By Tawanda Hondora
SINCE the government illegally shut down the operations of Associated Newspapers of Zimbabwe, three judges have ruled that the ANZ be allowed to resume the publication of the Daily News an
d the Daily News on Sunday. On each occasion the government has unlawfully and contemptuously refused to abide by the court judgments.
In fact, instead of using scarce manpower to police the streets, the government maintains a constant guard at the ANZ premises.
Information minister Jonathan Moyo is reported in the Herald of December 20 as saying the judgment by the President of the Administrative Court, Judge Selo Nare, would not be enforced because the Media and Information Commission (MIC) appealed against an earlier ruling made in favour of the Daily News by Judge Michael Majuru.
According to Moyo and MIC lawyer Johannes Tomana, the appeal suspended Judge Mujuru’s order in favour of the Daily News and therefore the newspaper could not resume publication. This is despite the ruling by Judge Nare that his order was effective notwithstanding the appeal filed by the MIC.
Moyo and his ilk are making a mockery of our judicial system. The government’s attitude vindicates those that say there is no longer any rule of law in Zimbabwe.
Instead of appealing to the Supreme Court against Judge Nare’s order, Moyo proclaimed that the order was academic and would therefore not be enforced.
Since he is an unashamed know-all and more so because he is not a lawyer, one may forgive Moyo for not understanding the complexities of the law. It is however utterly disgraceful for a lawyer such as Tomana to identify with, if not encourage his client to so blatantly violate a fundamental bedrock of our legal system.
The government has no power to decline to enforce an order of a court even if it is of the honest opinion that the judgement is academic. Within the concept of separation of powers it is the judiciary’s role to interpret the law and not the government’s. Even Moyo should know that with his background in academia. It is one of the most basic principles of a modern legal system that it is not up to the litigants to a dispute to unilaterally decide the propriety of a judgment and decide whether or not it is enforced.
The government should have appealed to the Supreme Court against the recent judgment by Judge Nare.
Section 31G of the Constitution obliges all ministers to swear an oath undertaking that they would be “faithful and bear true allegiance to Zimbabwe and observe the laws of Zimbabwe”. By contemptuously undermining the authority of the judicial system and disregarding the law as stated by the Administrative Court, Moyo violated the Zimbabwean Constitution.
Even if a judgement is palpably wrong, the executive is duty bound to enforce such judicial order, until such time as the judgement has on appeal been set aside by a superior court.
Section 31H (2) of the Constitution states that it “shall be the duty of the president to uphold this Constitution and ensure that the provisions of this Constitution and all other laws in force in Zimbabwe are faithfully executed.”
Either intentionally or as a result of gross dereliction of a constitutional obligation, it is utterly distressing that President Mugabe, spurning his obligations under section 31H (2), has not censored his ministerial appointee, or ensured that the country’s laws are enforced.
In this context, Mugabe’s protestations that Zimbabwe had not done anything to warrant its suspension from the Councils of the Commonwealth appear ridiculous. Additionally, the Constitution does not allow President Mugabe or his lackeys like Moyo to ignore court judgments, and as such in this context their empty pleas that there is rule of law in Zimbabwe is at best laughable.
This is not the first time the government has refused to obey court orders, and in this context the relevance of lawyers and judges, if they decline to obey the government’s bidding, is questionable. How does one fight against the British or white commercial farmers by undermining and disregarding the provisions of one’s supreme law, the Constitution? The logic is simply bewildering.
What is worrying about the actions of President Mugabe’s government and Moyo is the effect such decisions have on both local and foreign investment in the Zimbabwe economy.
Who would invest in a country where court orders are routinely ignored, where property rights do not exist, and private investment is always under threat of acquisition? Whoever told Moyo that an appeal suspends the judgment against which the appeal has been filed should have also told him that this was only a general rule which was not applicable to all courts of law.
The opinion that Moyo penned for publication in the Herald of December 20 reveals a shocking level of naivety about a highly technical aspect of the law.
There is a general rule of practice (mark I did not say a rule of law) that a judgement of the High Court (or what is also known as the superior court) is suspended once one of the litigants files an appeal against the judgment. The High Court is also known as a court of inherent jurisdiction. This means that the High Court can hear any matter, civil or criminal in nature and can control the execution of its judgments.
All other courts however, including the Supreme Court and the Administrative Court are not courts of inherent jurisdiction, but obtain power from specific statutes. These courts cannot exercise power outside the enabling statutes. It also means that these courts cannot establish rules of practice such as the practice that a judgment is suspended once an appeal has been filed.
It is only judgments of the High Court which as a result of that Court’s rule of practice are suspended once an appeal has been filed. Unless the enabling statute expressly provides to the contrary, judgments from all other courts remain effective notwithstanding an appeal.
The Administrative Court Act created the Administrative Court, and this enactment does not state that judgments emanating from the Court are suspended when an appeal has been filed.
This means that a judgment of the Administrative Court remains effective notwithstanding the filing of an appeal by any of the litigants. This also means that Judge Majuru’s judgement (as that of Judge Nare) authorising the Daily News to continue operations remains valid despite the appeal filed by Moyo’s MIC.
The actions of Moyo and the MIC, apparently on the advice of Tomana, should be of concern to the entire legal profession and Law Society of Zimbabwe. Moreover in a normal democracy, the actions of the erstwhile professor should have occasioned the ire of the Chief Justice, the Minister of Justice, Legal and Parliamentary Affairs, and the Attorney-General.
The actions are disturbing because Moyo has undermined confidence in our judicial system by stating that he will obey a court judgment only if he thinks it is valid, correct and not academic.
Tawanda Hondora is a Harare-based lawyer and human rights activist.