Hungwe saga: Judges on the ropes

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YOU know justice is on its way to the guillotine when the executive starts exerting undue political pressure on the judiciary, picking and choosing whichever law they want to obey or defy.

Dwyane Sagomba

As citizens, we should also know we are in deep trouble when this happens because the rule of law is critical in a reasonably free and democratic society.

On as yet to be specified date and period, High Court judge Justice Charles Hungwe will appear before a tribunal over alleged failure to pass a sentence on a robber and murderer convicted in 2003, among other charges.

The judge is at the same time being accused of granting “during the night” — as if that’s unusual — a court order for the release of prominent human rights lawyer Beatrice Mtetwa arrested for allegedly obstructing the course of justice.

The police ignored Hungwe’s court order to release Mtetwa and subsequently the state media went on a propaganda jihad against him, roping in partisan and self-serving political commentators to besmirch the judge, prompting Chief Justice Godfrey Chidyausiku to advise Hungwe of his intentions to invoke Section 87 of the Constitution that will ultimately cause the president to appoint a tribunal to investigate his conduct.

Judges in Zimbabwe operate in a difficult and rather closed framework in which the temptation to respond to media remarks, even deliberate and calculated abuse to tarnish their reputations, is often high although it is practically difficult to react. Defending oneself is not an option available to a judge personally. If a media report is grossly inaccurate, as is the case here, it is only the Chief Justice who has the prerogative to respond. But in the Hungwe case, there was deafening silence from Chidyausiku.

In fact, to the contrary, the Chief Justice inexplicably saw it fit to instigate an inquiry against him.

The patterns of the attacks against Hungwe in the state media appeared to have been systematic and well-choreographed, raising fears there was a hidden political hand at work which was remote-controlled to turn the heat on the judge to force him out. This comes 13 years after at least 10 judges were unceremoniously kicked off of the bench.

Zimbabweans may understandably have everything to fear as we approach the next elections. It simply means four years into Zimbabwe’s inclusive government and more importantly, after a referendum for a new constitution, the leopard hasn’t changed its spots.

It is really incredible the aggressive urge to savage judges — taking advantage of their inability to publicly defend themselves — and haunting them out of the system, hasn’t gone. The most startling fact is that the state is so brazen about it. The executive is blatant in its pursuit of political agendas against judges and undermining the rule of law — the bedrock of any functional constitutional democracy.
Former chief justice Anthony Gubbay’s remarks to the Bar of England and Wales in 2009 are instructive.

“The rule of law is the antithesis of the existence of wide, arbitrary and discretionary powers in the hands of the executive. It is a celebration of individual rights and liberties, and all the values of a constitutional democracy, characterised by the absence of unregulated executive or legislative power,” he said.

“It is a society in which the rule of law is observed, through the mechanism of judicial review. Executive decisions and legislative enactments, outside the framework of the law, are declared invalid, thereby compelling both the executive and the legislature to submit to enjoyment, by the individual, of all rights and liberties guaranteed by the constitution.

“An independent judiciary and legal profession are critical elements of the rule of law. The bedrock of a constitutional democracy is an independent judiciary. A judiciary which is not independent from the executive and legislature renders the checks and balances inherent in the concept of separation of powers ineffective.”

The sustainable measure of a government’s commitment to the rule of law is demonstrated by its respect for the same, which, inter alia, includes respecting the independence of the judiciary, and court decisions.

The seizures of commercial farmlands in 2000 to redress racially-skewed land ownership patterns was executed in a haphazard manner and white judges were instantly viewed as legal stumbling blocks. White judges, just like white farmers, were targeted and haunted out as part of the political cleansing ceremony.

The current issue surrounding Hungwe has nothing to do with land reform. It is more about the politics of survival. The attack on Hungwe de-legitimises government’s previous conduct against white judges. Apart from being black, Hungwe is a war veteran who founded the current war veterans association.

When the same government turn the heat on black judges for making unfavourable rulings, it can only be viewed in the context of politics of survival and self-interest, not national interest.

That was the case before against white judges, although land was the main issue.

On the political Richter scale, the intolerant levels of the state are again now measuring high and scary. The epicentre of such conduct is President Robert Mugabe’s inner circle and Zanu PF hardliners, aided and abetted by the partisan state security sector and a compliant judiciary.

Harassing the judiciary is a demonstration of the lack of commitment by the government to the rule of law as well as appreciation of the separation of powers principle that provides necessary checks and balances.

As we approach the next general elections, Zimbabweans have every reason to be afraid. There is one frightening message around this. It may not even be an attack on Hungwe. Make an example of one judge, and let others feel the pressure and become compliant.

Most judges in Zimbabwe are in their early 50s and above. Besides their judiciary roles, most of them, including Hungwe, are into farming, largely courtesy of Zanu PF. If their farms are unproductive, their fall-back position is the bench.

Judges, like most newly resettled black farmers, don’t have title deeds, but offer letters which the state can withdraw at any time. Most importantly, they can only keep their farms at the mercy and pleasure of the state.

Due to liquidity problems affecting local financial institutions, judges do not have access to finance to turn around their farms. Most use their salaries to fund agricultural production. This puts them in a dilemma. Making a bad political judgment is therefore biting the hand that feeds you. And the consequences are there for all to see. Herein lies the danger: You can lose both your farm and job. If you remain with any one of the two, you will be very lucky.

Judges cannot go back to private practice and appear again before their erstwhile colleagues. Legal ethics do not allow that and this rule also applies in Zimbabwe.

The only fall-back position for haunted-out judges is doing consultancy work, but with the domino effect of world recessionary pressures, there is hardly any consultancy to talk about now. So he who pays the piper calls the tune at will.

Judges may now find themselves reading judgments for their supper, especially if the cases are politically-motivated. With elections just around the corner, Hungwe has been made an example and a chilling warning has been sent to the rest of the judges.

Before, during and after the elections, there shall be dozens of electoral petitions. Some may even centre around the presidential election. Any judge hearing such matters is already bludgeoned into submission by circumstances and prevailing political pressures.

That’s one danger facing Zimbabwe today ahead of the elections.

People will be under siege. Hungwe’s state-sponsored political predicament could be the curtain-raiser. If a judge can be made an example, then what more of ordinary citizens. Politically-motivated offences may be unattractive to justice.

Whoever shall become a victim of politically-motivated arrests in the next few months, his or her cries, may as well remain the biblical cry in the wilderness.

A new political dispensation will require a commission of inquiry into the judiciary appointments, conduct of judges in the past decade to present, and such recommendations that will restore the people’s faith in the judiciary.

There is no significant difference between the judiciary and financial institutions. They are both sensitive and need the confidence of the public.

Any external unorthodox pressures dent their reputations. Banks can twist in the wind and go under should there be a run on deposits. With a pliant and timid judiciary, no one wants to invest in a country in which no justice can be guaranteed if political pressure is applied on their investments. The rule of law is key for political and economic stability.

Currently, any politically sensitive case would require a judge with steel nerves to resist attendant pressure. If you are given to superstition, you certainly need to oil your face with lion fat before wearing those flowing red and grey robes.
Sagomba is a locally-trained lawyer.

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