Comment

Public must hold judiciary accountable


IN an address to a police passing out parade last week Chief Justice Godfrey Chidyausiku raised a number of contentious issues regarding the role of the judiciary. He appeared anxious to defend the independence of the judici

ary at a time when many in the legal profession and civil society have expressed concern about its apparent reluctance to uphold constitutional rights.


Chidyausiku’s speech will have done little to allay those concerns as he took the opportunity to attack fellow lawyers and organisations such as the International Bar Association. He claimed that the land reform programme had triggered an exodus from the bench. The majority of these judges were white, he pointed out.


“The indications are that they left because they were unable to come to terms with the redistribution of land on a more equitable basis.”


What indications was he referring to? His predecessor, Chief Justice Anthony Gubbay, was threatened by Zanu PF thugs at his chambers. The government made no attempt to defend him and indeed encouraged him to go. Other judges may well have felt that their ability to rule in favour of individual applicants or against the government was compromised by both the hostility of ministers and the attitude of the president spelt out over the Standard affair in 1999.


A court-ordered police inquiry into the abduction and torture of two journalists with that paper has yet to be completed. Numerous court orders to prevent arbitrary interference by state officials in land reform have been ignored with impunity. So was a court order instructing the immigration department not to deport Guardian correspondent Andrew Meldrum.


Nobody is alleging that the judiciary is no longer independent because it is black, as Chidyausiku fatuously claims. Let us not forget that Chief Justice Enoch Dumbutshena headed a robustly independent bench of black, white and coloured judges in the 1990s. Critics believe the present bench is not independent because it has demonstrably failed to uphold rights contained in the Bill of Rights of the constitution. The government has trampled on those rights with impunity. The closure of the Daily News is a case in point.


The recent record of judges conceding that violence and selective food distribution were evident in some constituencies in the March poll but that these were insufficient grounds for invalidating outcomes in those constituencies has reinforced the perception that justice is difficult to obtain in the current court system. Delays in handing down judgements in electoral matters have reinforced that view. Never has the axiom “Justice delayed is justice denied” been more apt.


The Chief Justice claimed that “a predominantly black judiciary is likely to share the same perception of the challenges facing Zimbabwe with the majority of the population that happens to be black”.


This is an extraordinary statement. Does he mean all Zimbabweans think alike about land reform? Was that the verdict of the 2000 referendum? Does Chidyausiku seriously think all Zimbabweans endorse the state’s damaging record? And should judges anyway make decisions on the basis of majoritarian claims? The whole point of constitutional provisions is that they should be impervious to populist impulses.
Does Chidyausiku not understand that?


His statement that “the issue of whether or not land should be distributed is a political issue. It is not a legal issue…” may be taken by some to suggest an abdication of responsibility.


While governments are empowered to legislate on land redistribution, judges are expected to ensure legislation does not abridge rights set out in the constitution.


Chidyausiku says he does not accept criticisms that judges and other law officers should not accept land under the land reform programme. Judges and police officers, like all Zimbabweans, are legitimate beneficiaries, he argues.


He is apparently unable to see that a judge who has accepted a land offer from a minister, who is able to withdraw that offer whenever he likes, has his ability to rule against that minister or his government severely compromised.


Chidyausiku concluded his address by saying that he would like to reaffirm the commitment of the judiciary to serve all Zimbabweans without fear or favour. That is precisely what many in the legal community, both at home and abroad, suggest the judiciary appears unable to do. Do land grants not constitute a favour?


We welcome Chidyausiku’s invitation to criticise his judgements. His speech last week certainly suggests he is keen to engage in contestation. His statement, for instance, that the ZRP has become “the model that has become the envy of many, both in the region and abroad”, ignores its record of arbitrary detention, alleged torture of government opponents including MPs and lawyers while in custody, and its recent lawless role in the destruction of people’s homes.


Chidyausiku is of course entitled to his opinions. But the public at the same time has a right to expect the judiciary to be fearless in defence of its rights. Where it has failed in that regard, or where it appears to be doing the state’s bidding, the public needs to hold it accountable.