Contempt of court has lengthy record
http://www.theindependent.co.zw/
Thursday, 24 March 2011 19:57
By Alex Magaisa
THE recent comments on the judiciary made by Prime Minister Morgan
Tsvangirai in the wake of the judgment nullifying the election of the
Speaker of parliament have raised a real storm. There are reports that he
may be hauled before the courts on charges of contempt of court.
It is not intended here to pass judgment on the character of those comments.
It is a matter which if it indeed it does come before the courts will
exercise the wise faculties of the learned judges.
Having some interest in matters of judicial independence and being inclined
to defend the courts against political interference, it matters not to me
who is doing it and I believe that it is important to exercise restraint.
However, concern also arises where the law is applied selectively.
I have, in my research on Zimbabwe over the years, observed with interest
the relationship between the judiciary and politicians and I have concluded
that only a few can really raise their hands and claim they are clean. This
article simply recollects moments in recent history where conduct similar to
that which is currently the subject of the political and legal storm has
manifested itself, often without consequence to its authors.
Interestingly too, some characters who today point accusatory fingers do not
seem to have a clean record when it comes to contemptuous behaviour towards
the courts. No doubt they will justify their conduct, just as Tsvangirai
will also try to justify his recent comments.
‘True judgments’
In an article in the Zimbabwe Independent on August 2 2002, President
Robert Mugabe was quoted as having remarked at a reception for MPs that the
government would not obey judgments which it regarded as “subjective”. He is
quoted as having stated: “We will respect judges where the judgments are
true judgments.”
These comments were made in reference to a case in which Justice minister
Patrick Chinamasa had been convicted of contempt of court by Justice
Blackie, then a High Court judge. The report goes further to quote the
president as having said that a judge who “sits alone in his house or with
his wife and says ‘this one is guilty of contempt’, that judgment should
never be obeyed”.
This was a statement clearly signalling that the government would be at
liberty to select which judgments to obey and which ones to ignore. And, of
course, that was not deemed enough to qualify as contempt of court.
‘Night Judges, night justice’
In October 2000, the then Information minister Jonathan Moyo issued vicious
criticism of High Court judge, Justice Chatikobo, whom he accused of being
a “night judge dispensing night justice”, after he had granted an urgently
sought interdict after hours.
A new radio broadcasting company, Capital Radio, had sought urgent
protection of the courts against Moyo who wanted to seize its equipment at a
time when the main case was pending in court. Justice Chatikobo granted an
order for Capital Radio against the government, and Moyo was not pleased.
The police disregarded the High Court order which Moyo ridiculed on the
grounds that it had been issued by a “night judge, in a night court” and
that the result had merely been “night justice”. There were no charges of
contempt of court against Moyo.
Letters to the judiciary
The matter did not end there. As the Zimbabwe Independent reported on
October 13 2000, Moyo was reported to have written to the then Judge
President Justice Godfrey Chidyausiku registering “government’s disquiet
over (the) High Court ruling in the Capital Radio saga”. This resulted in
the High Court instituting investigations into the conduct of Justice
Chatikobo who had granted the interdict giving Capital Radio protection
against a search by the police.
Contrast this to when Tsvangirai is reported to have written to the High
Court regarding the Roy Bennett matter. He was widely lambasted for
interfering with the judiciary. To my mind, both were wrong to write to the
courts from their seats in the executive for it constitutes undue
interference. There are proper channels that everyone must follow. Yet it
would seem rather odd to any reasonable person the different reaction to
both cases.
In any event, there was nothing irregular about what Justice Chatikobo had
done — urgent relief ought to be given at any time of the day otherwise
violators can take advantage to commit their acts and cause irreparable harm
during those times when they think judges and the courts of law cannot hear
matters. Justice Chatikobo later resigned and took up a judicial post in
Botswana where he later died.
Chinotimba’s supreme court invasion
In November 2000, war veterans leader Joseph Chinotimba led a group that,
in an unprecedented act, invaded the Supreme Court building to start what
was to become the effective purge of the judiciary — removing judges who
were regarded as being unfavourable towards the fast track land reform
programme.
Indeed, of all judges of the Supreme Court who were in office in March 2001,
the one who has survived is Justice Wilson Sandura, who so often finds
himself in the minority in major judgments. Those of us in the business of
teaching the law often advise students of law to pay particular attention to
some dissenting judgments often because they have more legal merit than the
popular majority decision.
I like to think Justice Sandura’s judgments are, and will in future, be a
critical source of teaching and learning the law in Zimbabwe. History is
kind to good legal reasoning.
After their unprecedented act and accompanying threats against the judges,
Chinotimba and his comrades were never charged with contempt of court.
‘Polite and nice’ request to leave
After Chinotimba’s group threatened the Chief Justice Antony Gubbay, Justice
minister Chinamasa is reported to have advised him that the government would
not be able to guarantee his safety. This lack of protection and apparent
collusion between the war veterans and the executive arm of government
threatening the integrity of the courts and safety of the judges forced him
to retire in March 2001.
One of the Supreme Court judges, Justice McNally, is also quoted in the
media as having said at the time: “I was told very politely and very nicely
that I should go — take my leave and go, otherwise anything could happen. It
was said very frankly that they didn’t want me to come to any harm.” He was
referring to a meeting he had with Chinamasa during the upheavals.
Judge Devittee was one of the three High Court Judges appointed after the
highly controversial 2000 parliamentary elections to preside over electoral
cases brought before the court. He made a few decisions that upheld the
opposition’s petitions.
Chinotimba is quoted as having declared: “Devittee is a judge for opposition
political parties. The way Gubbay went is the same way he is to go”.
Gubbay is the former Chief Justice whom, it was reported, Chinotimba and his
colleagues had invaded and threatened at the Supreme Court in 2000 before he
eventually departed in 2001. By June 2001, Judge Devittee had resigned from
office. Needless to say Chinotimba was not charged with contempt of court.
Justice Blackie’s ‘kangaroo courts’
Sometime in 2000, Chinamasa was hauled before the High Court on charges of
contempt of court. He did not turn up. Justice Blackie, then presiding,
issued an order of sentencing Chinamasa to three months’ jail time and a
Z$50 000 fine for contempt of court. The charges of contempt had arisen over
comments regarding sentences against three Americans who had been found in
possession of arms, which punishment Chinamasa thought was too light.
Chinamasa is quoted as having said at the time of sentencing that the
six-month jail sentences induced “a sense of shock and outrage in the minds
of all right-thinking people .The leniency of the sentences constitutes a
betrayal of all civilised and acceptable notions of justice and of Zimbabwe’s
sovereign interests”.
When he gave his judgment on the contempt charge, Justice Blackie said that,
“the statements made by Chinamasa were intended to bring Justice Adam (who
had issued the sentences) into disrepute as a judge and the administration
of justice by the High Court in this case into disrepute.”
Later, the sentence against Chinamasa was overturned by another judge but
not long after, Justice Blackie was arrested and what followed was an ordeal
that some believe was retribution for the sentence that he had earlier
passed against the minister.
There is some indication in this rubble that this at least shows that it is
possible to hold one in contempt of court for scurrilous accusations against
the courts, especially by those in positions of executive authority and that
they should exercise restraint in their public utterances. This applies to
all leaders and parties. Yet one has to recall that even after Chinamasa’s
conviction, the then Information minister Moyo did not relent.
He is quoted as having remarked that the contempt of court judgment by
Justice Blackie showed that the judge “who has a history of kangaroo courts”
had taken the matter into “a personal crusade and has done that in a manner
that will erode public confidence in the justice system”, and further that
“there is no doubt that fair minded and law abiding citizens will see this
judgement for what it is: outrageous, sinister, highly personalised crusade
made by someone who should be packing his bags”.
No to legal technicalities
As long back as 1982, after a judgment against the government in a matter
involving the Yorke brothers, the then Prime Minister Mugabe is recorded as
having responded: “The government cannot allow the technicalities of the law
to fetter its hands in what is a very clear task before it, to preserve law
and order in the country .We shall therefore proceed as the government in
the manner we feel is fitting … and some of the measures we shall take are
measures which will be extra-legal”.
Defenders will no doubt find reasons to defend these statements citing
arguments including preservation of national security and the politics of
the day, but so will defenders of Tsvangirai in present day politics.
‘Merely academic judgement’
In 2004, when Justice Majuru — then of the Administrative Court — ruled in
favour of the ANZ, publishers of the Daily News, and when the order was
later confirmed by Justice Nare who was the Minister of Information, Moyo
responded by saying that the judgment was merely academic and could
therefore not be enforced.
In an article on the undermining of the judiciary, journalist Blessing Zulu
quotes Professor Welshman Ncube, then MDC secretary general, as having said:
“The ANZ case is the first clear and unambiguous refusal by the government
to obey a court order. This time they cannot change the law to suit their
needs. This is a clear attack on the judicial system.” Needless to say, no
action was taken against the alleged offenders.
Enduring culture
Contempt of court by Zimbabwean politicians has a shamefully rich history.
As long back as the late 1960s, in the well-known case of Madzimbamuto v
Lardner-Burke, the Smith government had vowed not to obey the Privy Council
judgement which was likely to rule against it. Indeed when the Privy Council
judgment came, pliable judges effectively took the government side –– except
two, Judges Fieldsend and Dendy Young who resigned in protest.
The culture of disobeying and undermining judicial authority where decisions
are unfavourable to politicians seems to have been one of the more negative
inheritances from that era. It is part of a culture that taints the greater
political landscape.
Few can raise their hands and claim them to be clean. They have been
contemptuous in various ways but the difference is that most have got away
with it because they wield greater political power.
Plainly, one could produce a whole volume of incidents in which members of
the executive have conducted themselves in ways that are so contemptuous
that they are likely to jeopardise and often have endangered the
independence of the judiciary.
Chief Justice Chidyausiku issued a plea in his recent speech at the opening
of the legal year calling on politicians not to interfere with the judiciary’s
work. True enough, politicians are human beings and they do get frustrated.
In the frustration, they may say things that upon further reflection they
would rather not have said.
It is probable that Tsvangirai made statements against the Supreme Court
judges in a moment of frustration. That is not to excuse his conduct. But
one needs to tread carefully here, for as the various instances chronicled
in this piece indicate, politicians on the other side of the political
divide have no clean hands as far as this type of conduct is concerned. They
have, in various instances, issued similar, if not worse criticism against
the courts and judges. This conduct caused many judges to leave office in
the early part of the last decade.
Whatever the justifications they may use for their actions, the fact remains
that their conduct was no less contemptuous. Yet none of them faced the
wrath of the law and the courts for such contempt — in the one significant
case involving Chinamasa, it was quashed by another judge.
It is not right for politicians — Zanu PF, MDC or whomsoever — to abuse the
courts and judges yet it is also not right to apply the law selectively. The
matter needs sober minds and sober politicians to raise their hands and
clean up their act. Judges must maintain the integrity of their office by
not only dispensing justice, but as the old adage goes, be seen to be doing
so.
Magaisa is based at Kent Law School, University of Kent. He can be
contacted on: [email protected]