While the politicisation of the judiciary is common the world over, including in Zimbabwe, a new phenomenon seems to be developing in this country, particularly fuelled by last week’s controversial Constitutional Court ruling which ordered President Robert Mugabe to proclaim the dates for elections it directed must be held by July 31.
Editor’s Memo with Dumisani Muleya
The ruling, widely criticised and even condemned by some, provoked uproar. While some — mainly those linked to Zanu PF — welcomed it, others, particularly those who suspected the application was sponsored by political forces of darkness, said it was badly flawed.
It must be noted legal and constitutional experts defending the ruling are mainly using sophistry — plausible but misleading or fallacious arguments based on subtle yet unsound reasoning.
I must quickly point out that my good friend Jealousy Mawarire says the application was his, not a dark arts initiative. Critics’ main concerns though were Chief Justice Godfrey Chidyausiku and his six colleagues behind the ruling, misdirected themselves in coming up with the judgment effectively based on a misconstruction and a default amendment of the law, quite apart from mangling and decrypting straightforward provisions in an expedient way when they were not inscrutable. (See Pages 10 and 15).
Although there were no concurring opinions (an opinion by one or more judges which agrees with a majority judgment, but for different reasons), two judges, including Deputy Chief Justice Luke Malaba, offered dissenting opinions.
This left the bench divided. That fallout spilled into society. Even neutrals who ordinarily refrain from publicly expressing their views, joined the fray as judges, legal and constitutional scholars, politicians and interested parties of all stripes, tore at each other.
As politicians fuel dramatic and stirring reactions, Zimbabwe could between now and July 31 be engulfed in political tumult as the combat over election dates, which has been going on since 2011, reaches a denouement.
Mawarire, whatever his motivation, could have by his probably well-meaning actions thrown a cat among pigeons. Although the implications of his successful court application are yet to be fully digested, its consequences on elections in particular, and the courts, judges and political jurisprudence might be far-reaching.
One of the unintended consequences of the ruling might be the advent of serious judicialisation of politics in Zimbabwe. Already, there is a debate about whether judges are mere professionals or political animals.
That question looms large especially taking into account how the executive has dealt with judges, particularly the purging of dissenting ones, over the past decade. The avowed policy of the executive, mainly since 2000, has been to appoint judges sympathetic to the zeitgeist, the spirit and thinking of the time.
The purging and packing of benches, as well as the dishing out of farms and other material gifts to them, was criticised as attempts to compromise the judiciary.
After that, debate about politicisation of the judiciary and now judicialisation of politics in Zimbabwe, has intensified. Some now speak of encroaching juridification, a situation in which judicial actors become dominant, in some cases displacing lawmakers or forcing them to conform to court jurisprudence.
Indeed, courts are becoming major players on the political landscape elsewhere, for instance in Southeast Asia. There have also been cases in the United States and elsewhere. Is this now happening in a major way in Zimbabwe?
If it is, then it must be combated because whatever their backgrounds when they reach the bench, judges, whether they believe in strict constructionism or judicial activism, must put aside personal political and policy preferences, values and attitudes and have allegiance only to the law and facts of the case. I think that’s a reasonable expectation.