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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.

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