HARARE – The last 33 years have produced black and Indian judges — a development that was unthinkable during the colonial era, for it was held that non-whites could not be expected to be part of the social contract that informed the colonial constitutional order.
The transformation of the judiciary effectively mirrors the transformation of the political and administrative system that has taken place under the watch of President Robert Mugabe.
It is common cause that the entire Zimbabwean bench is a product of the political power system that has largely operated on partisan grounds.
The fact that Mugabe holds strong views on issues such as sovereignty, independence, patriotism, and the role of political clubs in shaping the character and personality of nations is well established to allow him to make rational, impartial, and non-partisan appointments to the judiciary.
To the extent that he appoints the minister of Justice and Legal Affairs, it is important to recognise that unless there is a change at the top whoever will be the minister will have to toe the line on judicial appointments.
Accordingly, anyone who understands the connection between Zanu PF and the judiciary cannot be confused when reading some of the decisions that have come from the bench.
The fear that has now been democratised in Zimbabwe is not unique with respect to members of the bench, but is now common in many organs of the State including the legislature.
Justice Hungwe, for example, now knows better how the wheels of the system can suddenly turn when certain members of the executive branch of the government are threatened.
Although the separation of powers doctrine is central and fundamental to the rule of law and republican democratic governance, the post-colonial experience has exposed the fault lines in this construction as the head of State and government has assumed the personality of a superstar capable of subordinating the role and functions of the judiciary and legislature.
The judgment that preceded the proclamation of the elections speaks volumes about the missing links in Zimbabwe’s presumed democratic constitutional order.
It is common cause the jurisdiction of Sadc in the context of the GPA was contentious and the intervention of the court effectively created the required window to legitimise the circumvention of Parliament in enacting the Electoral Law.
It is significant that Section 90 of the Constitution provides for the appointment of judges by the President, a product of a political system, and yet Section 164 of the same Constitution provides for the independence and impartiality of the courts as central to the rule of law and democratic governance.
Although in terms of the Constitution, the courts are independent and subject only to it and the law, which the judges must apply impartially, expeditiously and without fear, favour or prejudice, the experience so far suggests otherwise.
The Constitution provides that neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts.
However, at this critical juncture in the development of Zimbabwe’s constitutional democracy, there exist numerous examples confirming direct and indirect interference by members of the executive.
It is also provided in the Constitution that the State, through legislative and other measures, is compelled to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.
In a constitutional democracy, it is critically important that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that citizens who appear before them can have confidence that their cases will be decided fairly and in accordance with the law.
Notwithstanding, it must be understood that judges are human and, therefore, not immune from acting subjectively.
Furthermore, judges also have their own world-view as individuals who are members of a society that has a past with all its demonic impact on perspectives about what is right and wrong.
The “whom” and “what” questions necessarily have to be raised in the context of the independence of the judiciary.
To the loser in a court application or action, it is easy to blame the judiciary and yet it is now accepted that he who pays the piper often calls the tune and judges often find themselves conflicted.
Although it is important that each judge is able to decide cases solely on the evidence presented in court by the parties and in accordance with the law, the recent experiences following the enactment of the Constitution whereby the Constitutional Court chose to defer the adjudication of some the election applications in order to conveniently and craftily allow the disputed nomination date to pass goes a long way towards exposing the challenges that the judiciary finds itself in when a great leader exists in the political community.
The responsibility of judges in disputes is to protect the weak and not the strong suggesting that in cases where an individual takes on the state, the courts have a duty to protect the individual yet in many cases it would appear that the judiciary exists to serve the state and its actors.
My dream of independence was that it would usher a new era in which judges are also seen to be independent and impartial even though they may be appointed on partisan basis.
Although an independent and impartial judiciary is one of the cornerstones of any democracy, the judges appear to be accountable to state actors and themselves.
The enjoy immunity from prosecution for any acts they carry out in performance of their judicial functions yet it is precisely in the performance of such functions that they are often found wanting.
I may not have any authority to challenge judicial decisions outside the court but believe that it is important to share knowledge on some of the strange judgments that I have been exposed to in post-colonial Zimbabwe solely for the purpose of arming those who believe that they only way to change the faces on the bench is to change the face of the appointing authority, the President.
One such judgment was handed by Justice Rita Makarau , now chairperson of Zec, under the following cases HC542/05 and 632/05 in a matter involving THZ Holdings Limited (THZH) v Zimre Holdings Limited (ZHL) and the Zimbabwe Stock Exchange (ZSE) and ZHL v ZSE & THZH; respectively.
The application was instituted by THZH, a company, registered in the United Kingdom whose ultimate shareholder was me, that held 100 percent of the shares in Endurite Properties (Private) Limited (“Endurite”). Endurite owned 75 percent of the shares of Ukubambana-Kubatana Investments (Private) Limited (UKI).
Both Endurite and UKI are Zimbabwe’s corporate citizens that were supposed to be protected by Zimbabwean laws.
ZHL is a company registered in Zimbabwe with shares listed on the ZSE. Endurite and UKI held 24.32 percent and 22,23 percent shareholding in the company, respectively.
On August 26, 2004, Patrick Chinamasa declared both UKI and Endurite to be specified in terms of Section 6 of the Prevention of Corruption Act and appointed Saruchera as the investigator of both companies thereby alienating the link between the shareholders and directors with the companies.
On January 28, 2005, ZHL held an extraordinary general meeting at which shareholders were to approve or disapprove of a proposed rights issue in the company.
Two resolutions were passed at the meeting, one special to increase the share capital of the company and the other general in respect of Renounceable Rights.
As shareholders both Endurite and UKI had the right to vote at the meeting similar to my case as a citizen of Zimbabwe in terms of the operation of the new Constitution.
The companies appeared through the proxies signed by me and the other by a director of UKI.
In Case No. 542, THZH sought an order setting aside the resolutions passed at the meeting on the grounds that they did not receive the requisite number of votes for their passing.
Before the matter could be adjudicated upon, Afaras Gwaradzimba applied to be joined in the proceedings as a party to both cases on account of the that although the notice issued by Chinamasa on September 6, 2004 placing all my companies under the control of a state appointed Administrator on the basis of a decree that provided no role for judicial intervention.
Surprising the application was granted by Makarau notwithstanding its constitutional implications on the belief by her that the actions of the government were lawful.
It is significant that Tendai Biti appeared for the ZSE.
Makarau ruled that because I was a specified person and had signed the proxy on behalf of THZH, the application be dismissed with costs.
As a consequence, the control of the company changed with the active support of the judiciary.
It is the conduct of people like Makarau that provides lessons about why change is needed now and not later and more significantly why public confidence on the impartiality and independence of the judiciary is low.