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Executive
Attack of Judiciary in ruling on Bennett Unfortunate
Zimbabwe Lawyers
for Human Rights (ZLHR)
March 17, 2005
Zimbabwe Lawyers for
Human Rights notes with grave concern that the Executive has once again
attacked the judiciary using the government controlled public media both
electronic and print for passing a judgment that they (Executive) dislike.
This follows the nullification of the results by the nomination court
for the Chimanimani Constituency by the Electoral Court in the case of
Roy Leslie Bennett vs. Zimbabwe Electoral Commission, Samuel Udenge
and Heather Bennett.
In particular, Zimbabwe
Lawyers for Human Rights (ZLHR) are concerned at the reports in The
Herald (Thursday 17 March 2005) wherein it was reported as follows:
" Speaking
at a briefing with provincial, Government and party leaders at Gaza High
School in Chipinge Cde Mugabe DESCRIBED THE RULING AS MADNESS….I DON’T
UNDERSTAND THE COURT’S DECISION. WE CAN’T BE HELD AT RANSOM BY A MAN WHO
IS IN PRISON. THAT IS ABSOLUTE NONSENSE. We will study the decision and
appeal against it… He has a case to answer Rambai muchienderera mberi.
PROCEED AS IF NOTHING HAS HAPPENED". (our emphasis)
ZLHR is concerned
that this could be taken as an instruction by the President to the officials
(Zimbabwe Election Commission officials) involved in the electoral processes
to disregard a valid order of court. What is disturbing is that the President
is not party to the proceedings and therefore outside the parties who
have the legal standing to appeal. Opposing papers in the matter were
only filed by the ZEC which in terms of the enabling statute and the SADC
Principles and Guidelines governing democratic elections is an independent
electoral commission.
In particular the
provisions of Zimbabwe Electoral Commission Act stipulate that ZEC is
an independent body and shall not be subject to the direction or control
of any person or authority in the exercise of its function. Any attempts
by the President or any other state official to impose or usurp the functions
of ZEC will be unlawful and a serious undermining of the independence
of ZEC. The president is an interested party in the running and outcome
of the March 2005 elections and must not be seen to be forcing ZEC to
appeal if they are not interested. It is the mandate of ZEC as the only
party that filed opposing papers in the matter to consider whether or
not an appeal would be justified.
The interference with
the judiciary in Zimbabwe by the Executive and ruling party politicians
has become endemic and an issue of grave concern to the lawyers in Zimbabwe
and the international and regional community. In particular the African
Union adopted the African Commission on Human and Peoples Rights report
at its Fourth Ordinary Session on the 30th-31st
of January in Abuja Nigeria, in terms of which it was observed and recommended
that
"The judiciary
has been under pressure in recent times. It appears that their conditions
of service do not protect them from political pressure; appointments to
the bench could be done in such a way that they could be insulated from
the stigma of political patronage. Security at Magistrates’ and High Court
should ensure the protection of presiding officers. The independence of
the judiciary should be assured in practice and judicial orders must be
obeyed. Government and the media have a responsibility to ensure the high
regard and esteem due to members of the judiciary by refraining from political
attacks or the use of inciting language against judges and magistrates…We
commend to the Government of the Republic of Zimbabwe for serious consideration
and application of the Principles and Guidelines on the Right to Fair
Trial and Legal Assistance in Africa adopted by the African Commission
at its 33rd Ordinary Session in Niamey, Niger in May 2003"
ZLHR therefore further
reiterates the need to guarantee the independence of the judiciary and
urges the Executive to refrain from interference with the judiciary in
line with recommendations by the African Union. Regrettably, the President’s
unfortunate unwarranted attack and outburst against the Electoral Court
will undermine the effective operation of the courts and the independence
of the judiciary. The Executive should be creating an environment for
the courts to exercise their duties without fear or favour rather than
being at the forefront of undermining the rule of law and the integrity
of the courts.
Visit the ZLHR fact
sheet
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