Back to Index

Doing justice to farming
Gugulethu Moyo
January 26, 2007

http://www.theindependent.co.zw/viewinfo.cfm?linkid=21&id=9886

BEING a farmer can be a tough business in today’s Zimbabwe. More so if you do it part-time.

For one part-time poultry farmer, the office of a judge’s clerk proved, for a while, to be a prime location from which to sell fresh chickens. The meat would be marketed in the clerk’s office while the farmer worked solemnly in his own office to earn non-farm income from his High Court job.

The predictable traffic of court regulars — high-fee earning lawyers in private practice, government legal advisors, prosecutors, litigants, court functionaries, judges and sometimes witnesses — were a near-captive market. It could have been a profitable enterprise.

That was until lawyers started complaining: they complained to the Judge President until, finally, she put a stop to the burgeoning trade in chicken body parts.

The intrepid part-time farmer in question was a High Court judge; his clerk was doubling as a salesperson; and the lawyers who complained were concerned that the sales activity — which sometimes employed fairly aggressive selling techniques — in the judge’s chambers undermined the proper administration of justice.

Anecdotes of this nature pepper day-to-day life in Zimbabwe’s legal community. One High Court judge, for instance, is said to favour supplementing his salary by doing a bit of roadside marketing: from the courtyard in Harare, he’s often seen selling tomatoes and cabbages out of the boot of his official issue vehicle.

These and other true stories are traded often among lawyers to illustrate the extent of the tie-in between the enormous problems besetting the administration of justice in the country and the ubiquitous involvement by judges in small-scale farming enterprises.

So when Judge President Rita Makarau decried last week in a widely publicised opening-of-the-legal-year speech the parlous state of Zimbabwe’s judicial institutions, which she said was caused by government under-spending on the judiciary, the litany of tales started doing rounds again:

"Well, the government has already taken steps to improve the pay packages of judges," observers said.

"Gono has just approved the purchase of a fleet of 4x 4 vehicles for judges that will be given to judges to help them with their farming activities.

"Those judges who have farms are expected to supplement low salaries with farm income," the story goes.

And herein lies one of the central problems of the administration of justice in Zimbabwe today. When, in 2000, at the start of the Zanu PF government’s instigated agrarian revolution, members of the judiciary allowed themselves to be co-opted into a legally murky land redistribution scheme, the independent viability of Zimbabwe’s judicial institution was lost.

Judges who stood their ground, in those days, and ruled that the executive had violated constitutional protection of property rights and due process were hounded out of office. Many of those who stayed on the job accepted government offers of farms whose legal ownership was subject to litigation in the courts over which they presided. Other judges were reported to have "invaded" farms and installed themselves in the place of previous owners.

Few who witnessed this process can forget the series of nihilistic manoeuvres of that time. President Robert Mugabe and several ministers, prominent among them Justice minister Patrick Chinamasa, took it in turns to condemn judges who ruled against farm acquisitions as "relics of the Rhodesian era".

One High Court judge even joined in the attacks, alleging that Supreme Court justices had pre-decided in their favour all the cases brought by deposed white commercial farm owners. The judge in question, Godfrey Chidyausiku, was later appointed Chief Justice in the fast-track judicial reform process that accompanied the land reform programme.

Rather than defend their turf in the time-honoured triparte schema which lies at the heart of most stable democracies — the separation of judicial, executive and legislative power — many judges took ill-conceived steps that made them look like willing collaborators in unlawful executive action. As many judges of the old bench were pressured to leave office, others jumped in to fill their shoes.

In a radical philosophical shift, a majority of newly appointed judges in the "reconstructed" Supreme Court approved the same farm acquisitions that had been ruled unlawful by their forebears; at the same time many judges became tenants on the newly appropriated farms.

The tenancy arrangements were fragile — defaulting tenants could have their lease withdrawn at any time. Later, this new breed of farmer-judges applied for and accepted concessionary interest rate loans for new farmers.

Judges who refused offers of farms were overlooked in the appointment system and regarded by the establishment as reactionaries. The result has been that the value of stock of the judiciary plummeted.

In a now infamous soundbite, Mugabe warned judges that court decisions that went against government policy would not be enforced. "After all we pay our judges very well," he ruled.

Nothing about the judicial institution has been the same since then. Today, lawyers who would previously have viewed appointment to judicial office as the high point of a career in law would not, for one minute, consider occupying judicial office. And, in recognition of this, the executive seems to have stopped asking the most distinguished in the legal profession to serve on the bench.

Now, it seems that to be appointed to the bench you must be a trusted hand. But another tragic twist that the judicial deal-makers failed to predict was that they would become, as appears to be the case now, some of the least-valued partners in the new political order.

Gone are the days when judges were paid well. Now they "beg for sustenance" and their function "is not valued", as Justice Makarau confessed last week.

Those who took the farms have to juggle judicial and farming roles to try and make ends meet from operating agricultural concerns in a hostile economic climate. Court work is often set aside while judges manage labour-intensive, undercapitalised farming ventures.

So serious are the compromises made that lawyers sometimes remark wryly that one of the hardest legal cases of the day is to figure out whether a judge is wearing their farmer’s hat or a judge’s wig.

It may, therefore, not come as a surprise that the Judicial Service Act, signed into law this week, which in theory introduces measures to secure the financial autonomy of the judiciary by placing the power to determine judges’ salaries and perks in the hands of an independent institution, is greeted with a large degree of cynicism by many in the legal community.

This law won’t change much, lawyers say. Having tied up their independence with so many financial strings, judges are still to solve the hardest case of all: how to, with credibility, cut the strings attached to the agrarian revolution within the judiciary.

* Moyo is a Zimbabwean lawyer who works for the International Bar Association.

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP