Calculated tactic to frustrate fair judges

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THE current vitriolic attacks on Justice Charles Hungwe, mostly through the state media, for alleged professional misconduct, including missing court records and failure to sentence convicted murderer Jonathan Mutsinze, comes as no surprise given Zimbabwe’s polarised political arena.

Report by Wongai Zhangazha

While an inquiry into the matter is still pending, his crime, or the genesis of the sustained attacks, appears to be his decision to grant a search warrant to the Zimbabwe Anti-Corruption Commission (Zacc) authorising the search of the National Indigenisation Economic Empowerment Board (NIEEB) and offices of senior Zanu PF ministers.

Hungwe’s other transgression was to issue a court order for the release of prominent human rights lawyer Beatrice Mtetwa, in a case deemed to have political overtones amid fears of renewed political repression and a crackdown on civil society and opposition groups ahead of crucial elections.

Law experts say Hungwe’s harassment is “symptomatic of a fascist state that doesn’t tolerate judicial officers who come across as being fair and independent-minded, particularly when handling politically sensitive cases”.

They described the attacks as part of several tactics that have been used from 2000 to frustrate and intimidate judges, while undermining judicial independence.

This is defined as an important principle that means a judge has the freedom to make a fair and impartial decision based solely on the facts presented before him/her and the applicable laws, without yielding to political pressure or intimidation.

The attacks, analysts say, are well-calculated to publicly embarrass and denigrate the integrity of judges that do not toe the Zanu PF line.

Tensions between government and the judiciary date back to around 2000, at the peak of the country’s controversial land reform programme, when judges ordered police to evict Zanu PF militants who had invaded white-owned farms in an attempt to enforce property rights. But government accused the judges –– some of them white –– of resistance to land reform, labelling some of them Rhodesian remnants.

Former chief justice Anthony Gubbay was hounded out of office by war veterans, in a move which prominently highlighted the breakdown of the rule of law and the advent of lawlessness and impunity.

In 2003, former High Court judge Benjamin Paradza was arrested for allegedly obstructing the course of justice after making several rulings against the state in a case against the then Harare mayor Elias Mudzuri of the MDC-T, who had been arrested for allegedly holding a meeting without police clearance.

Paradza had ruled police failed to produce sufficient evidence and ordered the release of Mudzuri.

Prior to that in September 2002, Paradza also ordered the release of opposition supporters abducted by war veterans and also struck down eviction notices against white farmers.

Police claimed Paradza’s arrest was a “purely criminal” matter and accused him of trying to influence another judge to release the passport of his French business partner accused of murder.
Paradza, now based in New Zealand, was admitted to that country’s bar in 2011.

In September 2002, High Court judge Fergus Blackie was arrested at 4am and charged with obstructing the course of justice after he sentenced Justice minister Patrick Chinamasa to three months in jail for contempt of court.

The sentence was later overturned on appeal but the judge was further accused of racism and pushed out.

Several other Zimbabwean judges, including Gubbay, Nicholas McNally, Moses Chinhengo, Sandra Mungwira and Michael Majuru, were all forced to resign or retire early for what was seen as their refusal to compromise the rule of law by handing out judgments favourable to the state or Zanu PF.

Esmail Chatikobo was pressured and quit the Zimbabwean bench in July 2001 to join the Botswana High Court. He died in Botswana in 2009.
Deputy Minister of Justice Obert Gutu said an independent and impartial judiciary is the cornerstone of a politically stable and economically vibrant democracy.

He described the recent “savage” attacks on a Hungwe as an example of a state crackdown on independent and fair-minded judges.

“The bizarre attacks on Justice Hungwe should thus be seen in their proper context, that is they are a well-calculated strategy to publicly embarrass, lampoon and denigrate both the person and the professional integrity of the learned judge,” said Gutu.

“By granting a search warrant that was basically going to unmask the looting and kleptocracy behind the so-called indigenisation programme, Justice Hungwe literally stepped on a political livewire. Henceforth, he has become a marked man. The system is convinced that he is anti-establishment.”

Gutu said the system would spare no effort in ensuring that by “hook or by crook”, Hungwe leaves the High Court bench.

“This has happened to other independent-minded judges such as Gubbay, McNally, (James) Devittie, Paradza and many others,” Gutu said.
Human rights lawyer and chairperson of the Zimbabwe Lawyers for Human Rights Andrew Makoni said it was strange the state media propaganda war against Hungwe was ignoring the role of the prosecution in the case involving Mutsinze.

“A judge does not convene a court on his own. In criminal matters it is the state which is the dominus litis (the actual litigant directly interested in the case and its outcome), as they often tout. It was the state which ought to have applied that the matter be tried denovo (afresh) before a new judge if records disappeared,” Makoni said.

“The fact that the role of the state has not been featured betrays the deliberate campaign of harassment of the judge by the partisan public media and their handlers. The role of the AG (Attorney-General)’s Office must also be brought into focus.”

Makoni said Mutsinze was also legally represented and his lawyer ought to have pushed for the finalisation of the matter or retrial.
On night judgments, something Hungwe is also being accused of, lawyers said there was nothing amiss with that as it was not the first time a ruling was passed overnight. In fact they (night judgments) were quite normal as long as the required court officials were present to constitute a competent court of law.

Analysts say Hungwe is a victim of a crackdown on non-compliant judges as he might soon join the long list of casualties knocked off the bench since the renewed judicial purges began.

 

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