of the SADC Tribunal are enforceable directly in Zimbabwe.

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