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Judicial idependence a jewel of democracy



G>IN a televised interview in 1983, the then attorney-general, Godfrey Chidyausiku, said it was undesirable for Zimbabwe to have a judiciary that pandered to the government’s wishes.


“I don’t think it is desirable that we should have a puppet judiciary,” he said. “We should have an independent judiciary rather than one that panders to the wishes of government. We should have a judiciary that is prepared to make a decision that will be unpopular with the government.”


Nearly 20 years later, in April 2002, Chidyausiku, now Chief Justice, at an international conference of jurists, quoted from an address by Justice Denham of the Supreme Court of Ireland: “Judicial independence is a precious jewel of democracy, to be guarded and cherished for the benefit of the people it serves. It is a jewel of the state. It is fundamental to democracy and the rule of law that the judiciary be strong, to withstand pressure from any quarter. Yet the judiciary should be of their times and take account of the changing society within which judges hold office, while retaining the core principle of their independence… The judiciary should absorb the light from the society it serves.”


Brave words from the country’s highest jurist but there is a price to be paid by judges making unpopular decisions.


This week former president of the Administrative Court Michael Majuru has opened up to narrate the circumstances under which he left the country at the beginning of the year.


If his story is true, it would be a major disclosure by a member of the judiciary and an indictment of government’s interference in the operations of the bench.


Majuru resigned in January and, together with his family, went into exile in South Africa. He was presiding over the Associated Newspapers of Zimbabwe saga, which had gone to the Administrative Court for a ruling on whether the company should be allowed to publish the Daily News and the Daily News on Sunday.


Majuru told the media this week that he was hounded by Justice minister Patrick Chinamasa who wanted him to disclose how he was going to rule in the ANZ case. He also claims a businessman allegedly tried to offer him a farm to ensure the two ANZ publications stayed dead. Majuru said he was threatened and trailed by intelligence operatives before he decided to resign and leave the country. He claims that reports were planted in state newspapers to suggest that he was working in cahoots with British organisations keen to see the ANZ papers publishing again.


Allegations of governments packing the bench to get favourable rulings are commonplace in totalitarian states. But imploring a judge to divulge his ruling outside court is rare and outrageous. Trying to bribe a judge with land raises fundamental questions about the partiality of judges who received farms under the fast-track exercise. Their rulings on challenges to farm acquisitions have sparked controversy.


In 2003 Zimbabwe’s judiciary featured as the least independent of 21 African benches on the blacklist compiled by the World Economic Forum.


Majuru is not the only member of the bench to have left in a huff. A number of senior judges have left the Supreme Court and the High Court in the past few years to pursue their careers outside the country.


They include Chief Justice Anthony Gubbay who was induced to retire in July 2001 after loud criticism from government. The resignation came five days after the Supreme Court struck down as unconstitutional regulations made by President Mugabe which attempted to nullify the opposition MDC’s petitions against results of the 2000 parliamentary election.


The government was also critical of white High Court judges David Bartlett, Fergus Blackie, George Smith and Michael Gillespie.


Justice Gubbay earned the ire of the establishment when he handed down judgements upholding the rule of law. One such ruling condemned violence and farm invasions.


Judges who have left the bench have not spoken out on the alleged interference. Their silence has been used by government to support its mantra that there has not been any interference in the judiciary — that the re-organisation is meant to make the judiciary relevant to the status quo.


In fact Chinamasa, whom Majuru cites as a major source of interference in the operations of the bench, declared in 2002 that there was no government interference in the running of the judiciary.


But Majuru’s disclosure this week confirms the popular perception of a deliberate purge of the judiciary to ensure the bench becomes a pliable apparatus of the ruling order. President Mugabe’s government, which is hide-bound in a defensive mode, regards any form of criticism as a neo-colonial plot to undermine the authority of the incumbent. White judges were labelled denizens of the Rhodesian era while black judges who have stood firm in the face of political pressure are treated as instruments of destabilisation and puppets of the West.


This mindset will however not cleanse Zimbabwe of its bad boy image, which allows state functionaries to impugn the integrity of the bench and defy rulings of the highest court with impunity.

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