ONCE viewed as a progressive bench and recognised for its independence in interpreting the Bill of Rights to ensure protection of civil liberties, Zimbabwe’s judiciary is coming under increasing attack from the executive, leaving the rule of law compromised.
By Elias Mambo
Yet High Court judge, Justice Priscilla Chigumba’s ruling on Wednesday saying government’s ban on street protests by opposition parties and civic groups represented a “brave judgment that asserts the independence of the courts (judiciary)” as lawyer Tendai Biti said.
At a time the country is experiencing rising social discontent against President Robert Mugabe’s misrule, the judiciary has been caught between a rock and a hard place in the discharge of its constitutional duties.
Last week, Mugabe accused court judges of being reckless in allowing recent anti-government demonstrations that later turned violent. He has since responded by banning all protests in Harare, for two weeks from September 2 to 17, through Statutory Instrument 101a of 2016.
But Chigumba ruled the ban invalid.
“Our courts, our justice system, our judges should be the ones who understand even better than ordinary citizens.
They dare not be negligent in their decisions when requests are made by people who want to demonstrate,” Mugabe said.
“To give permission again when they are to the full knowledge that it is going to be violent or (there is) probability that there is going to be violence is to pay reckless disregard to the peace of this country,” he said.
Legal experts say Mugabe is in flagrant disregard of section 59 of the constitution which stipulates: “Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully.”
Most protests have been peaceful. Police aggression and brutality have largely provoked violent clashes with protesters.
Analysts say Mugabe’s move to silence and control the judiciary deals a blow to the letter and spirit of constitutionalism which he should uphold as head of state.
The Law Society of Zimbabwe has condemned Mugabe’s attempts to intimidate judges, saying his utterances “bode ill for the independence of the judiciary”.
“Such threats from the head of the executive bode ill for the independence of the judiciary. It constitutes unacceptable intrusion by one arm of the state into the domain of another,” the Law Society said.
“We believe that any criticism of the judiciary should be measured, tempered, based on fact and law. Any attack on the judiciary should not be actuated by malice and culculated to bring the institution into disrepute,” the Law Society added.
Mugabe has, however, a long history of violating the principle of separation of powers through overbearing and authoritarian actions.
As early as January 1982, Mugabe, then prime minister, threatened to take extra-judicial actions after questioning why courts acquitted the York brothers (farmers) who were charged for possessing arms.
“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 measures we shall take are measures which shall be extra-legal,” Mugabe said.
By taking extra-legal measures, he meant violating the constitution and disobeying the law when politically expedient or convenient. That happened afterwards, especially during the Gukurahundi era in the early 1980s.
At the height of the chaotic and bloody land invasions after 2000, the judiciary pronounced judgments that were not favourable to the executive as it sought an end to illegal grabbing of commercial farms.
One landmark human rights decision on the land reform programme stated that farm invasions were unlawful and an affront to section 16 of the constitution.
The Supreme Court ordered the executive to take necessary measures to ensure that invasions were stopped. It further requested the executive to furnish a plan of action for the land reform programme. The ruling angered the executive and, as a result, the Supreme Court judges were subsequently hounded out of office in a plot hatched by the executive.
Addressing Zanu PF supporters at the party’s congress on December 14 2000, Mugabe dismissed the judiciary with reference to the land issue.
“The courts can do what they want. They are not courts for our people and we shall not even be defending ourselves in these courts,” he said.
The muzzling of the judiciary has continued despite the fact that the Constitution of Zimbabwe stipulates, in line with international best practice, that no person or organ of state may interfere with the functioning of the courts.
In addition, the constitution provides that judges should decide cases impartially based on the facts of the case and their understanding of the law and without any direct or indirect influence on their decisions.
Despite a High Court order allowing the demonstration to go ahead police, moved to thwart the protest, resulting in running battles that turned violent as they fired teargas and beat up people indiscriminately in the city of Harare.
Constitutional law expert Lovemore Madhuku said Mugabe’s threats on the judiciary were uncalled for.
“That was a clear demonstration of abuse of power by the president. It cannot be allowed to happen in any democracy,” Madhuku said.
“However, that should not stop the judiciary to abide by the constitution. That is the reason why the constitution states the independence of the judiciary because threats from politicians will always be there. The judiciary should stick to the constitution and the law despite the threats,” he said.
Constitutional law lecturer Alex Magaisa said the Mugabe’s threats are meant to remind the judiciary of the hand that feeds them.
“The bulk of the judiciary has been compromised since the early 2000s. Only a few judges have been brave enough to stand their ground. What Mugabe is simply doing is to remind judges to behave or they will be excluded,” Magaisa said.