BY KUDZAI KUWAZA
THE angry outburst by Justice minister Ziyambi Ziyambi following the landmark ruling by the three High Court judges, rendering null and void the decision by President Emmerson Mnangagwa to extend Chief Justice Luke Malaba’s retirement age by five years, has renewed concerns over judiciary independence.
The ruling was made by Justices Happias Zhou, Helena Charewa and Edith Mushore. The extension of Malaba’s term of office was after the passing of Constitutional Amendment No. 2 which, among other things, gives Mnangagwa unfettered powers to appoint judges and is seen as a ploy to entrench his hold to power and influence the judiciary.
Ziyambi said the judgment against Malaba was a “typical case of a night court, consisting of night judges and night lawyers”.
“With the greatest of respect, we do not agree with the decision of the court for so many reasons, we have already instructed our lawyers to file an appeal first thing on Monday (this week),” he charged.
“We do not understand how the Honourable Justice Zhou insisted on proceeding with the matter after we sought his recusal because he is clearly conflicted.”
Ziyambi claimed Zhou, who read the judgment, was sympathetic to the opposition because he was seconded to the bench by the late former prime minister Morgan Tsvangirai during the inclusive government era.
“They (opposition) accuse us of capturing the judiciary, but what happened is a typical case of judicial capture,” he fumed.
Ziyambi claimed that Western countries were sponsoring local non-governmental organisations to interfere with government activities.
Government has since appealed against the ruling in the Supreme Court.
The Ziyambi outburst has sparked outrage with the Justice minister accused of not only interfering with the judiciary, but also threatening the jurists.
Zimbabwe Human Rights NGO Forum executive director Musa Kika, who challenged the extension of Malaba’s term, wrote to Judge President George Chiweshe, Registrar of the High Court and the three judges who heard the matter, demanding action against Ziyambi.
The Law Society of Zimbabwe (LSZ) said Ziyambi’s utterances were unacceptable.
“We have carefully considered the statement and we are of the view that on the face of it, it was contemptuous of the court that dealt with this matter. A litigant aggrieved by a court decision has a right of appeal and such displeasure must be addressed through an appeal filed at court. A public statement attacking a court of law has the effect of ridiculing the judiciary, thereby, diminishing public confidence in the institution.”
The LSZ described Ziyambi’s attacks on the judges as unfair, unwarranted and unnecessary, especially coming from a minister responsible for justice, who is also a lawyer.
The rabid remarks of Ziyambi are a major concern particularly when it comes to the relationship between executive and the judiciary according to political analyst Eldred Masunungure.
“We have come to a critical juncture in the relationship between the executive and the judiciary and whether the judiciary can excuse autonomy. We wait with bated breath” Masunungure said. “What is happening is not good for the constitutionality of the country. It is neither compulsory nor necessary for the government to take this path, it is incredible.”
Masunungure said the confrontation between government and judiciary has negative implications for the government’s drive to lure investment, pointing out that investors will be concerned over how the country’s supreme law can be mutilated at the whim of political interests.
Political analyst Ibbo Mandaza said the trashing of Mnangagwa’s decision to extend Malaba’s term indicates that there is resistance within the judiciary to the abuse of the bench by the government.
“It appears that the judiciary is not homogenous, it shows that of the captured judiciary there are clear exceptions to it. Younger members of the judiciary have rebelled by protecting the constitution against the assault on democracy,” Mandaza pointed out. “Ziyambi’s rant shows a wounded state. You cannot have a justice minister speaking like that. It is disgraceful. These are the minions around Emmerson Mnangagwa. It is disgusting. Period.”
Late last year, judges wrote a letter to 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.”
Although the 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.
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 the late 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.