LAST week’s arrest of Attorney-General Sobusa Gula-Ndebele on allegations of abuse of office represents an ongoing attack on the judiciary by the
executive that started in 2000 in a bid to undermine its integrity, regional legal experts have said.
Gula-Ndebele was arrested for allegedly meeting fugitive former NMBZ Holdings deputy managing director James Mushore who was on the police wanted list on allegations of externalising foreign currency.
Gula-Ndebele is alleged to have assured the banker that he would not be arrested if he returned to Zimbabwe from self-imposed exile in Britain.
The AG’s arrest was, however, described by law experts as “unconstitutional, unprocedural and unthinkable” in any democracy.
The experts said Gula-Ndebele’s arrest calls into question the independence and integrity of the country’s judiciary.
In separate interviews with the Zimbabwe Independent, legal experts expressed concern over the government’s continued interference with the judiciary and harassment of lawyers in the execution of their duties.
They said the deteriorating situation in Zimbabwe needed the urgent intervention of regional and international institutions through concerted efforts of all stakeholders.
Speaking on the sidelines of a symposium on the Rule of Law, Human Rights, Constitutionalism and the Constitution-Making Process in the Sadc region held in Harare last week, Justice George Kanyeihamba, who sits on the African Union Court on Human and Peoples’ Rights and the Supreme Court of Uganda, said it was time the international community responded decisively to the Zimbabwe crisis.
“In as much as there is respect for the so-called sovereignty of individual states, it has emerged that political leaders are abusing their offices by deliberately enacting laws and undermining decisions of the judiciary which has the mandate to interprete these laws,” Kanyeihamba said.
“We have learnt with grave concern about how in some cases the judiciary in Zimbabwe has played its role and issued court orders which have been ignored by the state. The worst cases have been reports of intimidation, arrest and beating of lawyers in the course of their duties.
“I feel it’s time bodies likes Sadc, the AU and United Nations organs should respond by enforcing international standards and statutes.”
He emphasised that this could only be achieved through continuous empowering of the general populace through awareness programmes by the media and civic organisatons.
George Kegoro of the International Commission for Jurists (Kenya), who led a fact-finding mission to Zimbabwe following the arrest and assault of lawyers by police earlier this year, said his organisation had since submitted a report on Zimbabwe to the African Union and the United Nations.
“Our coming here was to show our solidarity with our counterparts in the legal fraternity who have been subjected to harassment by state agents,” Kegoro said.
“It is only through such efforts that we can push for international intervention. The Sadc initiative to try and resolve the political impasse in Zimbabwe, which is being led by South African president Thabo Mbeki, is one example of results of continuous lobbying.
“Although the adoption of Constitutional Amendment No 18 by the two major political parties has left out the civic society and the general populace, it is a step in the right direction towards resolving the political problems and the same can be done with the problems facing the judiciary.”
Professor Fredrick Ssempebwa, the past- president of the East African Law Society, said there was need for African states to adopt peer review mechanism at regional level to ensure checks and balances on fundamental issues.
“As long as individual states are left to do their own thing under the guise of so-called sovereignty and territorial integrity, our brothers and sisters in some countries like Zimbabwe will continue to be on the receiving end,” said Ssempebwa.
“The Sadc tribunal should be strengthened through ratification by member-states to provide checks and balances on certain decisions by the judiciary, which may be influenced by politicians.
“We have an effective regional tribunal in East Africa which can review certain cases. This was adopted and ratified by political leaders and this has helped to ensure compliance by individual governments with court orders and providing recourse to aggrieved parties.”
South African Black Lawyers Association president Bonginkosi Matshazi said Sadc leaders should be vigorously engaged to adopt the proposed Sadc constitutional framework to ensure protection of the judiciary in member-states.
“It is the abuse by politicians in crafting the supreme laws of the countries which has seen our friends in Zimbabwe being subjected to continued harassment by the executive. We need to push for a common legal framework on fundamental human rights, particularly the need to uphold the separation of powers among state institutions,” said Matshazi.
The Law Society of Zimbabwe and Zimbabwe Lawyers for Human Rights filed a High Court application seeking an order that the Police Commissioner and members of the Zimbabwe Republic Police be prohibited from hindering, obstructing or taking any action which hinders legal practitioners from gaining access to their clients and carrying out their lawful duties.
The applicants are also seeking an order that the commissioner causes an investigation to be conducted into the criminal conduct of members of the force who assaulted them and were also contemptuous of court orders.
The two bodies are also seeking a declaration of rights due to lawyers under domestic and international law which they allege were violated by the ZRP.
With reference to the arrest of Gula-Ndebele, University of Zimbabwe law lecturer and National Constitutional Assembly chairperson Lovemore Madhuku said in terms of the Constitution of Zimbabwe the AG had the exclusive powers to determine whether or not to prosecute an accused person.
He said if the police believed Gula-Ndebele committed an offence, they should have instituted proceedings for his removal from office through the president, before arresting him.
Gula-Ndebele’s arrest is believed to be political as he is allegedly linked to the Joice Mujuru faction of Zanu PF which is believed to be making efforts to wrest power from President Mugabe.
The executive’s interference with the judiciary intensified at the inception of the fast-track land reform programme in 2000 when members of the High Court and Supreme Court bench were forced to resign, mainly due to non-compliance with court orders by the state.
In 2002, war veterans openly attacked court decisions on applications by former white commercial farmers and gave judges ultimatums to resign.
Mike Moyo, then deputy chairman of the Harare province of the Zimbabwe National War Veterans Association, issued a statement condemning the judges which read: “Time is up. The judiciary must go home or else we will chase them and close the courts indefinitely until President Mugabe appoints replacements.”
Chief Justice Antony Gubbay was harassed and intimidated in his chambers.
This was after the Supreme Court made an order with the consent of government acknowledging that land resettlement through unlawful invasions contravened property rights enshrined in the constitution.
The conflicts eventually led to the resignation of Chief Justice Gubbay, Justice James Devittie, Justice Ishmael Chatikobo and Justice Micheal Gillespie.
In February 2005, Justice Fergus Blackie faced a judicial inquiry for allegedly convening what was dubbed a kangaroo court in Nyamandlovu outside Bulawayo at night. He set free commercial farmers arrested hours earlier by the police.
Blackie was suspended while a three-man tribunal was set up to investigate his conduct.
However, he was found not guilty of serious misconduct and President Mugabe later revoked his suspension and he resumed his duties.
In September 2002, Blackie was arrested on charges of breaching the Prevention of Corruption Act or alternatively defeating the course of justice following his alleged improper handling of a case involving a white woman.
However, in July 2003, the state withdrew obstruction of justice charges against Blackie who later resigned.
Following the resignation of previous members of the High and Supreme Court benches, a new team led by Chief Justice Godfrey Chidyausiku was appointed.
The current benches have also made a number of rulings which have been ignored by the police and other state agents, making a mockery of the role of the judiciary.
The recent arrest and assaults of lawyers Beatrice Mtetwa, Harrison Nkomo, Alec Muchadehama and Andrew Makoni, among others, while in the course of their duties and the harassment of staff from the AG’s office accused of acceding to bail applications by opposition MDC members has cast a dark shadow on the independence of the judiciary in Zimbabwe.
The award of farms to judges has raised questions about their ability to make impartial rulings in cases involving land or the powers of the state.