Lawyers, thinking and political jurisprudence

DISBARRED lawyer Godwills Masimirembwa this week took to the state media to attack Muckraker over the recent analysis of Godfrey Chidyausiku’s term of office as chief justice and his political remarks that President Robert Mugabe — who appointed him to the post under controversial circumstances — was his hero.

MUCKRAKER
Twitter: @MuckrakerZim

Truth be told, Masimirembwa is a jolly good fellow: well-meaning and nice, but certainly not reflective. Hence his headlong plunge into defending Chidyausiku’s record without offering a nuanced analysis of his tenure. One would expect of a lawyer — even if he has been banished from practice for dishonesty or whatever reason — to make an enlightened and enlightening argument on such cases. Lawyers, after all, are trained to think profoundly and rationally by the very nature of their vocation.

Thinking

Yet it is clear Masimirembwa has no serious regard for thinking. It’s not his business. Every normal human being thinks, but thinking has to be trained, disciplined and logical.

In one of the few books ever written about legal thinking, Logic For Lawyers: A Guide to Clear Legal Thinking (1989), the late United States Judge Ruggero J Aldisert explains that the basic purpose of his book is to get you thinking about thinking. Just what is thinking? Recognition of our ignorance of the exact nature of the mental and intellectual process is an important first step in learning how to think, the learned judge reasoned.

Without this preliminary realisation it is very difficult to escape from the various forms of pseudo-thinking we have inherited from the past, the mental processes, or “mush”, that commonly masquerade for thinking, but are not. Pseudo-thinking includes undisciplined mental processes such as haphazard associations, and blind repetition of the thoughts of others.

Aldisert says thinking is in this context not used in its most basic, yet incorrect, sense of everything which goes on in one’s head. Thinking is not just talking to oneself.

Thinking is the particular mental process within our stream of consciousness and verbal chatter wherein a connection is made, an insight is gained into an order behind phenomena, a relationship.

Aldisert defines legal thinking as pondering a given set of facts so as to perceive their connection.

This realisation of a connectedness or unity is what is meant by a “thought”. The thought can be in words, symbols, or numbers, and can also be in geometric patterns, images, tones, colours, movements or kinesthetic processes. The act of making these associations is thinking.

The fragmentation of consciousness — like that of Masimirembwa — makes real thinking all the more difficult. It is very hard to make connections when you are looking at disjointed snapshots instead of a movie. Many of the possible associations will escape you, pass you by.

The ability to reason is critical to the development of our full potential and protection of our social liberties. If you want dictatorship to thrive, you must first kill lawyers and of course journalists!

As the famous remark by the plotter of treachery in Shakespeare’s King Henry VI shows, for independent thinking and tyranny to thrive, the first thing we must do is kill all the lawyers! In countries like Zimbabwe you have to kill lawyers and journalists! Why? Because thinking and holding leaders accountable are now crimes.

This is what one legal analyst wrote in relation to Aldisert’s book. Masimirembwa is clearly a pseudo critical thinker. Pseudo critical thinking is a form of intellectual arrogance masked in self-delusion or deception, in which thinking which is deeply flawed is not only presented as a model of excellence of thought, but is also, at the same time, sophisticated enough to take many people in.

Background

To understand Masimirembwa’s views, which essentially defend dictatorship, patronage and mediocrity, we first need to ask: who is this guy in the first place? This is not an ad hominem response, a reaction directed at a person rather than the argument or position they are pushing and maintaining. It’s background and context. Masimirembwa is a banned lawyer, basically. He has been fighting with the Law Society of Zimbabwe, frantically trying to make a comeback.

Besides, he was chairman of the Zimbabwe Mining Development Corporation at the height of the Marange diamonds looting.

Prior to that he was chairman of the National Pricing and Incomes Commission from 2007. His commission’s price control regime left shops empty and the economy bankrupt at the height of hyperinflation and economic meltdown in 2008. He further served as director of the Minerals Marketing Corporation of Zimbabwe.

Masimirembwa has been at war with the Law Society of Zimbabwe after it distanced itself from his law college, the Zimbabwe Institute of Legal Studies.

He is executive chairman and chief executive officer of the college which is training students.

The Law Society, which represents the views of solicitors, at one time said Masimirembwa did not seek the authority of the society to run such an institution. They even issued a statement on that. That’s the guy in short.

Jurisprudence

Masimirembwa is clearly a fan of political jurisprudence, a legal theory which holds that some judicial decisions are motivated more by politics than by professional and impartial judgment.

He sees the courts as political agencies and judges as political actors and even tools of self-serving politics. Hence his defence of Chidyausiku and his scandalous rulings on land and elections.

It must be said again here that Chidyausiku is a good judge, according to his contemporaries and colleagues.

Muckraker was clear about this from the beginning. He would have made a better judge, only if he had been left to his own devices.

However, it is clear he delivered political jurisprudence on important matters to do with land, politics and elections. Political jurisprudence says judges are human beings — not machines — vulnerable to political influence and to be swayed not just by the political system but also their own personal beliefs.

Well, that is not to necessarily say that judges arbitrarily make decisions they want without due process or paying attention to stare decisis — which means to stand by a decision — the doctrine that a trial court is bound by appellate court decisions or precedents on a legal question which is raised in the lower court.

Chidyausiku and Masimirembwa seem to be fans of political jurisprudence, at least on land, politics and elections.

There is nothing wrong with that, but suggesting judges must pander to the whims and caprices of politicians — not dictates of the constitution and the law — in the name of the revolution and social justice is ridiculous.

On matters of social justice, such as land, judges still have to uphold the constitution even if applying some latitude in their interpretation of the law.

Trampling on the constitution and re-writing the law in the name of social justice is not progressive.

Judicial activism has got to have limits to prevent judges usurping powers of the executive and legislature. Strict constructionism — a legal philosophy of judicial interpretation that limits or restricts discretion — is also not always helpful, but a combination of the two is ideal. This is not what Chidyausiku did on critical issues. There is no room for blackmail and emotional references to the liberation struggle, Zanu PF, Mbuya Nehanda or King Lobengula in interpreting the law.

That’s why Masimirembwa’s argument is not just partisan political rhetoric and nonsense, but anarchic activism.

Family incompetence grounds Air Zim

NATIONAL flag carrier Air Zimbabwe, headed by Mugabe’s son-in-law Simba Chikore in a shameless act of patronage and nepotism, is currently grounded.

For probably the first time, Mugabe was forced, due to deteriorating health, to charter a plane to south-east Asia to seek medical attention, blowing a staggering one million dollars in the process.

The plane chartered by the frail leader all the way from Bahrain is one you would expect business billionaires Richard Branson and Bill Gates to use — not the leader of a country where there is 95% unemployment and which has become a nation of street vendors.

The US$1 million Mugabe squandered seeking medical attention in foreign lands is enough to pay over 2 900 doctors at a rate of US$340 per month.

Ironically, as Mugabe flew out in the dead of night, medical practitioners went on strike demanding not only better pay and working conditions but sundry items such as latex gloves that could make their work easier.

This has shown that incompetence is not only confined to Mugabe, but is also being perfected by other family members such as Chikore into a fine art.

2 Responses to Lawyers, thinking and political jurisprudence

  1. Cde Mzvinavhu(Prof) March 18, 2017 at 4:51 pm #

    Muckraker can be nostalgic on his Rhodesian colonial justice as had been threatened by Gubbay, after Cde Mugabe declared the advent of our land reform, ten years after the Lancaster House provision. Cde Chidyausiku performed better in defense of our land reform than Gubbay would have done. Zimbabwe will never be a colony again.

    • max March 20, 2017 at 4:55 am #

      nxaa. the country is a mess coz of people like Muzvinavhu(clueless landlords/barons) and biased judges

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