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Herald
attack on the Administrative Court contemptuous and unwarranted
Zimbabwe Lawyers
for Human Rights (ZLHR)
November 25, 2003
The Herald newspaper
of 25 November 2003 contained a headline titled "Judge under probe- Majuru
accused of making pre-determined judgements in ANZ, MIC legal wrangle".
The paper thereafter goes on to give a report that cast serious aspersions
about the professionalism of the President of the Administrative Court
Mr Majuru in his dealing with the case involving the Associated Newspapers
of Zimbabwe (ANZ) (publishers of the Daily News) and the Media Information
Commission (MIC) purportedly relying on an affidavit of the MIC lawyer
complaining of bias on the part of Mr Majuru. Zimbabwe Lawyers for Human
Rights (ZLHR) views the attack on the Administrative Court and on Mr Majuru
by the government controlled newspaper as 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. Mr Majuru is the latest victim among
members of the legal profession to suffer an attack merely for doing his
job as a judicial officer
Background information
The ANZ
are publishers of the Daily News which is the only independent daily news
paper in Zimbabwe. The other daily newspapers in Zimbabwe are The Herald
and The Chronicle which are government owned and controlled and are generally
believed to churn out government propaganda. For some time the Daily News
has been the target of attack by the state or state organs.
On 11 September 2003
the Supreme Court of Zimbabwe made a ruling in the matter involving ANZ
and MIC. Based on the controversial doctrine of "dirty hands" it refused
to give ANZ audience on its constitutional challenge, instead ordering
that the ANZ first comply with the challenged law before seeking judicial
protection against it. This resulted in the ANZ failing to enjoy its constitutional
right to the due protection of the law.
On 13 September 2003
the police forcibly forced the ANZ to stop publishing the Daily News and
the Daily News on Sunday, its two publications.
On 15 September 2003
the ANZ submitted its application for registration as a media house with
the MIC in compliance with the Supreme Court ruling.
On 16 September 2003
the police forcibly closed the ANZ offices, stopped management and workers
entry into ANZ premises, occupied the ANZ premises (including the news
room), forcibly occupied the premises housing the printing press and uplifted
virtually all ANZ computer equipment to some undisclosed location.
On 17 September 2003
in a very legally sound and brave judicial decision a High Court judge
Justice Omerjee 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 MIC appealed against
this decision to the Supreme Court in a determined effort to prevent the
Daily News from being published.
On 19 September 2003
the MIC predictably refused to grant ANZ a licence to operate as a media
house. The ANZ took this decision on review to the Administrative Court.
This is where Mr Majuru who is the President of the Administrative Court
first entered the scene.
On 24 October 2003
Mr Majuru made a ruling setting aside the decision of the MIC on 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 judgement 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 judgement
was brave and well reasoned and contrary to some superior courts judgements,
showed a marked degree of judicial activism in protecting the bill of
rights and universally recognised human rights and fundamental freedoms.
ZLHR’s Observations
The position
of the Administrative Court has therefore been always very clear in terms
of the judgement quoted above. The suggestions that Mr Majuru has now
suddenly prejudged the matter through an informal, incidental and fortuitous
communication to a stranger asking for help in a street, is mischievous
and calculated to damage the reputation of the Mr Majuru in both his personal
and professional capacity. ZLHR is aware that the over riding motive is
however that of maintaining and prolonging the closure of the Daily News
and sustaining the institutional attack on the right to freedom of expression
hook or crook. This has been achieved since Mr Majuru has been left with
no alternative but to recuse himself from the matter. The recusal of Mr
Majuru from the matter prolongs the matter and places the next president
to deal with the matter under undue pressure. In fact the attack on Mr
Majuru is a deliberate reminder to the judiciary by those forces within
the state that do not believe in the rule of law, that they are at risk
if they make rulings that are seen to be against the state or the ruling
party. ZLHR is not surprised that given this operating environment a record
number of judges of the Supreme Court and High Court have resigned since
2000. The pattern of events listed above on the ANZ case shows that the
state is determined to ‘use the law’ to subvert justice and ensure that
the Daily News does not get published again. It is extremely regrettable
that the Supreme Court (which in any democracy should be the defender
of justice, civil liberties and fundamental freedoms) is constantly referred
to as the reason why the state continues to act in the manner that it
does in preventing the people of Zimbabwe from enjoying their right to
freedom of expression. If the MIC lawyer had been genuinely concerned
at the conduct of Mr Majuru, his remedy will not have been to rush to
the press, but to make an application for the president to recuse himself.
He did not.
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.
Arnold Tsunga
Director
Visit the ZLHR fact
sheet
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