By Everson Mushava
The state of judicial independence and integrity in Zimbabwe has been a subject of public and international debate for years, especially on the way political matters involving opposition members have been handled.
Opposition parties and the citizens at large have for long believed that some decisions by the courts were influenced by the Executive, accusing judges and magistrates of lacking decisional independence.
Recent developments where opposition and human rights activists have languished in remand prison for over 60 days after being denied bail by the lower courts have bolstered allegations that President Emmerson Mnangagwa’s government is using lawfare against its opponents, and the Judiciary was central to the strategy.
Journalist Hopewell Chin’ono and opposition Transform Zimbabwe leader Jacob Ngarivhume, MDC Alliance trio of Joanah Mamombe, Cecilia Chimbiri and Netsai Marova, among others have been detained for over 60 days after being denied bail by the lower courts.
They were released by the High Court after enduring several weeks in detention.
Surprisingly, former Health minister Obadiah Moyo was granted bail the very first time he appeared before a Harare magistrate on allegations of corruption involving over US$60 million.
The State did not even oppose bail in a case involving top police officer Erasmus Makodza, who was arrested early this year for alleged abuse of office.
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Examples of people close to the establishment being awarded bail without opposition are too numerous to mention here.
Several questionable judgments have been made on political matters.
But if ever there is anything that the ongoing saga involving Chief Justice Luke Malaba’s extension of term of office has exposed; it is the lack of confidence in the Judiciary by the parties involved, including the State.
In May, Mnangagwa extended Justice Malaba’s term by five more years using an amended provision of the Constitution that raised the term limit for practicing judges to 75.
Musa Kika, executive director of the Zimbabwe Human Rights NGO Forum, and the Young Lawyers Association of Zimbabwe challenged the extension. They cited all judges of the Constitutional and Supreme courts.
High Court judges Justices Happias Zhou, Edith Mushore and Justice Jester Charewa ruled that incumbent judges could not benefit from the amendment of the Constitution extending their term limits.
Justice minister Ziyambi Ziyambi released a stinging statement after the High Court order nullifying Justice Malaba’s reappointment.
Initially, when the matter was brought to the Judicial Service Commission (JSC), Ziyambi asked for the recusal of the judges.
Whether correctly or incorrectly, that in itself showed lack of confidence by the State in the Judiciary.
In his statement, Ziyambi accused some judges of working with civic society organisations funded by Western countries to effect regime change in the country.
He said the Judiciary required transformation, which suggested purging of judges perceived to be anti-establishment, like Justice Zhou, whom he mentioned by name, chronicling his history and how he was appointed from opposition ranks.
Ziyambi’s statement was very incisive on the State’s lack of confidence in the Judiciary.
There are some judges the State doesn’t want to sit on certain matters.
When Kika filed for contempt of court against Justice Malaba, Justice Webster Chinamora recused himself.
He claimed the JSC boss, Walter Chikwana, had met him prior to the court sitting, insinuating that he wanted to influence him to rule in favour of Justice Malaba.
Two judges remained on the bench, Justices Amy Tsanga and Slyvia Chirawu-Mugomba, who later dismissed Kika’s case.
The lack of confidence was endorsed by Justice Chinamora’s recusal and also, when Ziyambi applied for a third judge to replace him.
It showed lack of confidence on the part of Ziyambi that the two judges would be impartial.
The sole reason why Chikwana would meet judges could be that he lacked confidence in them and wanted to make sure they gave him his word on the matter.
On July 14, Marx Mupungu will be before the Constitutional Court, represented by Lovemore Madhuku seeking to overturn the High Court ruling against Justice Malaba.
The matter will be heard before Deputy Chief Justice Elizabeth Gwaunza with other judges cited in the matter by Kika.
That judges, who are litigants in the matter will preside over the case shows lack of confidence in the other judges.
The lack of trust in the Judiciary was also exposed by former High Court judge Erica Ndewere, who accused Justice Malaba of victimising her for ignoring his “unlawful” directive to deny bail to former Labour minister Priscah Mupfumira on charges of abusing National Social Security Authority funds and MDC Alliance deputy chairperson Job Sikhala on inciting public violence charges.
Justice Ndewere’s case exposed the rotten state of affairs in the Judiciary.
“. . . In addition, the alleged complaints amount to victimisation in that I refused to comply with the said unlawful order,” Justice Ndewere said then.
“The allegations are not only false and malicious, but are calculated to compromise my independence as a judge and give the second respondent (Justice Malaba’s) unlawful power to control and direct judges to act upon his instructions as it suits him.”
She also claimed judges were working in fear because Justice Malaba used the JSC to spy on them, also claiming they were instructed on how to determine matters.
Justice Ndewere’s claims cannot be denied considering that last year, Justice Malaba ordered judges to hand over all judgments to him for review before they were handed down.
It showed CJ Malaba didn’t trust the judges and thus, wanted to see their ruling before they are handed down.
For long, the issue of judicial independence and integrity has been a banal and contentious issue in Zimbabwe, but the Justice Malaba issue has deepened the mistrust.
The key message from the way the case has been handled so far is that Zimbabweans, including the State, have no confidence in the Judiciary.
It explains why Mnangagwa immediately amended the Constitution to give himself powers to appoint judges.
This means he wants to purge all judges seen as anti-establishment, possibly the transformation of the Judiciary meant by Ziyambi in his outburst after the High Court ruling against Justice Malaba.
The Justice Malaba case has exposed the deep-rooted problem Zimbabwe has, Executive interference in the Judiciary that has destroyed confidence in the same.
If claims by MDC Alliance activist Tungamirai Madzokere that MDC-T officials told him that their leader Douglas Mwonzora negotiated with Mnangagwa for his release from prison after serving for eight years for “murdering a police officer” as a trade-off for supporting the controversial Constitutional Amendment Bill No 2 are true, then the issue of judicial independence will remain a pipe dream in the country.
