Judge not, that ye be not judged’

THE Biblical warning is especially ominous for those who have accepted Robert Mugabe’s invitations to assume judicial office. Those whose decisions displease him quickly feel the heat, but they will be judged also by history, by our children and theirs. They are being judged already by ordinary people seeking fundamental liberties and justice, by well-informed peers and at the highest levels of their profession in world society.

By promising to deal with the Zimbabwe crisis themselves, our neighbours have successfully prevented UN investigations into much of the “domestic abuse” we suffer here. But its Special Rapporteur on the Independence of the Judiciary has been continuously observing and reporting on the situation from the start of our human rights crisis, shortly after we rejected the flawed constitution crafted by Justice Godfrey Chidyausiku’s commission (as corrected of course by Mugabe).

Judges cannot inexplicably refuse people their right to prompt and impartial justice or protection for their other human rights, nor operate secretly under cover of darkness as other appointees can. They must work in open court, always under the eyes of their legal colleagues. They work in an age when the world has come to cherish universal human rights, requires these be upheld to avert rebellion against tyranny, and will treat as international criminals not only those committing serious human rights abuses but also all those who condone or try to conceal these.

And they work in an information age. Even when court records “disappear”, other valid records remain of what happened, spread around in safer places than Zimbabwe’s CIO-guarded courthouses. A judicial record cannot easily be shredded.

The government’s selective arrest of judges may ultimately do it a disservice, bringing home an unintended message — judges are not above any law, local or international.

Much of what has occurred in Zimbabwe’s crisis has been very public. The facts and the law at the relevant times cannot be changed.

Ben Hlatshwayo cannot undo his admission that the Constitutional Commission found that eight of Zimbabwe’s 10 electoral provinces believed a president was “best before 65” and had asked for that age limit in the draft — implicitly excluding Mugabe (then 75). Nor his confession that Zimbabweans also wanted the draft to bring an end to “one man rule” in Zimbabwe. There is no possible hand of evil foreign powers in those findings.

He and now-Chief Justice Chidyausiku cannot undo the fact that their draft did not offer what the people wanted in those respects. Nor the record of Mugabe “correcting” their draft to offer land instead, only to have the people reject this. Clearly, they wanted to end his concentration of power ahead of redistributing land.

Who can doubt the people’s wisdom? How many needy claimants to land, well able to use it, have been sidelined by his distribution of prime lands to weekend farmers and key functionaries — including judges and policemen — instead? How many have died or will die because of the recklessness of his unplanned action after a decade of wasted opportunities and recorded neglect, done in the middle of a food shortage and a raging HIV pandemic?

Zimbabweans have never applauded Mugabe’s claims to “my Zimbabwe”, a land to be governed and parcelled out as he pleased, nor can they accept claims to a sovereignty that permits human rights abuses to be committed with impunity.

The belief that by just not signing it, he could stop the UN’s Convention against Torture and Extra-Judicial killings applying here, is naïve. International law prohibiting state-sanctioned abuses and ensuring a lifetime’s criminal and civil liability “anywhere, anytime” does not depend for its validity on his approval.

Like a present-day King Canute, he is trying to stop a tide of change; to order back a population that appreciates its Independence but is demanding freedom and accountability too. He may be able to sandbag himself for a while, but only by more violations of international law.

Mugabe’s footprints are everywhere around the scenes of the crimes. In April 2000 he proclaimed himself a lone voice, openly stating that the majority of Zimbabweans including his colleagues did not support him on the land issue. His boast that he was now using “power and fists” to do what he wanted anyway was captured on camera by reporters from around the world.

When will his neighbours question why this was needed? For how long will they accept that a leader can beat when he cannot persuade?

“Please me or perish” is the presidential password.

Clearly change is needed, and must come. It remains to be seen what role the judges will play.

We are aware of the difficulties and fears they face. They still operate inside the same system the current Chief Justice was asked to end — appointed solely at the president’s discretion, all strings for suspending, arresting or prosecuting them in his hands. All protection of their persons, families and their records controlled from his office — a constitutional structure which has allowed a lone voice to dominate and openly terrorise all and sundry. While he is required to consult the Judicial Service Commission, his decision is absolute.

However, judges operate also with a written declaration of our people’s fundamental rights and liberties which every judicial officer at every level is obliged by oath and conscience to uphold. They have to heed the warning in the Universal Declaration of Human Rights — if rebellion is to be averted, rights must be protected by law. They must understand the importance of human rights not just to our dignity and economy but to life.

Guardians of all our civil liberties and liberty itself, they will be watched, and judged.

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