Chidyausiku, rule of law and Mugabe

“The rule of law is the antithesis of the existence of wide, arbitrary and discretionary powers in the hands of the executive. It is a celebration of individual rights and liberties, and all the values of a constitutional democracy, characterised by the absence of unregulated executive or legislative power.”

THOSE who know former Chief Justice Godfrey Chidyausiku, who retired this week after long service in the executive and the judiciary, say he is a very good man. They also say he has a great jurisprudential brain and left to his own devices he would have been a terrific judge who would have left a great legacy.

MUCKRAKER
Twitter: @MuckrakerZim

Yet the truth is that his record is not that glittering. As someone who was sort of a politician and belonged to a certain bygone era, he leaves a mixed record: he made good contributions and very bad ones to local jurisprudence.

Although Muckraker is not a lawyer, he followed Chidyausiku’s career long enough to assess it robustly and fairly.

Bad politics

His politics was bad. If you doubt Chidyausiku’s politics is appalling, just read this: “I don’t think there is anybody in my generation who fails to be inspired by His Excellency, the President.

“He is the kind of a person who inspires people whether you like it or no, even his enemies talk well of him. He is the single Zimbabwean I can say who has provided more inspiration to me than anybody else …”

We will come back to this shocking bootlicking sycophancy shortly.

Suspect rulings

Chidyausiku went on to defend his flawed land judgments (one severely criticised for subverting the constitution and the rule of law, as well as other judges), saying:

“The most satisfying thing to me is the role I played in the land reform programme. Some people believe the judiciary was not independent because some of the judgments were perceived to be in favour of government. But the real reason is, I belong to that generation that fought for this country. And that is what really impressed my perception, not that I wanted to please anybody.”

Further, Chidyausiku commented on the messy process of selecting his successor which is now entangled in Mugabe’s cutthroat succession politics.

“There are times when things are not going the way they should. One of them is the way we are quarreling about my successor. That is a big disappointment, but it is nothing that we cannot overcome.”

Back to the subject of his hero, Mugabe. While the ex-chief justice is entitled to be inspired by anyone — including the North Korean leader Kim Jong-un if he so wishes — trying to exit on a high by citing Mugabe as your role model no longer has purchase in the public imagination and is in fact damaging, except when one is simply returning the favour of patronage and spoils collected. How can Chidyausiku try to defend Mugabe’s destructive legacy while at the same time inviting people to take him seriously? Mugabe’s leadership and policy failures have ruined this country Cde former chief justice, and trying to salvage anything from that rubble will only help smear your reputation. Just stay away from that.

On his land reform ruling, it is one of the worst from a jurisprudential point of view. It is like his ruling on MDC-T leader Morgan Tsvangirai’s application on the eve of the 2002 presidential election and his scandalous judgment on the Jealousy Mawarire case in 2013. Those were appalling rulings by any standard, sir. They are untenable and took this country backwards. They fuelled regression and this chaos. Surely, you can’t be proud of that.

Patronage

On his succession issue, it is as messy as how he came in. Chidyausiku was elevated to be chief justice through a campaign of lawlessness and terror against a number of his former colleagues. So what we are seeing now is just a manifestation of how he came in through partisan politics and patronage.

The truth of the matter is that some of the judges on the bench owe their positions solely to patronage rather than their talents. They are pro-regime and act as such. Sometimes they can’t even pretend that they are not delivering political jurisprudence; they simple act like hired guns and this is damaging to the integrity and image of the judiciary.

Judges are supposed to be enlightened and reputable officers of the law, not party political agents. Look at the mess we are dealing with now over Chidyausiku’s successor; it’s disgraceful.

Even journalists, not known for being the most organised lot on earth, elect their leaders in a much better way. Just last weekend they did that in Norton. The whole process was smooth and had credibility and integrity.

Gubbay legacy

At this point it would be prudent to quote Chidyausiku’s predecessor, Justice Anthony Gubbay, from a lecture he delivered in 2009 in Britain titled The Progressive Erosion of the Rule of Law in Independent Zimbabwe, to make the whole point.

Gubbay addressed the gradual erosion of the rule of law under the Mugabe regime. He referred to the practice of packing the bench with regime-friendly judges in powerful positions, treating land invasions as a political rather than legal issue, amendment of the declaration of rights to the detriment of individual rights, the abuse of the presidential pardon and clemency, intimidation of journalists and human rights defenders, the noncompliance of the government with a Sadc Tribunal judgment (as a result of the Chidyausiku’s ruling) and threats to his own personal security. Gubbay highlighted government’s disregard for the rule of law.

“Although there is a wide variety of jurisprudential thought on the complex concept of the rule of law, it is generally accepted that a society in which the rule of law prevails is one in which a climate of legality, observance of the law and an effective judiciary, are evident. It is a society in which no man is punishable, or can be made to suffer bodily or proprietary loss, except for a breach of the law as established by ordinary courts of the land. It does not mean the protection of vested interests, or unfair exploitation in society,” he said.

“It means the emancipation of the spirit of humankind from coercive constraints of fear, inequality and want. It requires that everyone should be subject to the law equally, and that no one should be above the law; that law enforcement agencies and the courts enforce and apply the law impartially. The rule of law is the antithesis of the existence of wide, arbitrary and discretionary powers in the hands of the executive. It is a celebration of individual rights and liberties, and all the values of a constitutional democracy, characterised by the absence of unregulated executive or legislative power. It is a society in which the rule of law is observed, through the mechanism of judicial review. Executive decisions and legislative enactments, outside the framework of the law, are declared invalid, thereby compelling both the executive and the legislature to submit to enjoyment, by the individual, of all rights and liberties guaranteed by the constitution. An independent judiciary and legal profession are critical elements of the rule of law. The bedrock of a constitutional democracy is an independent judiciary. A judiciary which is not independent from the executive and legislature renders the checks and balances inherent in the concept of separation of powers ineffective.”

This is the sort of solid jurisprudential thought leadership Chidyausiku must be offering, not his maze of legal mumbo jumbo on Mugabe — of all leaders — being his hero and justifying his flawed rulings.

On what planet does Mugabe live?

President Robert Mugabe’s remarks at his 93rd birthday celebrations last Saturday at Matobo near Bulawayo that it is stupid for Zimbabweans to go and look for jobs in the United States, once again showed how cocooned he is from the disastrous consequences of his calamitous leadership.

President Robert Mugabe

“What is that you get in America which you cannot get in Zimbabwe? I have not yet seen a person who, after working so many years in America, has come home with so much money, they return poor only to start looking for jobs here again.

Where were you taking your money during all those years spent in America?” Mugabe scoffed, totally missing the irony of his comments.

How on earth can Mugabe insult Zimbabweans working in the US and other countries, including South Africa across the border, when unemployment is at 95% here? He has destroyed the economy and presided over an unprecedented de-industrialisation process in Zimbabwe’s modern history.

That millions of Zimbabweans have left the country, some by swimming in the crocodile-infested Limpopo River, is testament to how Mugabe has run down the country and impoverished its people. A whole generation has watched its most productive years disappearing due to the scorched earth policies of his corrupt and incompetent regime.

Mugabe must stop taking overdoses of whatever medicine he is surviving on these days. Clearly, his delusions are making him sound increasingly bizarre with surreal remarks and absurd public comments on issues. So much for Chidyausiku’s hero!