The rule of law in Zimbabwe has suffered several tremendous knocks. It is clear that the law, judicial officials, from the lowest to the highest courts, and state lawyers have been tainted and some subverted.
However, the courts still work. Cases churn through the system at a somewhat slower rate. The question is: Does this mean there is a rule of law?
The rule of law defines a system where there are fair and just laws and practices applied by the courts (the judicial branch) independently of the executive and the legislative branch of government. The traditional branches of government are required to work independently, meaning that one should not have the power to influence any other to make decisions in its favour. They are also interdependent in that they lend authority to one another and supervise and curtail the powers of the others.
In practice in many countries, and theoretically for others, this serves justice and fairness and addresses any grievances the public may have.
They are the founding principles of a democracy. When these principles are ignored by the executive, the rule of law breaks down. This is what has happened in Zimbabwe. The public is aware that the executive branch will flout any principles and laws to achieve its own ends. How did this come about?
In the 1980s there was a functioning rule of law. Despite this in the early ’80s the government massacred its own citizens in Matabeleland (click here for more information
) with impunity.
In the early ’90s there was still some form of rule of law.
In the late ’90s, many citizens had become tired of the rule of President Robert Mugabe. He decided to fight for the continuation of his rule and a new opposition party the Movement for Democratic Change, MDC, was formed in reaction. It garnered the support of many including white citizens.
The economy in the late ’90s began to decline increasingly because of Mugabe’s policies including that of sending the army to the Democratic Republic of Congo and the paying of gratuities to veterans of the liberation struggle.
To maintain his grip on power, Mugabe enacted draconian legislation, cutting down on the freedoms of individuals and ruling with an iron fist. He enlisted the so-called war veterans who attacked white farmers killing many in a campaign purportedly aimed at land reform.
He also acted against the judiciary which he had appointed. Current Chief Justice Godfrey Chidyausiku, who was the judge president of the High Court at the time, openly criticized the decisions of the Supreme Court in a ruling that overturned one of his own in a land-related class action suit. He was later appointed chief justice after the then-chief justice Anthony Gubbay was forced to resign (click here for more information
Mugabe also carried out a campaign to intimidate and influence judges. In July 2002, one month after he ordered the release of an MDC mayor Elias Mudzuri of the capital Harare, Justice Benjamin Paradza was arrested in his chambers at the High Court just before he was about to go into court.
Another judge, Justice Fergus Blackie suffered a similar fate. In September 2002, at age 65 and after he had retired as a judge, he was arrested at his home in a pre-dawn raid. He was paraded across the city centre in handcuffs at the back of an open truck. This was two months after he had ordered the then-Minister of Justice Patrick Chinamasa to be arrested and brought to court for a contempt of court charge hearing. The minister was never jailed.
Instead Blackie spent three nights in jail before he was released on bail.
Other, more compliant, judges were awarded the farms which had been taken away from white farmers.
Certainly the perception of ordinary people in Zimbabwe is that you cannot get justice in the courts if your case is against the government, government officials, or people connected with the powerful in the ruling party.
Judicial officers of lower courts across the country are also aware that if they are perceived as being sympathetic to so-called enemies of the state then their security is not guaranteed. They have been threatened and assaulted.
When officers of the court come to work what is uppermost in their minds, if they are involved in a case that has political implications, is their own safety and the safety of their family members. Granted, they work under the most difficult circumstances. They earn a pittance. They are not respected for their legal skills or dedication.
It is therefore not surprising when we hear reports that some of them make the most unusual submissions and statements in court.
The whole system has broken down. There is no rule of law. The judicial officers and state lawyers work under the most difficult circumstances. Many consider the most important principle to be their own safety. Very few, but they are there, stick to the principle of a duty to justice and fairness.
It is certainly clear that for there to be a return to the rule of law the political impasse must first be resolved. Once this has been achieved then there must be a commission of inquiry on the operation of the judicial system. Its mandate must also include the investigation of all judicial officers and their decisions and whether it is suitable for them to continue to hold their office. Finally and most importantly it ought to recommend how to prevent another break down of the rule of law.
Archibald M. Gijima is a Zimbabwean-born attorney of 14 years experience living in Botswana. He can be reached at [email protected]