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State’s disregard of law a cocktail for disaster

Blessing Zulu

GOVERNMENT’S recent disregard of three court rulin

gs in favour of closed Associated Newspapers of Zimbabwe publications has added to a growing list of judicial orders that authorities have so far elected to ignore. 

On September 17 Justice Omerjee ruled that the police conduct of forcibly occupying the premises of the ANZ and seizing their equipment without a court order was illegal and that there was nothing at law to prevent the ANZ from publishing.

In particular Justice Omerjee ruled that the police have no legal right to prevent the applicant or its employees from gaining access to the premises of the applicant and carrying on the business of publishing a newspaper.

Administrative court judge Michael Majuru on October 24 ruled in favour of the ANZ. The decision was made on the grounds that the Media and Information Commission was not properly constituted and could not in its current composition issue any valid licences.

The MIC had acted outside its authority when it turned down the ANZ application, the judge ruled. He said it was biased, especially through its chairman Tafataona Mahoso, against the ANZ. Judge Majuru ruled that the ANZ should be issued with a certificate of registration.

This ruling was upheld by Judge Sello Nare who allowed the ANZ to carry into effect the judgement of Judge Majuru. He said the order should remain of force and effect not withstanding the filing of any notice of appeal against it by the MIC.

But Information minister Jonathan Moyo said the ANZ could not resume operations. He said the ruling by Judge Nare was “academic” and could not be enforced.

Zimbabwe Lawyers for Human Rights says the government’s tendency to ignore court orders that it didn’t like was shocking.

“In Zimbabwe we have had the executive refusing to enforce certain court orders that are seen to be unfavourable to the state or the ruling Zanu PF party. The executive has also attacked the judiciary openly, quite unprofessionally and unfairly in a number of cases. The government of Zimbabwe however has a history of attacking the judiciary or members of the legal profession each time the executive is unhappy at certain judicial decisions,” said ZLHR.

Movement for Democratic Change secretary-general and constitutional law expert Professor Welshman Ncube said the government’s action was a cocktail for disaster.

“If the government cannot obey its courts, what moral and political right does it have to compel ordinary citizens to obey the same courts? It’s now the law of the jungle?” said Ncube.

Ncube said the ANZ case had left the government exposed.

“The ANZ case is the first clear and unambiguous refusal by the government to obey a court order. This time they cannot change the law to suit their needs. This is a clear attack on the judicial system,” he said.

The chief culprits in disregard for the rule of law are President Mugabe and his Information Tsar, Jonathan Moyo. The two’s utterances in public have been seen to be encouraging the lawlessness that is now the hallmark of the government.

Mugabe’s disregard of the rule of law is legendary. On July 29 1982, the then Prime Minister was quoted as having said: “The government cannot allow the technicalities of the law to fetter its hands in what is a very clear task before it, to preserve law and order in the country…We shall therefore proceed as the government in the manner we feel is fitting…and some of the measures we shall take are measures which will be extra-legal.”

He was referring to a court order for the release of the York brothers who were accused of plotting a coup.

Political commentator and civic rights activist Brian Raftopoulos said the government was disregarding rulings it considered inconvenient.

“The executive now feels that it is supreme and that the judiciary is subject to any executive decisions,” Raftopoulos said.

Apart from the ANZ case, there are at least a dozen other court rulings that the executive has elected to disregard since 1999 when the High Court ruled that the police should investigate the torture of Standard journalists, Mark Chavunduka and Ray Choto at the hands of the army.

When judges in this case complained about the non-compliance by the executive with court orders, President Mugabe is reported to have asked the judges to resign and is quoted as having said the following on national television: “The judiciary has no constitutional right whatsoever to give instructions to the president on any matter as the…judges purported to do. Their having done so can clearly be interpreted as an action of utter judicial indiscretion or as one of imprudence, or as, I regard it, an outrageous and deliberate act of imprudence.”

To date, investigations into the torture of the journalists have run into a brick wall.

In the run-up to the 2000 parliamentary elections in Buhera, two MDC activists Tichaona Chiminya and Talent Mabika were petrol bombed and died. Those alleged to have murdered the two are war veteran Tom Kainosi Zimunya and state intelligence operative Joseph Mwale.

High Court judge, Justice James Devittie, ordered that the record of the case, involving the electoral challenge to the outcome in Buhera North, be sent to the Attorney-General (AG) with a view to a possible prosecution of the alleged murderers of Chiminya and Mabika. The court heard testimony from an eyewitness that Chiminya and Mabika were killed by Mwale and Zimunya. The judge said: “The killing of Chiminya and Mabika was a wicked act.”

Judge Devittie’s order has not been enforced to date despite promises by the AG’s office that it will investigate the matter.

In 2000 the Commercial Farmers Union successfully won a court case against the government to have illegal settlers evicted from farms but the order was ignored. The police claimed they didn’t have sufficient manpower.

Ncube said the government has now perfected the art of defying court orders.

“In the case of the CFU, there were pretensions by the government that it was complying. Later it said it was impossible to comply and the excuse was that there was no manpower. When they ran out of excuses they went on to change the Act,” he said.

The government has also chosen to ignore other High Court rulings and magistrates’ orders compelling it to evict settlers on Roy Bennett’s farm in Chimanimani.

In May 2003 the Chief Immigration Officer in violation of a High Court order deported foreign correspondent Andrew Meldrum.

Other court orders that have been ignored by government include Charles De Kock vs Mike Madiro, Dorothy Kumunda and seven others vs the District Administrator for Chikomba, and Natalie Dube vs the Commissioner of Police and Constable Mabunda.  

Last year Mugabe attacked High Court Judge Fergus Blackie when he ruled that Justice minister Patrick Chinamasa was in contempt of court.

“The government would respect judgements where the judgements are true judgements. We do not expect that judges will use subjectivity in interpreting the law. We expect judges to be objective. We may not understand them in some cases but when a judge sits alone in his house or with his wife and says this one is guilty of contempt, that judgement should never be obeyed.

“I am not saying this because we would want to defy judges. In fact we have increased their salaries recently. We want them to be happy but if they are not objective don’t blame us when we defy them.” 

Blackie was subsequently arrested on spurious allegations of corruption involving a case he was handling. He was detained at Matapi Police station in deplorable conditions. The charges were eventually dropped before plea.

Another High Court Judge Benjamin Paradza was also arrested in chambers and detained in police cells on allegations of corruption. He appealed to the Supreme Court, which ruled that his arrest was unconstitutional. 

ZLHR executive director Arnold Tsunga says such total disregard for the rule of law has negative consequences for the country.

“With an administration of justice system that is not effective and cannot offer real remedies to the aggrieved parties, the rule of law is violated and lawlessness creeps in. The country ceases to be attractive to investors both local and foreign as business confidence reduces,” Tsunga said.

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