Zimbabwe’s Justice System Again Under Scrutiny
Peta Thornycroft | Johannesburg 17 January 2011
Zimbabwe Chief Justice Godfrey Chidyausiku last week warned the executive to
desist from trying to interfere with the judiciary. Judge Chidyausiku’s
remarks, at the opening of the 2011 legal calendar, has caused concern in
Zimbabwe’s legal fraternity as many say the public does not regard higher
court judges as impartial.
Lawyers say Judge Chidyausiku’s remarks about judicial independence are
controversial because in their view the independence of the judges has been
severely compromised in the past decade. They cite a number of issues
including appointments of judges well-disposed to President Robert Mugabe
and his ZANU-PF party, and defiance of court orders.
But in particular they say judicial officers have been compromised by being
granted fully equipped, profitable, and tax-free farms since Mr. Mugabe
began awarding white-owned farms to ZANU-PF supporters in 2000.
Zimbabwe lawyer Arnold Tsunga is also director of the International
Commission of Jurists’ Africa program. He says right from the start it was
clear the dispossession of the farms would be contested in the courts.
“When the Government of Zimbabwe expropriated these farms, it did so without
compensation and it took over farms without consent of owners, so you find
it is disputed land that must be subject to judicial arbitration,” said
Tsunga.
Tsunga says the free distribution of productive farms, including
improvements and equipment, damaged the independence and impartiality of the
bench.
“It is very consistent with the strategy of beginning to give them assets,
disputed assets, like expropriated land,” he said. “So all this was a
consistent strategy to undermine the independence of bench.”
Since 2002, when the previous chief justice and some of his colleagues
resigned after being threatened by Mr. Mugabe’s supporters, all but one
judge of the Supreme Court, which also sits as the country’s constitutional
court, have been given free white-owned farms.
Justice Wilson Sandura, who has been a judge for 27 years, was one of a full
bench of five Supreme Court justices who in 2001 ruled farm seizures were
illegal. He refused to accept a farm. In recent years he has not been
assigned to cases involving land or political issues.
High Court judges occupying farms regularly hear cases on disputed land.
Judge Chidyausiku said in his speech most constitutional matters brought to
court in 2010 were land cases, which he said all fell away last November
after the Commercial Farmers Union lost its appeal to the constitutional
court on evictions of white farmers.
The lawyers representing the union say they learned they would be charged
with contempt of court if they asked judges who were beneficiaries of land
to recuse themselves from the trial.
A former University of Zimbabwe lecturer, Derek Matyszak, says the assets on
the farms that provide extra income or perks for judges were never taxed.
He adds that granting the farms and accompanying assets to judges violated
the constitution.
“The manner in which judges are remunerated is set by the constitution, and
the remuneration of judges and the reason why it is in the constitution is
that remuneration of judges has to be done in a manner which does not affect
their impartiality,” said Matyszak. “Obviously, if the judges are going to
be beholden to the executive for their income, then this is going to affect
their impartiality … when judges are handed out farms, this is basically a
job perk, and it contravenes the constitution.”
Matyszak says as the judges’ farms are now state-owned land, their continued
occupation is vulnerable to what he described as the “whims” of the
executive.
Lawyers say most orders arising from high-court cases involving political
rights and land have not been executed for the past 10 years.
Last month nine Zimbabweans won a case at the Southern African Development
Community Tribunal – the region’s court of last resort. They pleaded they
had won cases in the High Court in Harare for compensation from the
government, following assaults by the police and members of the army, but
compensation was never paid.
The Tribunal which sits in Namibia ruled the Zimbabwe government had
breached the SADC treaty by failing to ensure its High Court orders are
executed.
Tsunga says that after 2000, Mr. Mugabe sent out a message to the judiciary
that the politicians are in control of the judiciary.
“The defiance of court orders has really become an emblematic problem in
Zimbabwe,” added Tsunga. “So the culture of defying court orders is a
culture that has become an entrenchment of impunity and is directly linked
to the political process of 2000 when Mugabe was trying to undermine the
judiciary.”
Analyst Matyszak says until 2000 Zimbabwe’s judges enjoyed a well-earned
excellent reputation. But he says this reputation became seriously
tarnished when judges failed to challenge what he says were severe
violations of the law perpetrated by Mr. Mugabe’s government.
“The ZANU-PF led government has actually blatantly violated various
provisions of the constitution and has completely ignored various provisions
of other legislation, and that is a definite shift in the manner in which
ZANU-PF is operating,” he said.
Zimbabwe’s Prime Minister Morgan Tsvangirai gives a press conference in
Harare to announce the reshuffling of ministers belonging to The Movement
for Democratic Change (MDC) party, 23 Jun 2010
AFP
Zimbabwe’s Prime Minister Morgan Tsvangirai gives a press conference in
Harare to announce the reshuffling of ministers belonging to The Movement
for Democratic Change (MDC) party, 23 Jun 2010
Prime Minister Morgan Tsvangirai says the appointment of judges since the
September 2008 multi-party political agreement undermines the inclusive
government established in terms of that agreement.
The most controversial appointment came last year when Judge George
Chiweshe, former chairman of the election commission, was elevated to Judge
President of the High Court, with powers to decide the allocation of cases
before the court.
Judge Chiweshe delayed release of the result in the 2008 presidential
election for five weeks and failed to condemn the violence mostly against
supporters of then presidential candidate Morgan Tsvangirai.
About 160 people were killed and thousands were injured and evicted from
their homes and villages in the worst electoral violence in Zimbabwe for
more than 20 years. Independent humanitarian organizations say the violence
was overwhelmingly perpetrated by Mr. Mugabe’s supporters.
In opening the High Court year, Judge Chidyausiku also called for private
donations for the courts and suggested this money could be used to boost
salaries and repair court buildings. He says in some instances, court
buildings have become a health hazard.
Attempts in the past week to reach ZANU-PF justice minister Patrick
Chinamasa and the office of the secretary for justice by mobile and landline
telephone were not successful.