Chief Justice Godfrey Chidyausiku

….Chief Justice Chidyausiku: A judge of the revolution

By Alex Magaisa

THIS week marks the end of Chief Justice Godfrey Guwa Chidyausiku’s long judicial career which began in 1987 when he was appointed as a judge of the High Court of Zimbabwe. He leaves behind a bench that is fundamentally different from the one he joined 30 years ago. Back then he was one of the first few black judges appointed to the High Court. When Zimbabwe gained independence in 1980, the Executive and Legislative arms of the State underwent significant changes in personnel. The Judiciary was an exception to the general rule, which meant the bench that Chidyausiku joined in 1987 was still dominated by white judges, some from the colonial era. Now however, the bench is a very different. As he departs, he takes away with him what remained of that old order, for in the context of the current bench, he really was a relic of the old order.
His tenure as head of Zimbabwe’s judiciary has been eventful and controversial. For better or worse, he has left an important footprint. He presided over the judiciary at a time of tense and revolutionary political developments. The road he has travelled has been long and winding. With 16 years as the Chief Justice, he is Zimbabwe’s longest-serving head of the judiciary since independence. His predecessors, Chief Justices Gubbay and Dumbutshena served for no more than 17 years between them. Throughout this article, I shall refer to these different eras by the name of the head of the judiciary as the Dumbutshena court, Gubbay court and Chidyausiku court.
Probably the most overwhelming impression under his leadership is that the judiciary has been subject to capture by the executive arm of the state. This is a significant shift from the image of the judiciary in the pre-Chidyausiku era, when it was widely hailed for its independence from the executive and for its steadfast defence of the substantive rule of law. This is hardly surprising, as indeed, the major reason for the purge of the Gubbay court which preceded the Chidyausiku court was that the government believed it was a stumbling block. Government needed a friendlier Supreme Court at a time when it was carrying out the historic land reform process. Thus the Chidyausiku-era has been characterised by a judiciary that was strongly aligned to government and its policies. Unsurprisingly, opposition and civil society groups have always complained about the lack of judicial independence.
The main purpose of this article is to assess in some detail the judicial career of the outgoing Chief Justice through an analysis of some of the major cases that he handled. There is no better place to start than his most important legacy as a judge of the revolution — the land revolution
The revolutionary judge
There can be no doubt that the most significant legacy of the Chidyausiku era is encapsulated in his work on the Land Question. That, indeed, is the most defining legacy of his long judicial career. The decade commencing February 2000 will go down in history as a period of unprecedented and remarkable events that collectively produced what should rightly be called a land revolution on account of the sea-change that took place over land ownership and occupation in Zimbabwe. As Chief Justice and head of the judiciary, Chidyausiku was right at the centre of this revolution, and his pivotal role earned him numerous accolades and eternal praise from the ruling party and complete disdain from the farming community that was displaced from the land. Indeed, when the story is told in future, the history of the land revolution will be incomplete without an articulation of Chidyausiku’s game-changing role. To call him a judge of the revolution would therefore be an apt description. Two cases aptly demonstrate the central role played by Chidyausiku as the utility player in the prosecution of the highly controversial land revolution and it is only fitting that I give them some detailed consideration.
The Commercial Farmers Union (CFU) cases
In December 2000, the Supreme Court headed by Chief Justice Gubbay made an important ruling on the legality of land occupations that had been taking place since February of that year. Soon after the constitutional referendum, groups of peasants and war veterans had moved into commercial farms taking occupation of the land. Farmers challenged the occupations and sought eviction orders, which they got from the courts. The CFU, which represents the white commercial farmers took legal action to represent its members’ interests. The Gubbay Court effectively ruled that the land occupations were illegal and unconstitutional. It granted an interdict to the CFU requiring the State to comply with court orders that had previously been granted by the courts. In March 2000, Justice Garwe had granted an order evicting land occupiers. Later, when the Commissioner of Police was sued, another High Court judge, Justice Chinhengo exhorted the government to enforce court orders and uphold the rule of law. In November 2000, the Supreme Court had also granted a similar order. These orders had been granted by consent, meaning the government had agreed that the occupations were not in accordance with the law. Nevertheless, the government said one thing but did the opposite. Thus, while accepting that the land reform process was necessary, the Gubbay court ruled that the occupations that were taking place were not in accordance with the laid down laws of the land.
In September 2001 the Supreme Court heard another matter but it essentially involved the same parties and the same issues. However, by then, the composition of the Supreme Court had changed substantially. Chief Justice Gubbay had already been forced out of office. The government has appointed new judges to the Supreme Court, diluting the existing composition. Chidyausiku had also been appointed as the new Chief Justice, leap-frogging more senior members who were already at the Supreme Court, such as Justice Wilson Sandura. When the Supreme Court sat to hear this second matter, four of the five judges who were appointed were on the panel. The three Supreme Court judges who had sat in the previous matter were excluded. This was a new Supreme Court essentially set up to revise the decision of the old Supreme Court.
The CFU objected to Chidyausiku’s role in the matter, believing that he was biased. They made two applications, the first for the Supreme Court to be reconstituted and second, for the new Chief Justice to recuse himself from the matter. Chidyausiku was livid. He dismissed both applications holding that only he, as Chief Justice or the Minister of Justice had the power to reconstitute the court. He dismissed the application for recusal, interpreting it as a disguised attempt by the CFU to get judges that were favourable to its cause. Chidyausiku had previously accused Chief Justice Chidyausiku[PHS IS1] of having reassured white farmers that they would get judicial protection if they challenged the land reform programme. “The application to this court to reconstitute itself is therefore misconceived and without any legal foundation,” wrote Chidyausiku. “This application [for recusal] is just a disguised attempt to have the court reconstituted and should be dismissed for the same reasons. The main thrust of the respondent’s argument is that it does not like the political background of the Chief Justice and by implication it would prefer a court made up of judges with political backgrounds of its own liking.” With that, Chidyausiku refused to stand down.
In fact, Chidyausiku was so incensed that he issued a stinging rebuke directed at the CFU’s lawyer, Advocate Adrian De Bourbon SC whom he accused of “unbridled arrogance and insolence”. A furious Chidyausiku wrote:
“I would like to assure legal practitioners that they are most welcome to make representations on the composition of the court whenever they feel constrained to do so. Such representations will receive due consideration whenever they are properly made. Such applications or representations must be made with the professionalism and dignity we have become accustomed to expect from legal practitioners as officers of this court. The unbridled arrogance and insolence with which the application for the reconstitution of this court was made in this case is simply astounding and, to say the least, unacceptable. This is the first and the last time that such contempt of this court will go unpunished. Legal practitioners are reminded that this court has an inherent disciplinary power over legal practitioners as officers of this court in matters of misconduct or unprofessional conduct. This court will in future deal with contempt of this court firmly and decisively. The only reason why stern action was not taken in casu is that this case is of extreme national importance and distraction from the main issue was to be avoided at all costs.”
On the merits, the Chidyausiku court virtually reversed the previous decision of the Gubbay Court. Although the government had failed to remove the land occupiers in defiance of court orders, the Chidyausiku court ruled that the government was not in contempt of court. He ruled instead that the government had legalised the land occupations through the enactment of the Rural Land Occupiers (Protection from Eviction) Act which suspended the operation of the court orders for the eviction of settlers. Notwithstanding the fact that the Rural Land Occupiers Act was unconstitutional and that there was still chaos and lawlessness, Chidyausiku ruled that it had restored the rule of law on the commercial farms. It was clear that Chidyausiku was not going to stand in the way of a cause that he believed in so passionately, whatever the niceties of the law.
Chidyausiku’s judgment demonstrates a preference for a dry and formalistic approach to the rule of law, the focus of which is limited only to procedural legality regardless of the substantive qualities of laws. He expressed his definition of the rule of law as “its essence is that the law is supreme over decisions and actions of government and private persons. There is, in short, one law for all. The concept postulates that the exercise of all public power must find its ultimate source in a legal rule. In other words, the rights enjoyed and powers exercised must derive from duly enacted or established law. Put another way, the relationship between the State and the subject must be regulated by law.” There is no room in this definition for fundamental rights and freedoms to qualify the law for there to be the rule of law. Under Chidyausiku’s narrow definition, an unjust law which states that all left-handed persons must be banned from attending school would satisfy the requirements of the rule of law as long as it is enacted by Parliament. This is why he reached the conclusion that the mere enactment of the Rural Land Occupiers Act was an enforcement of the rule of law.
In fact, rather shockingly, he used the definition of the rule law to excuse the criminal acts that were taking place on the commercial farms. He wrote, “The presence of the rule of law does not mean a totally crime-free environment. By definition, the concept of rule of law foresees a situation in which behaviour proscribed as criminal will occur. To expect the [government] to bring about a totally crime-free environment in the commercial farming areas of Zimbabwe would be inconsistent with the concept of the rule of law and its practical application …” It is impossible to imagine how a Chief Justice could have come up with this statement as a sound proposition of the rule of law. How can expecting a crime-free environment be regarded as inconsistent with the rule of law?
Understandably, the only judge who had sat in the Gubbay Court which decided the first CFU case disagreed with Chidyausiku’s majority judgment. Justice Ebrahim warned that judges should not allow their personal or political opinions to override the law. The fact that a law was unjust did not justify courts disobeying it or condoning disobedience with the law.
In his view, courts that are sworn to uphold the law should “never allow their personal, subjective view of what constitutes justice to override the clear provisions of the law. It is not the function of the courts to support the government of the day, or the would-be government of tomorrow. It is not their function to support the State against the individual, or the individual against the State. The courts’ duty is to the law and to the law alone. Judges, as individuals, have their own political, legal and social views and opinions. But it is the sworn duty of every judge to apply the law, whatever he or she may think of the law. If a law is patently unjust, the courts can seek to ameliorate matters as far as possible, within the law, but they may never subvert the law.”
Justice Ebrahim decried the fact that the Chidyausiku court had made a wholesale change to the approach of the Supreme Court merely because there were now new judges. “A change in personalities in this court, or any other, should not mean a wholesale change in its approach,” wrote Justice Ebrahim. “As I have said, the judges of this court, as of the other courts, have their own personal viewpoints on a number of topics, whether those topics be politics, religion, social mores and so on. But we are all sworn to uphold the law, and when we do so our personal views take second place. We must follow precedents unless those precedents are clearly wrong.”
However, Justice Ebrahim was a lone voice in the Chidyausiku court packed with hand-picked judges whose appointment was designed to dilute the outgoing Gubbay court. Their job, under Chidyausiku’s leadership, was to legalise the land revolution. Part of that task required a reversal of the Gubbay Court’s decision which had ruled that the land occupations were unlawful. With the judges as direct beneficiaries of the land seizures, they had personal interests in the legalisation of the process. They were not going to rule against the government. Their judgment gave government the formal legitimacy it had been craving for.
Historical treatise on the Land Question
Although it is tempting to analyse Chidyausiku’s role on the land question on the basis of his judgments after his appointment as Chief Justice, that approach would be too narrow and would certainly not do justice to his body of work on this important issue. As a matter of fact, the most important and vivid illustration of his revolutionary approach to the Land Question came much earlier in 1990s when he was still at the High Court. The case of Davies & Ors versus Minister of Lands, Agriculture and Water Development 1994 (2) ZLR 294 (H) is evidence of Chidyausiku’s earlier footprints on this issue. It was cases like Davies which made him stand out and an obvious choice for the government when it came to reconstituting the Supreme Court in order to provide judicial backing to the land reform exercise which was so plainly being carried out against the existing rules. Mugabe and ZANU PF needed a Chief Justice who understood and believed in their cause and who would be prepared to break with judicial tradition and ignore the existing rules or the rule of law in order to promote and advance the land revolution. The Davies case demonstrated that Chidyausiku would be equal to the task. It needed a water-carrier who would do whatever was necessary, including the unsavoury shifts, in order to achieve the goal of land reform.
The facts of the case were very simple. Davies had brought an application to the High Court, challenging the designation of his farm in terms of the Land Acquisition Act (No. 3 of 1992).
(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.