BY blatantly threatening judges over a court challenge brought against him and Zanu PF by formerparty heavyweights Didymus Mutasa and Rugare Gumbo, President Robert Mugabe has once again shown contempt for the judiciary.
Analysts say over the course of his 35-year rule Mugabe, 91, has threatened the independence of the country’s judiciary on many occasionsand his latest remarks fall in pattern.
Mugabe, who is livid at the court challenge by his former comrades Mutasa and Gumbo, said: “If there is a magistrate or judge who will want to preside over this matter, then I would like to know where he/she went to school and where he/she got the powers to rule over Zanu PF.”
“I will ask because this matter is not one for the courts. If we say we no longer want you in our party and want you to leave, is that a problem?”asked Mugabe amid cheers from Zanu PF supporters at the official opening of the Africa Chrome Fields chrome smelting plant in Zibagwae (Midlands) last Friday.
He said Mutasa, a former Presidential Affairs minister, was supposed to approach the Zanu PF central committee and then Zanu PF congress to have his grievances solved, not the courts.
Mutasa and Gumbo approached the High Court challenging the legality of the controversial Zanu PF congress held last December which led to their dismissal and demotion former Vice-President Joice Mujuru to an ordinary card carrying member of the party.
Ominously, and as if to leave no doubts over the weight of his threats, Mugabe said people should fear his party because it is a scary institution.
“Musangano wedu unozezesa (Our party evokes fear). So don’t worry about those who take the party to the courts,” he said.
“Courts are supposed to deal with other legal matters which are governed by our constitution and not Zanu PF matters which have their own structures and how these matters need to be dealt with. It is shocking that a man who has been at the helm of the party in a very influential position and knows the party constitution can get this lost.”
Analysts say Mugabe’s utterances threaten the judiciary and legal profession, which in the words of former chief justice Anthony Gubbay, 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,” said Gubbay in a 2009 lecture to the Bar of England and Wales titled ‘The Progressive Erosion of the Rule and Law in Independent Zimbabwe’.
However, Information minister Jonathan Moyo sprang to Mugabe’s defence, absolving him of any wrong-doing by suggesting his remarks did not threaten judges in any way.
“President Mugabe said it would be a case of interference in Zanu PF internal matters that are not legal but are ideological and political should the courts entertain Mutasa’s matter,” he said.
“It is thus shocking that some lawyers who should know better have sought to misrepresent the President’s remarks as a threat to the rule of law.”
Legal experts say Mutasa and Gumbo have a right to take their grievances to court as political rights are enshrined in the national constitution — the supreme law of the land.
According to Alex Magaisa, a constitutional law expert, there are political rights provided for under the constitution which must be protected in so far as members participate in their political parties.
Magaisa quotes Section 67(2) of the constitution which provides that, “subject to this Constitution, every Zimbabwean citizen has the right— (a) to form, to join and to participate in the activities of a political party or organisation of their choice”.
He also made reference to Ramakatsa and Others versus Magashule and Others (2012), a case in which the applicants were members of South Africa’s ruling ANC party who complained that irregularities plagued the selection process of delegates to attend the party’s national conference in 2012.
They argued that their constitutional right to participate in the activities of a political party had been consequently violated.
“The point here is that a member of a political party is perfectly entitled to challenge a political party on the basis that the irregularities and impropriety of its conduct violate his constitutional right to participate in the activities of the political party,” said Magaisa in his analysis of the case which, while not necessarily binding on Zimbabwean courts, could be referred to by judges due to “the shared constitutional and democratic values”.
“Whether or not the matter has merit is for the court to decide but the right of the individual to approach the court and the power of the court to make a determination cannot be contested or denied. It would be interesting to see how the courts handle the matter. But if they refuse to deal with it, it won’t be because they have no power to do so,” Magaisa said.
Another constitutional law expert Lovemore Madhuku concurred with Magaisa saying the courts have every right to hear Mutasa’s case.
He added that the judiciary is still independent and while Mugabe’s remarks appeared calculated to undermine the judiciary, they will not necessarily destroy its independence if the judges take a stance to ignore them and carry out their work fearlessly.
Madhuku noted that politicians will always seek ways to undermine the judiciary but Mugabe’s remarks “present the judiciary with an excellent opportunity to assert its independence”.
And Mugabe certainly has a long history of attempting to stifle the judiciary and undermine its independence during his rule.
This dates back to 1982 when as Prime Minister, he told parliament that “the government cannot allow the technicalities of the law to fetter its hands in what is a very clear task before it, to preserve law and order in the country”.
“We shall, therefore, proceed as government in a manner we feel as fitting; and some of the measurers we shall take are measures which will be extra-legal,” Mugabe added in remarks which subsequently set the tone for police and security forces to disregard court rulings to detain the likes of Dumiso Dabengwa and Lookout Masuku, among others, who were all accused of plotting against government.
During a speech in 2000, Mugabe made comments to the effect that the safety of judges could no longer be guaranteed after rulings against his controversial and chaotic land reform programme.
Gubbay later said “Such attacks show total disrespect for the rule of law and the process of the Constitution which guarantees judicial independence.”
“Judges should not be made to feel apprehensive of their personal safety. They should not be subjected to government intimidation in the hope that they would become more compliant, and rule in favour of the executive. They should not face anything other than legitimate criticism arising from what was done in the discharge of judicial duty.”