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The
Inquiry into the conduct of High Court Judge Justice Benjamin Paradza:
A brief interim report on the trial observation
Zimbabwe Lawyers
for Human Rights (ZLHR)
May 14, 2004
Brief Background
In October
2003 Mr. Justice Benjamin Paradza was arrested by the Zimbabwe Republic
Police on a charge of obstructing the course of justice; in that he had
tried to influence another judge of the High Court Justice Mafios Cheda
to release on bail his business associate Labuschagne, who was being held
in custody on a murder charge. Following justice Paradza’s arrest there
was an outcry from members of the legal profession and civic society who
felt that the police had jumped the gun since a sitting High Court judge
can not be arrested before an inquiry into the alleged criminal conduct
has been set up and established the veracity of such allegations. In a
subsequent application to the Supreme Court on his improper arrest, the
Supreme Court ruled that the arrest had been indeed improper and that
a commission of inquiry had to be established before any action could
be taken by the law enforcement agents.
For close to six months
no action was taken by the State until February 2004 when it was announced
in the Government Gazette that a tribunal consisting of Supreme Court
judges from Malawi, Zambia and Tanzania had been appointed to inquire
into the conduct of Justice Paradza. Zimbabwe Lawyers For Human Rights
appointed some trial observers to the trial and produces this first interim
report
The Proceedings
The Tribunal
commenced on the 5th of April 2004 with the proceedings being held in-camera.
Initially the ZLHR observers were denied entry to the proceedings by the
Secretary to the Tribunal Mr. Jameson Mupariwa Mukaratirwa who advised
that he had no authority to allow observers to the inquiry.
Pleminary Issues
on the first day:
- The State challenged
the appearance of Advocate Gauntlet from South Africa as defence Counsel
on the basis that he had no right of appearance in Zimbabwe. The defence
argued that the right of appearance granted to Gauntlet to appear in
the Supreme Court in the same matter last year was still valid as these
were the same proceedings concerning the same parties and same facts
and the same evidence and that there was no need for another registration
for Gauntlet to appear in essentially the same matter. The issue was
ruled in favour of the defence.
- The second issue
was an application by the defence to open the proceedings to the public.
The notice in the Government Gazette convening the inquiry had provided
that the proceedings were to be held in camera thereby raising suspicion
and protests from human rights groups.
- The third preliminary
issue was the challenge by the defence of the competency of the Tribunal
to deal with the matter given that the defence felt that the Tribual
had been improperly appointed. Information given by Justice Paradza’s
lawyer Mr Jonathan Samkange was that the Tribunal consequently adjourned
in the morning to allow the defence team time to make an application
to the High Court challenging the appointment of the three foreign judges
to the Tribunal. The defence argued that the State President had over-
delegated in letting the Minister of Justice, Legal and Parliamentary
Affairs appoint the members of the Tribunal and therefore in terms of
the Constitution of Zimbabwe the Tribunal was incompetent to carry out
the inquiry.
- The defence team
had filed an application to the Supreme Court in terms of section 24
of the Constitution soon after the announcement of the appointment of
the members of the Tribunal, as they felt that proceeding with the Tribunal
was a direct violation of the Justice’s rights in view of the fact that
there were many issues that needed to be resolved by the Supreme Court
before the inquiry could proceed. The constitutional application had
not been set down for hearing by the Supreme Court at the commencement
of the Tribunal hearing.
On the following day
the 2nd day of the Tribunal, the proceedings were stayed for the hearing
of the application in the High Court challenging the appointment to the
Tribunal of Justices; Denis Kamoni Chirwa of Zambia, Isaac Mtambo of Malawi
and John Mroso of Tanzania. The Tribunal was also declared open to the
public on the 6th of April following a general outcry from civic society,
and ZLHR in particular which felt that the holding of the Tribunal in-camera
was a pointer to the fact that the proceedings of the inquiry would not
be free and fair.
The application at
the High Court was heard on the 8th of April before Justice Lavender Makoni
who postponed judgment to the following day. On the 9th of April 2004
Justice Makoni dismissed the application but did not rule on whether or
not the Tribunal could carry on with the proceedings pending the noting
of an appeal against dismissal at the Supreme Court. The Tribunal took
a break for the Easter holidays from the 9th to the 12th of April and
on the 13th proceedings were stayed in the morning to allow for the hearing
of the appeal at the Supreme Court.
The Supreme which
was on a break told the defence team that it was actually prepared to
hear arguments from both the State and the defence but the defence asked
for a postponement since they had not had adequate opportunity to prepare
for the appeal hearing since the reasons for the High Court judgment had
been handed down late. The Supreme Court was not prepared to postpone
the hearing to the following day. The Chief Justice declared that there
was no reason for the Tribunal to postpone the hearing.
The Tribunal recommenced
on the 14th of April and it was seized with arguments from both State
and defence teams on whether it should postpone its proceedings sine
die until all the matters pending in the Supreme Court had been resolved
or to carry on as if the proceedings had not been disturbed by several
events. The State represented by Mrs Mary Dube opened the argument saying
that there was no reason why the inquiry should not proceed since the
defence had been given an opportunity to present their case before the
Supreme Court but had failed to utilize that opportunity. Mrs Dube further
argued that the continual delay of the proceedings was quite prejudicial
to the State as most of the State witnesses had already been subpoenaed
to the hearing and were being housed in expensive hotels at the State’s
expense.
Defence counsel opposed
the idea of the Tribunal continuing with the inquiry on the grounds that,
firstly justice Paradza’s legal representative South African Advocate
Jeremy Gauntlet was not at present available as he had other commitments
back in South Africa, the members of the defence team who were presently
representing justice Paradza were not comfortable with the continuation
of the inquiry as it would entail at one point cross-examining judges
of the High Court whom the legal practitioners from Zimbabwe appear before
on a daily basis. Therefore a legal practitioner from outside Zimbabwe
would be the most appropriate person to represent Justice Paradza. Furthermore
the Defence argued, the fact that an appeal had been noted at the Supreme
Court was reason enough to stop the ongoing proceedings and this was based
on the celebrated case of United Bottlers Vs Nkomo1994 (2) ZLR 211(SC)
in which it was ruled that an appeal to the Supreme Court suspends
proceedings in any other court. The defence also argued that the Chief
Justice Godfrey Chidyausiku was not in a position to make any declarations
on the issue of whether or not the Tribunal could proceed or not as he
was not well versed with the issues at hand as he had recused himself
from hearing the initial constitutional application by Justice Paradza.
It was further argued
that the continuation of the inquiry would also amount to contempt of
Court. The State however argued that it would not be contempt of Court
since the Supreme Court itself had indicated that there was no reason
why the Tribunal should not proceed. The State went on to argue that the
defence was not serious about pursuing their client’s rights as they had
been granted an opportunity to argue before the Supreme Court and had
failed to do so. The State also argued that further delaying the proceedings
would prejudice the members of the Tribunal themselves who had suspended
their own duties in their countries in order to attend to the Tribunal.
At this point the inquiry was adjourned for the day in order to give both
parties time to further their arguments.
The defence argued
that there were no pointers as to any reason why the Tribunal should proceed
at an accelerated pace since the State had not in the past indicated that
the matter was being dealt with as a matter of urgency. The defence argued
that, initially, contrary to following the correct procedure provided
for in terms of the Constitution, the State had intended to prosecute
Justice Paradza before the Supreme Court ruled that the matter had to
proceed in terms of section 87 of the Constitution of Zimbabwe. This had
not been pursued for over half a year. When the State finally decided
to follow the correct procedure it had not afforded the defence adequate
time to prepare its case. The defence lawyer Mr. Jonathan Samkange further
argued that there was no way that the defence team could have prepared
to present their case before the Supreme Court as they had not been given
notice to submit the heads of arguments as is standard procedure of the
Supreme Court.
However Mrs Loice
Matanda-Moyo for the state argued that the notice of appeal to the Supreme
Court had no effect of suspending the proceedings of the Tribunal as the
Supreme Court itself had declared that there was no reason why the Tribunal
should not proceed with the inquiry. She went on to say that since the
initial application to the High Court had been for an interdict there
had been no order from the High Court and hence the noting of the appeal
had no effect on the proceedings. On the issue of the alleged contempt
of Court Mrs. Matanda-Moyo argued that the Tribunal is governed by the
Commissions of Inquiry Act and is not governed by section 18 of the constitution
of Zimbabwe. It is therefore distinguished from the ordinary courts of
Zimbabwe.
The defence team wound
up their argument by pointing out that in terms of the Roman-Dutch law
under which the courts of Zimbabwe operate, an appeal suspends proceedings
in any other court or tribunal within the local jurisdiction and this
was clearly set out in the case of PTC Vs Mahachi 1997 (2) ZLR 71@
page 73 "It is now trite that at common law an appeal suspends
the order that it is appealed against…" Mr Samkange also further
argued that in coming to the decision whether to carry on with the proceedings
or not they had to bear in mind that the members of the tribunal are themselves
judges of the Supreme Courts in their relevant jurisdictions and any decision
they make would have an effect on the jurisprudence of Zimbabwe and their
own countries. 2ndly, the judges also had to bear in mind the fact that
there could be no prejudice to be suffered by the Tribunal if its proceedings
were stayed until the resolution of matters pending in the Supreme court
since it would be difficult to overcome any decision that the Tribunal
would have reached.
On the 16th of April
2004 the Tribunal announced that it had decided to stand down until all
the matters that were pending at the Supreme Court had been resolved.
Conclusion
This is
a preliminary report prepared by the trial observers for Zimbabwe Lawyers
for Human Rights. ZLHR will continue the observation when the Tribunal
resumes and will produce further interim reports as necessary and a final
report at the conclusion of the matter.
For further information
please contact Chipo Hama or Arnold Tsunga at ZLHR
Visit the ZLHR fact
sheet
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
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