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The progressive erosion of the rule of law in independent Zimbabwe
Anthony Gubbay
December 09, 2009

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Third International Rule of Law Lecture: Bar of England and Wales
Inner Temple Hall, London

When several months ago I received an invitation to deliver the third annual International Rule of Law lecture, I was not only surprised, but extremely delighted. It is an honour and a privilege for one whose career in the law began, and ended, in a country many thousands of miles away, whose system of law is founded on old Roman Dutch principles, to have been chosen to grace this auspicious occasion. Yet, it is an undeniable fact that whatever system of law is applicable, whether it is the English common law, the Napoleonic Code, my own, or that of other countries, the rule of law forms an essential foundation in any democratic system of governance. It is a concept of universal validity and application. It embraces those institutions and principles of justice which are considered minimal to the assurance of human rights, and the dignity of man.

Although there is a wide variety of jurisprudential thought on the complex concept of the rule of law, it is generally accepted that a society in which the rule of law prevails is one in which a climate of legality, observance of the law and an effective judiciary, are evident. It is a society in which no man is punishable, or can be made to suffer bodily or proprietary loss, except for a breach of the law as established by ordinary courts of the land. It does not mean the protection of vested interests, or unfair exploitation in society. It means the emancipation of the spirit of humankind from coercive constraints of fear, inequality and want. It requires that everyone should be subject to the law equally, and that no one should be above the law; that law enforcement agencies and the courts enforce and apply the law impartially.

The rule of law is the antithesis of the existence of wide, arbitrary and discretionary powers in the hands of the executive. It is a celebration of individual rights and liberties, and all the values of a constitutional democracy, characterized by the absence of unregulated executive or legislative power. It is a society in which the rule of law is observed, through the mechanism of judicial review. Executive decisions and legislative enactments, outside the framework of the law, are declared invalid, thereby compelling both the executive and the legislature to submit to enjoyment, by the individual, of all rights and liberties guaranteed by the constitution.

An independent judiciary and legal profession are critical elements of the rule of law. The bedrock of a constitutional democracy is an independent judiciary. A judiciary which is not independent from the executive and legislature renders the checks and balances inherent in the concept of separation of powers ineffective.

It is a matter of concern that during the eight year period preceding the recent formation of the coalition government in Zimbabwe, the avowed policy of the executive was to appoint as judges to both the Supreme and High Courts, persons known to be sympathetic to its political ideology. In this it has been successful. The Supreme Court soon lost four of its five judges, with its composition being increased to eight; it is now six. The High Court lost eight of its judges, most of who resigned in the face of personal adversity. The vast majority of all the judges, including the Chief Justice, perceiving the unending land invasions as a political and not a legal issue, have gratefully accepted free occupation of large tracts of the most productive agricultural land, expropriated from white commercial farmers. In so doing they have compromised their judicial independence, seemingly pre-judged the legality of the fast-track land programme and associated issues, and seriously breached the rule of law, which they are oath bound to protect and enforce.

Moreover, about two years ago, it was widely reported that the Reserve Bank of Zimbabwe had supplied judges with flat screen television sets, satellite decoders and generators, at no charge. A payment or perquisite accepted by a judge from any source other than the treasury inevitably raises the taint of undue influence. (Political interference with the judiciary was confirmed in the 2004 report to the International Council of Advocates and Barristers, entitled 'The State of Justice in Zimbabwe', by a team of eminent jurists, chaired by Stephen Irwin QC. At the end of October 2009, Desmond Browne QC led a fact-finding mission to Zimbabwe on the ability of lawyers and judges to exercise their professional duties independently. The report is due shortly.)

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