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Judge's utterances erode public trust
Comment, The Zimbabwe Independent
January 13, 2006

http://www.theindependent.co.zw/news/2006/January/Friday13/comment.html

EVERY January the Zimbabwe judiciary offers us insights into its political and social perspectives. It is common practice at the traditional opening of the judicial year that senior jurists lay out their viewpoints on issues affecting their work. This is an opportunity not only to address administrative issues but to also pronounce standpoints of judicial activities to safeguard judicial integrity.

Last year Chief Justice Godfrey Chidyausiku sought to preserve judicial integrity and independence when he pointed out that the courts should deal decisively with corruption in the private, public and judicial circles.

We concurred at the time with Chidyausiku that corruption was a threat to judicial integrity but also warned that the politicisation of the bench was an equally disfiguring blemish.

This week Judge Maphios Cheda, opening the judicial year in Bulawayo, presented us with the judiciary's views on the subjects of human rights and freedom of expression, especially where it involves speaking out against the government.

In an address to a gathering of fellow judicial officers, Cheda expressed his irritation at law firms which he said did not fight for the liberation of this country but were now at the forefront in criticising government for human rights violations.

"It is some of these firms which are now in the forefront in singing very loudly about human rights violations which they ignored during the war," said Cheda.

"Instead, some of their partners and professional assistants chose to fight against blacks while they were aware that they could have refused to fight in this unjust war on the basis of being conscientious objectors."

We have heard similar remarks before being uttered by political animals, which makes Cheda's standpoint worrying. We have questioned the ruling Zanu PF government's understanding of freedoms and rights: that because the party liberated this country, it is the custodian of all liberties and choices and that it has the sole right to dispense these rights to us. Those who defended the colonial system are perceived as enemies of the state who have no right to raise human rights issues.

Cheda's statement appears to have been mined from this same vein of political patronage which in 1983 Chidyausiku, then attorney-general, spoke strongly against when he said: "I don't think it is desirable that we should have a puppet judiciary. We should have an independent judiciary rather than one that panders to the wishes of government."

Nearly 20 years later, at a judicial conference in April 2002, Chidyausiku, now Chief Justice, quoted from an address given by Mrs Justice Denham of the Supreme Court of Ireland: "Judicial independence is a precious jewel of democracy, to be guarded and cherished for the benefit of the people it serves. It is a jewel of the state. It is fundamental to democracy and the rule of law that the judiciary be strong, to withstand pressure from any quarter."

He added: "Yet the judiciary should be of their times and take account of the changing society within which judges hold office, while retaining the core principle of their independence. … The judiciary should absorb the light from the society it serves."

We believe that the judiciary should not absorb any "light" from politicians because it becomes a willing tool of the executive in its quest for totalitarian rule via populist posturing.

When the independence of the judiciary in Zimbabwe has been subverted by the executive, it can no longer be trusted to be the guardian of people's liberties.

But government does not mind having the judiciary fighting in its corner. We recoiled with horror three years ago when Justice minister Patrick Chinamasa in 2001 warned that judges should not behave like "unguided missiles".

"I wish to emphatically state that we will push them out…The present composition of the judiciary reflects that the country is in a semi-colonial state, half free, half enslaved," he said.

Chinamasa will be encouraged by Cheda's statement. A judicial system that gets praise from government and is pampered with gifts such as land - that can just as easily be revoked - is in danger of losing public trust. It ceases to be a bastion of people's rights and liberties against the excesses of the executive.

The hallmark of any respected judiciary is its ability to be firm in the face of political pressure. But that can only be achieved if there is an open system of nominating jurists. This eschews a process where candidates are most likely to come from the circles of influence that already dominate political and institutional life.

Cheda's comments put the judiciary under suspicion and the rulings of judges will now be analysed in the context of his utterances. As if the country had not seen and heard enough from a pliant judiciary, its judges have once again invited public scorn and clearly deserve a robust response from the legal community.

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