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The Judicial Institution in Zimbabwe
University of Cape Town and Siber Ink
April 24, 2004

Introduction
A central feature of a functioning democracy is the judicial institution as guardian of the rule of law and protector of basic human rights. Such a judiciary not only serves the immediate interests of individuals but also promotes a stable society governed by an efficient system of civil and criminal law.

Distrust of the judicial institution as an elite, unelected and generally conservative institution has been exacerbated in Zimbabwe since 2000 by the government's use of racial discourse against individual judges, which has affected the judicial institution as a whole. In addition, the years after independence in 1980 were punctuated by repeated, though not always successful, attempts by the courts to protect human rights from encroachment by executive policies and this led to antagonism between the different branches of government. Democratic institutions may be struggling to remain relevant in Zimbabwe but they have not become obsolete. The ruling Zimbabwe African National Union Patriotic Front (ZANU-PF) understands that democracy lends legitimacy to government institutions, as is evident from the lip-service it continues to pay to democratic principles, its formal adherence to democratic procedures and its appeal to shows of popular support in the face of growing disillusionment in the party. It is perhaps least of all in Zimbabwe that ZANU-PF seeks legitimacy; rather it is in relation to the Southern African region that most efforts are made in this regard. African leaders' reluctance to condemn the situation in Zimbabwe publicly has been facilitated by the veneer of democratic procedure that overlies public affairs in that country.

The main objectives of this book are

  • to explore events that have shaped Zimbabwe's jurisprudential history;
  • to provide an account of the present functioning of the judicial institution in Zimbabwe; and
  • to link past events to the current political crisis that has seen Zimbabwe slide into a state of near chaos.

Zimbabwe has a recognised tradition of judicial independence and concern for human rights that spans not only the years since independence but dates back to colonial times. In particular, both before and after independence judicial interpretation of draconian legislation and orders for arrested and detained persons to be produced in court have provided some measure of judicial control over government abuses of human rights.1

 

The relationship between the post-independence government and the judiciary was problematic from the outset. Court structures and judicial officers remained in place during the transition period in 1979 and after independence in 1980. Since the judiciary at the time was mainly white and had served under the pre-independence government, it was accused of being wedded to the old order and doubts were cast on its claims to legitimacy. Police and government impunity as well as the government's publicly expressed hostility to the demands of the judiciary preceded 2000.

Distrustful of the motives of the legal profession, and in particular the judiciary, the government gave early indications of attitudes that would harden over time. On 13 July 1982, in the context of a legal battle concerning the lawfulness of the arrest of two farmers, the Young brothers, the home affairs minister made the following comments in Parliament:

We are aware that certain private legal practitioners are in receipt of moneys as paid hirelings, from governments hostile to our own order, in the process of seeking to destabilise us, to create a state of anarchy through the inherited legal apparatus. We promise to handle such lawyers using the appropriate technology that exists in our law and order section. This should succeed in breaking up the unholy alliance between the negative bench, the reactionary legal practitioners and governments hostile to us, some of whose representatives are in this country.2

The Young brothers were released and immediately re-detained three times. Only the third detention was ruled as lawful. The tension arising out of the arrests and the minister's statements about attacks on the legal profession was eventually defused through consultations between the Chief Justice and the Minister of Justice, and after public statements by the Minister of Justice endorsing the independence of the judiciary.3 However, an indication of things to come was evident from the conflicting statement made by then Prime Minister Robert Mugabe in Parliament on 29 July 1982:

[T]he Government cannot allow the technicalities of the law to fetter its hands in what is a very clear task before it, to preserve law and order in the country . . . We shall, therefore, proceed as Government in a manner we feel is fitting . . . and some of the measures we shall take are measures which will be extra legal.4

An indication of the worsening relationship between the judiciary and the executive arose in 1999 when the army detained the editor of The Standard newspaper, Mark Chavunduka, and a journalist colleague, Ray Choto.5 The detentions followed reports in The Standard alleging that twenty-three army officers had been arrested for attempting to incite an overthrow of the government. Three times, without success, the High Court of Harare ruled that the editor had been detained unlawfully and ordered his immediate release. Neither the Defence Minister nor his legal representatives appeared in court to explain their refusal to abide by the rulings. Instead, the Permanent Secretary of Defence issued this statement: 'The court cannot direct us. We will move at our own pace.We are interrogating him [Chavunduka] at the moment.' Soon afterwards Choto was taken into police custody.6

Only Judge Nicholas McNally, Judge Ahmed Ebrahim and Judge Simba Muchechetere were in the country at the time. These members of the Supreme Court bench addressed a letter to President Mugabe asking him to denounce the illegality of the detentions and the impunity with which the army had acted in the face of court orders. Instead, Mugabe reacted strongly against the letter, calling on the judges to resign. He said that

. . . the judiciary has no constitutional right whatsoever to give instructions to the President on any matter as the . . . judges purported to do. Their having done so can clearly be interpreted as an action of utter judicial indiscretion or as one of imprudence, or as, as I regard it, an outrageous and deliberate act of impudence.7

The constitutional crisis precipitated by the army's actions was allowed to peter out rather than being resolved. The detained editor and journalist were released by the army and police respectively. No affirmation of the rule of law was forthcoming from the government. The judges did not resign.8

These examples of government impunity reveal tensions that eventually erupted in 2000. However, there were also more subtle indicators of the struggle between the two branches of government. Prior to 2000 the government by and large appeared to respect judicial rulings even as it sought legal means to circumvent the implications by passing amendments to the Constitution, by passing legislation and by making extensive use of clemency orders.

An example is the inclusion of s 15(5) and 15(6) of the Constitution, which specifically exclude delays in the execution of the death penalty from the right to be free from inhuman punishment contained in s 15(1). The subsections were inserted after the Supreme Court, in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, & others9 found such delay to be contrary to s 15(1). In the subsequent case of Nkomo & another v A-G & others10 Gubbay CJ accepts expressly that the Constitution of Zimbabwe Amendment (No 13) Act was passed with the intention of overcoming the effect of the court's judgment.

 

A further instructive case dealing with an attempt at legislative ouster of judicial protection is that of Forum Party of Zimbabwe & others v Minister of Local Government, Rural and Urban Development, & others,11 dealing with a challenge to the validity of the mayoral election for the city of Gweru. The election was held in terms of the Presidential Powers (Temporary Measures) (Urban Councils) Regulations 1995, which had been made under the Presidential Powers (Temporary Measures) Act.12 Subsequently, the legislature passed the Urban Councils Act,13 which expressly validated mayoral elections made in terms of the regulations irrespective of the validity of the regulations. In determining the intention of the legislature in enacting s 321(2) of the Urban Councils Act, the court accepted that 'the aim of the legislature in enacting s 321(2) of the Urban Councils Act was to ensure that there was no possibility of the elections held pursuant to the Regulations being voided by the courts'.14 Writing for the full court, Gubbay CJ accepts that the unequivocal and express language of the Act has the effect of rendering the elections immune from challenges against the validity of the regulations under which they were held.

Another example is the Constitutional Amendment of 1992 allowing corporal punishment of minors after the Supreme Court ruled that caning of minors constituted cruel and inhuman punishment.15 In addition, in 1996 the Constitution was again amended16 to deny women the right to confer automatic residency on their foreign spouses. This was in apparent response to a ruling by the Supreme Court in 1994 declaring that women should have the same rights as men to confer residency and citizenship on their spouses.17

Legislative reaction to judicial interpretation is not in and of itself something that gives rise to concern. Indeed, it might be regarded as a sign of healthy interaction between the various branches of government. The line between legitimate override of judicial interpretation of human rights and constitutional safeguards and the illegitimate abuse of the democratic process is not one that is easily defined or identified. However, the tendency in Zimbabwe after 2000 for the government to disregard judicial pronouncements that went against its perceived interests started a development that can only be described as the progressive breakdown of the rule of law.18

Events have clearly escalated since then. In the parliamentary elections of June 2000 the opposition Movement for Democratic Change (MDC) won fifty-seven of the 120 seats despite credible allegations of voting irregularities that saw almost 15 per cent of voters turned away at the polls.19 In addition to the 120 elected seats, the president appoints a further 20 Members of Parliament at his discretion while ten traditional chiefs bring the number up to 150. Despite the strong performance of the MDC, ZANU-PF retains a comfortable majority in the House.20

Numerous challenges to the election results in the various constituencies have been brought to the courts. Commentators have said that it was the indication of popular dissent in the form of the MDC's success at the polls, potentially supported by an independent judiciary, that marked the turning point in the Zimbabwean government's approach to political opposition and judicial institutions.

Several draconian pieces of legislation have been passed over the last two years, while the run-up to the presidential election in 2002 has seen an increase in presidential proclamations. There has been a significant turnover in the composition of the bench, at the level of the High Court and particularly in the Supreme Court. Political violence, implicitly sanctioned by the government or actively perpetrated by its agents, has escalated significantly.

In March 2001 a delegation of the International Bar Association (IBA) travelled to Zimbabwe. Upon returning to South Africa, George Bizos, a prominent human rights lawyer and member of the delegation, commented:

We had a lengthy meeting with the minister of justice. He really spoke along the same lines as the President. But I believe, with due respect to him, that he does not distinguish between the rule of law and rule by law.21

The IBA's report said the rule of law in Zimbabwe was 'in the gravest peril' as the government openly ignored court rulings and encouraged the intimidation of judges, thereby putting 'the fabric of democracy at risk'. In a subsequent article, Lord Goldsmith, cochairperson of the IBA'sHumanRights Institute and a participant in the IBA's visit to Zimbabwe, summarised the conclusions of the IBA:

We met at length with key ministers . . . with President Mugabe, and [held] separate discussions with the country's Attorney-General and Minister of Justice. What we saw dismayed us: intimidation and threats to judges which the government appeared to condone; unconstitutional pressure by government ministers on judges to leave the Bench; a failure by the government to enforce orders of its own courts; and a widespread belief that there is selective prosecution of crime where political violence is at issue.

Despite reassurances we were given - and which we record in our report - we were gravely concerned that all this was leading to a culture of lawlessness in the country . . . The losers are the people of Zimbabwe, for judicial independence is not a privilege of judges, but a right of every citizen.22

Commentators warn not merely of the breakdown of the rule of law in Zimbabwe, but of its flagrant and open abuse.23 In September 2002 a journalist was arrested for stating that in his opinion the country's Chief of Police, Augustine Chihuri, was unfit for duty. The response by the Minister of Information, Jonathan Moyo, was that if the newspaper's editor could not run 'a professional paper, the law will have to assist him'.24 When a prominent member of a repressive regime considers the law an ally, it is cause for grave concern.

In exploring the themes outlined in this introduction, this book considers in Chapter 2 the rights in the Zimbabwean Declaration of Rights. This is followed in Chapter 3 by a discussion of the higher court structures and practitioners. The fourth chapter considers the separation of powers, in particular the executive's law-making powers, as well as repressive legislation that has allowed the amassing of regulatory power by the government. Also discussed are the lower court structures, which are part of the civil service.

The conclusion appears inescapable that the High Court structures, and in particular the Supreme Court, are compromised. After the Supreme Court ruling in September 2001 declaring that law and order had been restored on the farms, many commercial farmers gave up looking to the courts for support. The same cannot be said for the political opposition to Mugabe, including the MDC and Tsvangirai, who continue to take matters to court with the help of civil society organisations. In an interview Brian Kagoro of Crisis-Zimbabwe has pointed to the value of publicity that remains inherent in the court process, and the potential for the creation of a public record.25 The publicity attaching to the Tsvangirai trials attests to the continuing value of publicity at least in relation to high profile matters. A further indication of the importance of judicial proceedings is that during negotiations between Mugabe and the MDC, one of the conditions imposed by the president for continuing negotiations was the withdrawal of the presidential election challenge.26 In its attempt to retain the veneer of legitimacy the government has not yet attempted to hold court proceedings in camera. Attempts by police to limit the access of international observers and journalists to Tsvangirai's trial were prevented by the court, and media pressure over the trial has been intense.27 Despite some encouraging signs, there can be no doubt that the judicial institution over the past three years has suffered significant damage, both in terms of its ability to perform its institutional role in promoting order in society as well as protecting Zimbabweans against infringements of their rights, and also in terms of its national and international legitimacy. These concerns must be squarely confronted if Zimbabwe is to move towards a new constitutional democratic order at any point in the future.

  1. Amnesty International The Toll of Impunity AI Index: AFR 46/034/2002 (Amnesty International, London June 2002) ('AI') at 46-7.
  2. Parliamentary Debates, 13 July 1982, quoted in Greg Linington Constitutional Law of Zimbabwe (Legal Resources Foundation, Harare 2001) para 454.
  3. Linington op cit n 2 paras 455-7.
  4. Parliamentary Debates 29 July 1982, quoted in Linington op cit n 2 para 456.
  5. Misa Zimbabwe Alert 21 January 1999.
  6. See (1999) 1 Legal Forum 7, quoted in Linington op cit n 2 para 458.
  7. See (1999) 1 Legal Forum 7-8, quoted in Linington op cit n 2 para 460.
  8. Linington op cit n 2 para 462.
  9. 1993 (1) ZLR 242 (S).
  10. 1993 (2) ZLR 422 (S).
  11. 1997 (2) ZLR 194 (SC).
  12. [Chapter 10:20].
  13. [Chapter 29:15].
  14. At 197B.
  15. Constitution of Zimbabwe Amendment (No 11) Act 30 of 1990.
  16. Constitution of Zimbabwe Amendment (No 14) Act 14 of 1996.
  17. Rattigan & others v Chief Immigration Officer & others 1994 (2) ZLR 54 (SC).
  18. Ibid at 5-6.
  19. US Government Delegation to the 57th Session of the UN Commission on Human Rights Department of State Human Rights Reports for 2000 - Zimbabwe February 2001, available at
    http://www.humanrights-usa.net/reports/zimbabwe.html (last accessed 10 June 2003).
  20. Ibid.
  21. International Bar Association Report of the Zimbabwe Mission 2001 23 April 2001, available at http://www.derebus.org.za/archives/2001Jun/news/iba.htm (last accessed 10 June 2003).
  22. Ibid.
  23. Ibid.
  24. Mail & Guardian (SA), 15 September 2002.
  25. Interview Brian Kagoro 24 February 2003.
  26. News24 (SA) 31 July 2003; Financial Gazette 3 July 2003; IOL May 6 2003.
  27. iafrica.com 5 December 2003.
    28.

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