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The
Judicial Institution in Zimbabwe
University
of Cape Town and Siber Ink
April 24, 2004
Foreword by Hugh
Corder, Dean of the Faculty of Law, University of Cape Town
South Africa's
transition to a constitutional democracy began formally just on ten years
ago, in the context of a substantial shift to such a means of government
in many parts of the world, most notably Central and Eastern Europe, and
parts of South America, Asia and Africa. Our first decade of democracy
has seen many testing times for the courts as part of government, yet
as custodian of the values foundational to our Constitution. Among the
most significant such values, endorsed in s 1(d) of the 1996 Constitution,
are the nurturing of a 'multi-party system of democratic government, to
ensure accountability, responsiveness and openness'.
The formation of the
African Union has proposed the extension of this principle among all its
members, enforceable through an African Court of Justice and a less formal
'peer-review mechanism', whose members have been named in the past few
months. While there is a fair degree of scepticism about the potential
efficacy of such bodies to achieve the laudable goals of the African Union,
they at least need to be given a chance to show whether they can work
or not.
The situation in Zimbabwe
must surely be close to the top of the urgent agenda of the African Union
and its constituent parts in their bid to uphold good governance and the
rule of law. Zimbabwe came to independence in a significantly different
political climate from South Africa at the beginning of a decade dominated
by the socio-economic conservatism of Thatcher and Reagan and with the
Cold War still very much being waged. The war for freedom from colonial
oppression had been bitter and of long duration, and the white minority
in Rhodesia insisted on entrenched guarantees which perpetuated resentment,
if not hatred. The administration of justice had to contend with its own
history under the rebel regime of the 1960s and 1970s, in an increasingly
polarised society.
The Faculty of Law
at the University of Cape Town has long played a role in public debate
on such matters and as a protagonist of the rule of law and the implementation
of democratic rights. Over the past three years the Department of Public
Law has resolved to undertake research into the general state of 'good
governance' in Southern Africa, with the aim of promoting the implementation
of democratic rights. The Department's partnership with the Institute
for Democracy in South Africa (IDASA) in the Open Democracy Advice Centre
(ODAC) is one such project. This publication is another. Prompted by the
increasingly desperate situation in Zimbabwe, it was decided early in
2003 that research should be undertaken into the position of the judiciary
in that country. This publication sets out its finding to try to set out
a public record of what has been occurring in the Zimbabwean administration
of justice, to draw attention to the dangers, but to do so constructively,
with the objective of aiding as rapid a return to democratic governance
and the rule of law as possible.
It is hoped that this
publication will assist in this aim. The research will continue this year,
and a new project will focus more widely on judicial appointment mechanisms
in southern and East Africa, under the auspices of the Democratic Governance
and Rights research unit, soon to be established. The author of this account,
Karla Saller, will be joined by other researchers in carrying out the
work of the unit, under the leadership of the Head of Department, Professor
Christina Murray, and myself. We welcome comment on and criticism of this
report, and the wider project.
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This work is licensed under a Creative Commons License unless stated otherwise.
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