‘Judiciary weak on enforcing rule of law’

The High Court of Zimbabwe.

The High Court of Zimbabwe.

“I WILL not be barred from working with the war veterans by a court order because there was no court during the liberation struggle to solve our problems. I follow court proceedings and have my own lawyers, but in this case I will not waste my money. I am not insane, I will continue to serve war veterans because in this case they want me to serve them.”
This was Manicaland Provincial Affairs Minister, Mandiitawepi Chimene’s defiant response to High Court judge, Justice Happias Zhou’s recent court order barring her from masquerading as leader of the Zimbabwe National Liberation War Veterans’ Association (ZNLWVA), after the association’s leadership led by embattled former war veterans affairs minister, Christopher Mutsvangwa, dragged her to court for causing mayhem in the body.
Chimene’s contemptuous attitude towards a court order follows that of Local Government, Public Works and National Housing Minister, Saviour Kasukuwere, who has ignored a High Court ruling ordering him to reinstate Gweru mayor, Hamutendi Kombayi, and 18 of his councillors that the court ruled were illegally dismissed in August last year.
At the time Bulawayo High Court judge, Justice Nokuthula Moyo, ordered Kasukuwere to re-instate the Gweru city fathers, the boisterous ZANU-PF secretary for the commissariat made it clear that he was not going to comply with the court order and he did exactly that.
Last week, Mines Minister Walter Chidhakwa, was being accused of contempt of court for allegedly failing to comply with a court order demanding that government allows one of the mining firms in the noisy Marange diamond fields access to its property.
Chimene’s Masvingo counterpart, Shuvai Mahofa, last year did exactly the same thing when she forcibly evicted 22 families with a valid court order protecting them from eviction, from Chomfuli Farm on the outskirts of Gutu-Mupandawana Growth Point, replacing them with soldiers from the 4,2 Infantry Battalion.
Human rights groups and legal experts say failure by the judiciary to take a firm stance when members of the Executive wantonly defy court orders, mock the judiciary or simply ignore seemingly unpalatable provisions of the Constitution, threatens the rule of law in Zimbabwe.
Save for last year’s shock conviction of the country’s now embattled Prosecutor General, Johannes Tomana, which saw him being slapped with a 30-day jail term for defying repeated court orders to issue certificates allowing private prosecution in cases his office had refused to prosecute, the judiciary generally does not follow up on cases where valid court orders would have been defiantly ignored out of existence.
Worried legal experts this week told the Financial Gazette that this does not bode well with the rule of law — a sine qua non for a functional democracy — as it only serves to foster a culture of impunity among members of the Executive arm of the State. They warned that, if unchecked, this could result in members of the public losing confidence in the country’s judicial system altogether.
Zimbabwe Lawyers for Human Rights (ZLHR) programmes manager, Dzimbabwe Chimbga, whose organisation has for years expressed concerns over this growing trend of rude disregard of the law, said this is so because Zimbabwe continues to gravitate towards the rule by law after the collapse of the rule of law.
“We have a Constitution, but no constitutionalism,” Chimbga said in an interview.
“There is a difference between the two. One (the Constitution) is a legal document, a supreme law of the land, which can be just that…a piece of paper. The other (constitutionalism) is a culture and behaviour, which is what we want and that is what we do not have in this country.”
United Kingdom-based Zimbabwean law expert, Alex Magaisa, said the continued defiance of court orders by members of the Executive in Zimbabwe only serves to show how lowly they regard the importance of the rule of law.
“It just goes to demonstrate the contempt with which they treat the law and the courts of law,” Magaisa said. “But the courts themselves should stand their ground. They have the power to hold a person in contempt and to send them to jail for it. If they can’t do it then no one will help them,” Magaisa said.
He said if the judiciary gets firm on dealing with members of the Executive that make a hobby of trashing court rulings, this habit would come to an end. He said there were only a few cases in the past in which charges of contempt of court have been made against political heavyweights in the country and in almost all of them, the punishments have been too light to serve as a deterrent.
“The trouble is none of these cases have actually led to jailing the officials for contempt. Even Tomana’s case was a half hearted effort because the sentence was suspended, which made it a mere threat,” Magaisa pointed out.
In the past, members of the Executive would justify their disregard of unpalatable court rulings by claiming that the orders had been issued by “white judges”, but the trend has continued even after the bench has been “indigenised”, raising question about the Executive’s commitment to the rule of law.
Last year, former judge of the High Court of Zimbabwe, Justice Moses Chinhengo also highlighted the growing culture of disregard of court rulings as one of the major threats to the rule of law in Zimbabwe.
In its outlook for the next five years, UK-based investment research think-tank, BMI Research, also, earlier this year, ranked Zimbabwe a distant number 27 out of a poll of 48 African economies in terms of competitiveness, citing the perceived absence of the rule of law in Zimbabwe as one of the factors that made the country a high-risk destination for both foreign and local investment.
Several other researches have also ranked Zimbabwe poorly.
In 1998, after journalists Mark Chavunduka and Raymond Choto — accused of publishing falsehoods prejudicial to the State — were seized by State security agents and held incommunicado for more than a week; the High Court ordered their release three times without success, only for them to be grudgingly released after a fourth court order.
This resulted in the Standard newspaper filing contempt of court charges against then defence minister, the late Moven Mahachi, which charges the minister escaped in 1999, but not his secretary, Job Whabira, who was found guilty, but was only asked to pay the costs that the privately-owned weekly newspaper had incurred in its repeated court applications.
In 2002, when Finance Minister, Patrick Chinamasa, who was at the time the country’s Attorney General, made highly disparaging remarks on what he saw as a very lenient sentence meted by then High Court judge, Justice Fergusson Blackie, on members of an American hunting expedition group that had been arrested in Harare with weapons that Harare authorities described as “arms of war”, Chinamasa was charged with contempt of court and was sentenced to a three months jail term in addition to a fine, but he never served the jail time, neither did he pay the fine.
Instead, Chinamasa who did not even turn up for the court hearing, was shortly promoted to become the country’s justice minister.
As if to add salt to an injury, then information minister, Jonathan Moyo, risking contempt of court proceedings himself, described this moot punishment visited on Chinamasa by Justice Blackie’s as “sinister”.
“There is no doubt that fair-minded and law-abiding citizens will see this judgment for what it is: Outrageous, sinister, highly personalised crusade made by someone who should be packing his bags,” Moyo said. The ruling was one of the last by Justice Blackie after unrelenting political pressure had forced him to resign from the bench.
This was the time when Moyo was making a name for himself from insulting judges and their judgments. In 2000, when Capital Radio urgently sought the protection of the courts against Moyo, who had ordered the seizure of its equipment while the matter was pending in court, the late High Court judge, Justice Ishmael Chatikobo issued an order against the government, but Moyo directed the police to disregard the order on the basis that it had been issued by a “night judge”, in a “night court” which dispensed “night justice”. Justice Chatikobo shortly resigned from the bench.
And nothing ever happened to Moyo, just like many others who made a hobby of excoriating members of the Judiciary.
On March 17, 2000, then High Court judge, Justice Paddington Garwe, ordered the Zimbabwe Republic Police (ZRP) and the ministry of Home Affairs to evict thousands of marauding war veterans and ZANU-PF supporters who had illegally occupied several farms throughout the country as part of the “Third Chimurenga” campaign, but his order, though issued by consent from all parties involved in the case brought about by the Commercial Farmers’ Union — together with dozens others that followed — were simply ignored out of existence by government.
The common excuse given by the ZRP, when it refuses to enforce court orders, is that it does not have the necessary manpower to enforce the judiciary rulings. Ironically, the same force that is purportedly thoroughly bereft of manpower is ever ready to descend heavily on any opposition gathering that it would have denied clearance to conduct peaceful protests, citing the rule of law.
Only last month, riot police pounced on a gathering of disgruntled war veterans who had decided to protest against what they regarded as unacceptable insults against them by one of the factions in ZANU-PF.
In June last year, the police disrupted a peaceful march by vendors who were protesting against their planned eviction from the Harare Central Business District.
In 2002, it took the ZRP a record five court orders to vacate the offices of the Associated Newspapers of Zimbabwe, while in 2004 it had to take the intervention of the Supreme Court to secure the release of businessman and former ZANU-PF legislator, Phillip Chiyangwa, from nearly a month in police custody on espionage charges. The same applied to human rights activist, Jestina Mukoko, among other cases.
It was a string of such cases that, in 2005, prompted the ZLHR to issue a strongly worded statement describing the defiance of court orders as “an epidemic”.
“Defiance of court orders has become endemic in Zimbabwe and it is an issue that the Chief Justice of the Supreme Court, (Justice) Godfrey Chidyausiku, (then) Judge President of the High Court Paddington Garwe, and (then) minister of justice, legal and parliamentary affairs, Patrick Chinamasa, must do something about if the integrity of the courts and the justice system is to be protected,” ZLHR said in its statement then.
Asked why the Zimbabwean judiciary appears to opt for a mealie-mouthed approach when it comes to dealing with cases of Executive lawlessness, Magaisa said from his experience, this was most likely out of caution than fear, as the Judiciary is doing its best to avoid being seen as belligerent after taking a confrontational attitude towards the Executive arm of the government because when dealing with unscrupulous politicians who have very little to lose, it is the judiciary that usually ends up more discredited.
“To be fair I think the judiciary generally has not been firm even before the bench became indigenised. There is a seeming reluctance to clash with the Executive, especially since the latter is supposed to enforce their orders. The fear is that if they make an order and it’s not complied with, it might show their lack of power,” Magaisa said.
In 1832, when confronted with a United States Supreme Court ruling over the rights of Indian communities that he was unhappy with, a miffed President Andrew Jackson remarked: “John Marshall (then America’s chief justice) has made his decision; now let him enforce it!”
While the courts interpret the law and make orders, those orders have to be enforced not by the same courts, but by the Executive arm of government, the same government whose members might not even be willing to do so, let alone with alacrity.
“That’s why courts tend to avoid pulling the trigger,” Magaisa explained. “The threats normally work though unless someone is stupid and defies. Usually they comply as did Tomana last year.”
newsdesk@fingaz.co.zw

Follow us on Twitter on @FingazLive and on Facebook – The Financial Gazette