Out-going Chief Justice Godfrey Chidyausiku

By Alex Magaisa

THE application which was also brought on behalf of other farmers sought to declare certain provisions of the Act to be unconstitutional. The matter came before Chidyausiku. He had to decide whether designation of land without compensation violated the Constitution. The argument was that designation of land amounted to acquisition of an interest in property and as there was no compensation for designation, this violated property rights protected under the Constitution.
Chidyausiku held that designation without compensation was not unconstitutional. He reasoned that the State had sovereign authority over all land and could acquire it in the public interest, albeit in compliance with constitutional requirements for compensation. He held that while designation was not acquisition, it was nevertheless control or regulation of private property which was also permitted in the public interest. Where such power is exercised reasonably and properly, there is no need to pay compensation to affected persons. Compensation could only be paid where the regulation or control amounts to acquisition. In drawing a distinction between acquisition and control, Chidyausiku ruled that designation was merely a control measure.
It is ironic that in making this judgment, Chidyausiku placed heavy reliance on American jurisprudence, even commenting favourably that “the American approach seems to be consistent with common sense”. However, the Davies case is remarkable as the case in which Chidyausiku planted his flag firmly on the ground as far as the Land Question was concerned. He made a pitch for land reform which read more like a political thesis. It is a lengthy quote but to understand the man behind the judgments after he became Chief Justice, it is only fitting that the whole lecture he gave be quoted in full:
“… the fact of the matter is that the facts that make land acquisition for resettlement a matter of public interest in Zimbabwe are so obvious that even the blind can see them,” he wrote. “These facts make the resettlement of people a legitimate public interest.
“In my view, anybody who has lived in Zimbabwe long enough needs no affidavit to know the following facts, which are common knowledge, which make acquisition of land and for resettlement imperative in public interest. These are: Once upon a time all the land in Zimbabwe belonged to the African people of this country. By some means foul or fair, depending on who you are in Zimbabwe, about half that land ended up in the hands of a very small minority of Zimbabweans of European descent. The other half remained in the hands of the large majority, who were Africans. The perception of the majority of Africans was that the one half in the hands of the minority was by far the better and more fertile land, while the other half, which they occupied, was poor and semi-arable. It is also common knowledge that, when the Africans lost half their land to the Europeans, they were paid nothing by way of compensation.
“Successive enactments on the land entrenched the inequity of the land distribution in this country. The Land Commission of 1925, the Land Apportionment Act 30 of 1930 and the Land Tenure Act 55 of 1969 ensured that the Africans in Zimbabwe, who formed the vast majority of the population, were overcrowded in semi-arable land, referred to sometimes as native reserves, whilst the minority Europeans retained the better half.
“In terms of the above statutes, the land in this country was divided into European and African areas. In terms of the Second Schedule to the 1969 Land Tenure Act, the total extent of the African area was 44 949 100 acres and the total extent of the European area was 44 949 300 acres. The vast differences in the population of the two groups counted for nothing in the distribution of the land. Attempts to redress the land issue by peaceful means were not successful. The Africans took up arms and a struggle ensued.
“The Lancaster House agreement marked the end of the armed struggle and the transfer of political power to the Africans. The Constitution that came out of the Lancaster House agreement imposed certain restrictions regarding the redistribution of land. As of now, the perception still exists that still large portions of the land remains in the hands of a small minority of European descent, while the majority of the Africans are still crowded in semi-arable communal land.
“The majority of the Europeans who own land are able and willing to release some of the land to resettle Africans. They are willing to sell it to a cash-strapped government at a premium.
“On the other hand, the majority of Africans who are still crowded in the communal areas are more than anxious to be resettled on land they see as their own taken from them wrongly in the first place. They see no merit in having to pay for land that was taken from them without compensation in the first place.
“In the result, I have come to the following conclusions, that facts that are common knowledge which the court can take judicial notice of establish that the programme of resettlement of people is in the public interest and designation is part of that programme.”
This was a bold statement from the bench, laying ground and effectively providing justification for land reform. An analysis of what happened over the land issue after 2000 will demonstrate that it followed the very same principles that Chidyausiku articulated in his judgment in the Davies case. For Chidyausiku, whatever the rules said, there was an historical injustice which needed to be resolved. In this judgment, Chidyausiku demonstrated his credentials as a driver of land reform long before most politicians jumped onto the bandwagon. It explains why the CFU was not comfortable with him chairing the judicial panels deciding the land reform cases. They believed he was biased and hostile. For his part, he believed he was correcting historical injustices. The revolution needed to be defended and he was ready to take on that role, even if that came with serious consequences for his reputation among peers.
The political judge
In relation to politics generally, beyond the land issue, the tenure of Chief Justice Chidyausiku eerily echoes the tenure of a predecessor, Chief Justice Sir Hugh Beadle. That their political roles and profiles were more prominent than other Chief Justices is probably down to the fact that both men presided over the judiciary during politically-charged periods. Sir Hugh Beadle was Chief Justice during the tumultuous period of UDI, during which time he took on the role of mediator and go-between with the British Crown represented by the Governor on the one hand and the rebellious Smith regime on the other hand. As we have already seen, Chidyausiku presided over a period of the highly contentious and politically-sensitive fast track land reform programme. While Sir Hugh Beadle’s political role was more apparent, Chidyausiku played his political role more softly under the cover of judicial robes, with the sound of the gavel and stroke of the judicial pen. Apart from the land-related cases, which have already been analysed in some detail, there are other important cases in which politics played a major role.
Thwarting Tsvangirai
The first of these is the case of Tsvangirai v Registrar-General & Ors (1) 2002 (1) ZLR 268 (S) which was brought and decided shortly before the 2002 presidential election. Morgan Tsvangirai, leader of the MDC and (President) Mugabe’s main rival at the time, brought an application to the Supreme Court a day before the elections were due to commence. He was aggrieved by (President) Mugabe’s amendment of the Electoral Act just three days before the election. Tsvangirai’s grievance was neatly summed up by Justice Sandura in his dissenting judgment:
“The (Presidential) Notice was issued three days before the presidential election commenced and dealt with vital and important issues relating to the manner in which the election was to be conducted. It altered the provisions of the Electoral Act in material respects and, consequently, the conditions under which the election was to be conducted. The applicant was aggrieved by the provisions in the Notice because he believed that they gave the third respondent (President Mugabe) an unfair advantage over him in the election. Accordingly, acting in terms of s 24(1) of the Constitution, he brought this urgent application directly to this court challenging the constitutionality of s 158 of the Electoral Act and the Notice.”
The notorious section 158 of the Electoral Act which President Mugabe had used to issue the changes gave him excessive powers to change the rules of the game. Tsvangirai also complained that legislation limiting postal ballots to members of the armed forces denied other voters the right of freedom of expression.
In response, government argued that Tsvangirai had no locus standi (legal standing) to bring the case. Shockingly, the Chidyausiku court agreed with this narrow interpretation of the Constitution, thereby denying Tsvangirai the right to be heard. Chidyausiku said Tsvangirai could only have standing by showing that the Declaration of Rights was being infringed in respect of him directly. It was up to his supporters, not him, to bring legal action seeking relief.
Both the decision and reasoning were shocking. This flawed nature of the majority judgment was exposed by Justice Sandura’s sole dissenting voice. He explained how in the past the Supreme Court had always taken a broad view of legal standing so that real issues were determined ahead of technicalities particularly where the applicant has a real and substantial interest in the matter. “… I wish to say that in the past this court has taken a broad view of “locus standi” in applications of this nature in order to determine the real issues raised where the applicant has a real and substantial interest in the matter,” said Sandura, reminding the majority of the Supreme Court of cases in which persons acting on behalf of others had brought constitutional litigation. In the case of Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General & Ors 1993 (1) ZLR 242 (S) the CCJP had brought a case on behalf of jailed prisoners. In the case of Law Society of Zimbabwe & Ors v Minister of Finance 1999 (2) ZLR 231 (S) a body representing lawyers had brought a case challenging tax provisions. There had been many other cases of that nature.
It did not make sense to deny Tsvangirai, a presidential candidate the right to be heard on the spurious ground that he was not directly affected. Who could be more interested in an election and the changing of electoral laws than a candidate in that election? As Sandura stated, “Any person affected by a law inconsistent with the Declaration of Rights has the right to approach the Supreme Court for relief. The section of the Electoral Act which gives the President the right to amend the Act was arguably inconsistent with the Constitution. The applicant was a person adversely affected by amendments made by the President and thus had the right to approach the court for relief.” Yet Chidyausiku’s majority decision basically denied Tsvangirai the right to be heard.
It is incomprehensible how the Chidyausiku and the majority denied Tsvangirai the right to be heard except on grounds of political bias. There was no legally sound reason to deny him the right of audience. As Justice Sandura stated, Tsvangirai had the right to demand that the election be conducted in accordance with a proper law passed by Parliament.
The problem would return again in 2013, when (President) Mugabe proclaimed the election date and amended the Electoral Act using regulations under the Presidential Powers (Temporary Measures) Act. Here again President Mugabe’s conduct was blatantly contrary to express provisions of the Constitution which required any changes to the Electoral Act to be done through primary legislation. When this was challenged by the opposition, the Chidyausiku court dismissed he challenge, once again condoning plain violations of the law and the Constitution. Both these elections were carried out under unlawful legislation but the highest court in the nation condoned the illegalities.
Another contrasting case in which double-standards were apparent was the Jealousy Mawarire case which prompted the 2013 elections. Mawarire’s principal argument was that President Mugabe was violating the Constitution by failing to proclaim election dates when the tenure of Parliament was due to expire. He argued that this would affect his rights and the rights of others. One key question was whether Mawarire had locus standi. It was similar in many ways to Tsvangirai’s case just before the 2002 elections.
(To be continued next week)
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I wish to acknowledge my two friends, Charles and Tererai, who helped me in my research. They bear no responsibility however for the content of this article, all of which rests upon my shoulders.