THE accusation by High Court judge Erica Ndewere, who has been suspended for alleged misconduct, that Chief Justice Luke Malaba is victimising her for granting bail to two prominent politicians against his orders, has brought the country’s judiciary into sharp focus as doubts continue to swirl over its independence.
The High Court judge is facing allegations of gross misconduct in the performance of her duties, but she accuses Malaba of trying to fix her for defying his unlawful order in cases involving bail for former Tourism minister Priscah Mupfumira and MDC Alliance vice-chairperson Job Sikhala. The fallout is seen as evidence of the long held belief that the judiciary is compromised and is subject to the interests of the executive.
Last month judges wrote a letter to President Emmerson Mnangagwa complaining of interference in the discharge of their duties by Malaba.
“What is repeated in the public domain and on social media about the capture of the Judiciary is no longer fiction or perception, it is in fact reality,” the judges wrote to Mnangagwa.
“At the superior courts, it is an open secret that judges no longer enjoy any respect and that administrative staff now spy on judges and report to the various registrars, who in turn make reports to the Judicial Service Commission secretariat for onward reporting to the Chief Justice.”
Chief Justice Malaba, the judges alleged, is interfering with judgments by ordering judges to rewrite judgments, adding that no judgment is passed without his approval. Government has argued that it is not a witch hunt but a process to weed out corrupt elements within the judiciary.
Although government dismissed the letter, which was signed off with the words “your long suffering judges” and copied to the Zimbabwe Anti-Corruption Commission and the Attorney-General Prince Machaya, it has added traction to widespread accusations that the judiciary in Zimbabwe is captured by the executive and amplified calls from various quarters for Malaba to resign.
The belief that the judiciary is captured was further fuelled earlier this year when Malaba issued a practice directive in the form of a memorandum addressed to the Supreme Court, High Court, Labour Court and Administrative Court of Zimbabwe ostensibly to address “concerns raised about the manner in which judgments are handled after being handed down”.
“Before any judgment or an order of the High Court or Labour Court is issued or handed down, it should be seen and approved by the head of court division,” Malaba directed.
This prompted scathing criticism from the Africa Judges and Jurists Forum (AJJF) who described Malaba’s edict as unconstitutional and a threat to judicial independence.
“It (directive) needs to be totally revoked as it has no place in a modern constitutional democracy governed according to separation of powers,” AJJF secretary general Martin Okumu-Masiga said in a statement. “It amounts to one of those unusual situations where the threat to judicial independence is potentially intra the judiciary and not external which is highly regrettable.”
Malaba withdrew the directive, but doubts over his impartiality continue to linger.
The confidence in the judiciary’s independence has also been diminished by the efforts of Mnangagwa’s government to increase its grip on the third estate through amending the 2013 constitution. Through the Constitutional Amendment Bill No 2, the process of public interviews in the selection of judges and the Prosecutor-General, which was a key tenet of the 2013 constitution, will be removed. It is viewed as an attempt by Mnangagwa to reduce accountability that such public interviews bring and make the selection process opaque.
This clause will also make the judiciary beholden to the executive and make a mockery of the principle of the separation of powers between the country’s two pillars.
The judiciary has been reduced to a weapon used to attack those who fall out of favour with the executive according to political analyst Tawanda Zinyama.
“The judiciary needs to be able to make its own decisions without political interference,” Zinyama said. “The judiciary is now a political weapon being used to deal with those who do not toe the line of the ruling class. Judges are being used by political actors. We have seen the petition of concerns raised by judges of not being given space to exercise their independent decisions which is very unfortunate. There is no doubt that the judiciary is captured.”
However, political analyst Eldred Masunungure contends that there is no concrete evidence that the judiciary is serving at the whims of the executive.
“The question to ask when it comes to the tribunals against judges is whether it is a process by the Chief Justice to clean the stable or drain the swamp or a dirty game in the judiciary,” Masunungure said. “We do not have definitive answers on whether the judiciary is captured, but these are questions which are worth asking.”
The independence of the judiciary has come under scrutiny when it comes to decisions made against politicians in the opposition. Among the many cases, the 2002 presidential election petition by late Morgan Tsvangirai stands out.
The court application by the then opposition leader, who contested the result which declared then President Robert Mugabe the winner of that election, is still pending 18 years later. The petition was briefly heard by High Court Judge Ben Hlatshawayo before being put on hold, never to be resumed again.
Zinyama says that there is need for the judiciary to be independent for it to be deemed credible and not just as a tool for political gamesmanship.