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Contempt of court has lengthy record

Contempt of court has lengthy record

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 

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 

Magaisa is based at Kent Law School, University of Kent. He can be 
contacted on: [email protected]



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