HomeOpinion & AnalysisZimbabwe: A state of injustice

Zimbabwe: A state of injustice

Lady Justice is regarded as a universal symbol of justice.

She holds balance scales in one hand and a sword in the other.

Sometimes she wears a blindfold.

The scales represent the pursuit of justice through weighing the evidence on either side while the unsheathed sword stands for transparent enforcement when justice is rendered.

Where she wears a blindfold, it is to say that the law is objective and impartial; that it is not affected by extraneous factors.

In Roman times, her name was Justitia, representing the morality of the justice system.

When six new justices of the Supreme Court of Zimbabwe were sworn into office last week, they gathered around a large cake that had the image of Lady Justice.

Together they wielded a large knife, which they used to cut the cake and, in the process, decapitated Lady Justice.

The irony must have eluded both the set of judges and the organisers of the event, who thought the cake with Lady Justice and the act of cutting it was a good idea.

For the symbolism of judges, who have been appointed in a controversial and arguably illegal manner wielding a knife and cutting up Lady Justice is most striking in the circumstances.

For one thing, it conjured up a few puns.

One of them is you cannot have your cake and eat it at the same time.

But there they were, controversially appointed judges trying to have their cake, while eating it at the same time.

In appointing the judges while there was an on-going legal challenge to stop the appointments, the appointing authority was also trying to do the same.

This is a period in which the constitution of Zimbabwe has been seriously stretched following two amendments which were passed in April and May, both of which are fraught with illegalities.

It is a time when Zimbabweans have witnessed the unedifying sight of the former Chief Justice Luke Malaba clinging on to office.

It is usually politicians who cling to office, not judges.

Malaba reached the retirement age of 70 on May 15, 2021.

He should have been preparing for his departure long before this mandatory date.

But instead, he was planning to stay in office and hoping desperately to be rescued by the president.

The government had already announced proposed changes to the constitution so that a judge who reached the mandatory retirement age of 70 could stay for up to five years.

But the Covid-19 pandemic arrived unexpectedly and wreaked havoc on the plan to keep Malaba in office.

The national lockdown meant the constitutional amendment process stalled.

The problem for Malaba is that the biological clock did not stop ticking towards 70 just because the pandemic had struck.

As the months went by, his position became more uncertain and precarious.

His future became ever more dependent on the benevolence of the President and Parliament.

Together, they form the legislature, and they would be responsible for passing the amendment before his 70th birthday.

The excessive speed with which the amendment was passed and signed into law reflected the urgency of the situation.

But for the ever-scheming President Emmerson Mnangagwa, this was also an opportunity to gain effective control of a pillar of the state that is otherwise supposed to be independent.

Malaba had become a lame duck chief justice.

He needed Mnangagwa more than Mnangagwa needed him.

Leaving it too late and then fast-tracking the amendment was Mnangagwa’s signal to let Malaba know he was indebted to him.

He had literally rescued the elderly jurist from the abyss, but he is now in Mnangagwa’s debt, a liability that he must discharge at a high rate of interest.

Malaba could have done the honourable thing and retired just like his predecessor, Chidyausiku did before him.

As he approached 70, Chidyausiku set in motion the constitutional process of choosing his successor.

Ironically, that is how Malaba himself came into office — through an open and transparent process.

Malaba had all the time in the world to set this process in motion.

But having been afflicted by the Handiendi (I won’t leave) syndrome, he sat back and waited for Mnangagwa’s amendment which would save him.

There are at least two reasons why Malaba has taken this embarrassing path.

The first is the disease that afflicts many people in power —the love of power.

They might even come in as democrats, with all sorts of promises.

But once they have stayed in office, they never want to leave.

They would have discovered the privileges of office and they cannot let go of the comforts.

Malaba arrived late in the chair of the chief justice.

He wants more and has succeeded in embarrassing himself in pursuit of more game time at the top of the judiciary.

The second reason is more practical and personal.

If Malaba retired this year, he would have had to go home with a pension expressed in local currency, the increasingly useless Zimbabwe dollar, which was brought back into circulation two years ago.

After starting at a ridiculously rigged rate of 1:1 with the US Ddollar, it is now officially trading at 1:85, another rigged rate.

The parallel market rates, which are more realistic, are nearly double the official rate.

If Malaba left office on 15 May 2021, he would have gone home with very little to live on for the rest of his life because he would be paid in Zimbabwe dollars.

He would have joined millions of pensioners who have seen their savings wiped out by a combination of hyperinflation and erratic currency policies over the years. He does not like that.

The irony is that it was Malaba, when he was chief justice, who backed the currency laws.

In one case, Zambezi Gas Zimbabwe (Private) Limited v N.R. Barber (Private) Limited (2020), Malaba ruled that it was lawful for a debtor to repay a US dollar-denominated debt using local currency.

Considering the difference in value between the US dollar and local currency, this meant the creditor received only a tiny fraction of what it was owed by the debtor.

In another case, Stone Beattie Studio v CABS (2021) had deposited US$142,000 in their CABS bank account.

When it wanted to withdraw the money in US dollars, the bank declined based on a new decree under which the account had been converted into local currency.

Again, Malaba ruled that it was lawful for the bank to pay out the US$142,000 in local currency. It was a huge loss to the bank customers.

Now, as the clock ticked to 70, Malaba knew he would have to retire on a Zimbabwe dollar package, consistent with the law that he had validated and upheld as chief justice.

He did not fancy this position.

He did not want to bear the effects of the laws that he validated.

So here is a man who is happy to have devastating consequences of ridiculous laws on others except himself.

He is like a man who invites others to a feast where he serves his homemade brew to every guest but when it is his turn to drink from the pot he says please pass it on because he is no longer thirsty.

The guests are bound to get suspicious and for good reason.

The hypocrisy is astounding. The man cannot stomach the products of his own hands.

The new judges of the Supreme Court are also in a precarious position.

They were appointed by the president using Amendment No. 2, which is subject to more than one legal challenge.

The amendment violates the special procedure for amending the Constitution which is provided for in section 328.

It has previously been argued extensively that there should have been a referendum before extending the term limit of judges.

  • This is an extract from Alex Magaisa’s latest Big Saturday Read blog

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