Please reload

Recent Posts

The Big Saturday Read: A brief history of judicial capture in Zimbabwe

April 8, 2016

Alex T. Magaisa

 

 

Last week, most Zimbabweans watched in awe as the Constitutional Court of South Africa delivered a seminal judgment on executive and parliamentary accountability. In a powerful judgment, Chief Justice Mogoeng Mogoeng was critical of South Africa’s Presidency and Parliament, declaring that they had violated the country’s constitution. It was an important decision that caught worldwide attention.

 

There were murmurs of envy among Zimbabweans, encapsulating a belief that our southern neighbour is blessed to have an independent judiciary, that is bold enough to express such criticism against the country’s leader and Parliament. It’s something that we have not been accustomed to during recent years in our own country, such is the low confidence that most people have in the judiciary when it comes to matters with a political theme.

 

But things were not always like this for us. A younger generation of Zimbabweans who have grown up in the shadow of the current judiciary may not know, let alone recall, a time when Zimbabwean courts commanded high respect worldwide both for the quality of their jurisprudence and defence of their independence from the executive. Indeed, there was a time when the Supreme Court of Zimbabwe under the leadership of Chief Justices Dumbutshena and Gubbay in the 1980s and 1990s produced important human rights judgments which have been cited as legal authorities in major jurisdictions.

 

But something happened along the way and it wasn’t pretty. The story of the Zimbabwean judiciary is also an instructive one for South Africans, even as they bask in the present glory of their Constitutional Court’s courageous and exemplary judgment.

 

To understand the story of the Zimbabwean judiciary, you have to appreciate the periods under different Chief Justices since independence in 1980. In that period, Zimbabwe has had four substantive Chief Justices: Fieldsend (1980 – 1984); Dumbutshena (1984 – 1990); Gubbay (1990-2001) and Chidyausiku (2001- Present). With Chidyausiku scheduled to retire next year, we are destined to have a fifth Chief Justice in the next twelve months. While each of these eras had their distinctive elements, the most obvious point distinction is between the broad era of the first three Chiefs Justices up to 2001 and the era of the Chidyausiku court thereafter. Indeed, the most revolutionary changes to the Zimbabwean judiciary occurred in the period around 2001, marking a significant point of departure in its philosophy, direction and the quality of its jurisprudence.

 

The early years: Security v Human Rights

 

The first five years of independence had few conflicts between the executive and the judiciary partly because, during that period, there was a transitional provision in the Lancaster House Constitution that saved pre-existing legislation from legal challenges against the standard of the Declaration of Rights.

 

However, there were still some cases which resulted in conflicts between the two arms of the State mainly around security-related issues. Two high profile cases involved the treason trial of Dumiso Dabengwa and Lookout Masuku, former ZIPRA commanders and the sabotage trial of six white officers of the Air Force of Zimbabwe who were accused of bombing its aircraft. In both cases, the government was infuriated by the acquittal of the accused persons, which resulted not only in vitriolic attacks on judges by ministers but the immediate re-detention of the acquitted persons. Dr Herbert Ushewokunze, who was the Home Affairs Minister at the time, accused the judges of showing “class and racial bias”, and of not being “in tune” with the government.

 

There was also the case of Edgar Tekere, a senior Minister Secretary-General of ZANU PF, who protested against Justice Pittman, a white judge who presided over his murder trial after leading a group that killed a white farm manager near Harare. When he was acquitted on the basis of a majority vote by two non-white assessors, Tekere issued a strongly-worded attack on the white judge, accusing him of being a racist.

 

Perhaps the most high profile clash between the judiciary and Parliament during the Dumbutshena era involved the former Rhodesian leader, Ian Smith. Smith had delivered a speech in South Africa supporting the Apartheid regime. Smith was a member of parliament and his speech led to contempt proceedings. He was found guilty and punished by suspension without wages and allowances. Smith challenged parliament’s verdict and punishment in court. Didymus Mutasa, who was the Speaker of Parliament issued a certificate of parliamentary privilege seeking to sop court proceedings. The High Court agreed to stay proceedings but the Supreme Court overturned the decision. Dumbutshena who delivered the judgement held that the certificate of parliamentary privilege had to be examined to ensure legitimacy of the claimed privilege. He went further and held that the deprivation of wages and allowances was unlawful. Mutasa was infuriated by this decision and reacted angrily, castigating the judges for allegedly interfering with Parliament. The Supreme Court judges issued a statement defending their decision, and arguing that Parliament could not be the judge in its own cause. Other professional bodies, including the Law Society and the academic community criticised the Speaker for undermining the rule of law and the judiciary. The Speaker only relented when MPS disagreed with his approach and voted to restore Smith’s wages and allowances. The judiciary could easily have been intimidated, but it stood its ground protecting the rights of a highly unpopular politician.

 

What is apparent from the early years of independence is that the tensions between the judiciary and the executive arose from the competing interests of the State in respect of security and the judiciary’s desire to protect individual liberties. The precarious security situation around the new State was used to justify the retention of the State’s repressive security apparatus, including laws and institutions inherited from the colonial era. Although the Lancaster House Constitution guaranteed several civil and political rights and freedoms, they were vastly eroded by the State of Emergency, which ironically, was a continuation from 1965 just before Smith’s Unilateral Declaration of Independence (UDI).

 

Writing in 1986 about this security situation as a source of tension between the executive and the judiciary, the Lawyers Committee for Human Rights stated, “The Emergency Powers Regulations have had a corrosive impact on individual rights ranging from personal liberty to freedom of speech and association. The judiciary, on the other hand, has played a positive role in promoting respect for individual rights and for the rule of law generally”.

 

The government justified the use of these draconian methods, such as preventive detention on the basis of protecting state security. Writing in The Parliamentarian on 13 February 1984, the then Prime Minister, Robert Mugabe, stated: “… our government is charged with the security of the nation, which is still under a State of Emergency. The combination of destabilisation efforts of South Africa and the acts of dissidents and bandits in some parts of Zimbabwe have necessitated a continuous State of Emergency in Zimbabwe since independence …. In some cases, we have found it essential to resort to preventive detention …”

 

As we have already observed, when the judiciary made rulings against government in such cases where officers used unlawful methods including torture, some government ministers reacted harshly, accusing the courts of supporting spies and malcontents. Nevertheless, despite the occasional tensions, the relationship was not openly hostile. Indeed, the harsh ministerial comments directed at judges were more of exceptions than the general rule. As the Prime Minister, Robert Mugabe himself pointed out at the time in 1984: “some members of the executive have publicly criticised some … decisions by our judges; but the government as such has ignored these criticisms, preferring to treat them as the exercise by those concerned of their freedom of speech. The government has not, qua the government, by word or deed interfered with the independence of the judiciary”. There was at this stage an effort at the highest level to respect and protect the courts.

 

This is in stark contrast to the position President Mugabe would take after 2000, when he openly defied and disowned the same courts. On 14 December 2000, at the ZANU PF conference, Mugabe told delegates, “The courts can do what they want. They are not courts of our people and we shall not even be defending ourselves in these courts”. He added: “The courts can do whatever they want, but no judicial decision will stand in our way …”

This was a total change from the position that Mugabe had expressed in the early years of independence. But what had changed to warrant such an open attack on the courts from the country’s President?

 

The Land Question

 

To understand Mugabe’s statement in 2000, openly defying and disowning the courts, it is necessary to turn to the other issue that defined the relationship between the executive and the judiciary in this period: the land issue.

 

Apart from security, the land issue was by far the most critical point of conflict between the executive and the judiciary. The handling of the land cases would define the stark difference between the Gubbay Supreme Court and the Chidyausiku Supreme Court that succeeded it in 2001. In essence, the Gubbay Court ruled against the government’s Fast Track Land Reform Programme (FTLRP), while the Chidyausiku Court declared that it was legal legal. Indeed, it was the land issue that resulted in revolutionary changes to the composition of the judiciary, with the removal of the old judges and the appointment of new, politically correct judges. What happened at the time can be analysed through the prism of “judicial capture”, because that is the charge which each of the two courts has faced.

 

I use the term “judicial capture” to explain a situation in which a segment of society has gained a disproportionate influence over the judiciary so that instead of serving the public interest, the judiciary ends up serving the interests of that particular segment. The more common terminology is to say the judiciary lacks independence but this term is often used in reference to the State’s interference in the judiciary. I prefer “judicial capture” in the broad sense because it reflects how the judiciary can be compromised by a host of other actors beyond the State.

 

Judicial capture by white farmers?

 

It was certainly the view of government, the ruling party and elements within or connected to them that the judiciary before 2001 had been captured by and served the interests of white commercial farmers. It was similar to sporadic criticism of the judiciary in the 1980s, when the courts ruled against the State in security-related cases, and some ministers accused the judiciary of siding with racist white elements that were determined to destabilise the new government. The acquittal of the six alleged Air Force saboteurs on the basis that evidence had been obtained through torture was dismissed by government as a mere technicality.

There are others who have also argued that the judiciary reflected the interests of capital and the petit bourgeoisie. Writing in 1998, University of Zimbabwe law academic, Munyaradzi Gwisai argues that in the late 1990s the Gubbay Supreme Court capitulated to the State when it began to make pro-government rulings. An example was the case of civil servants’ bonuses in which the court backed government’s draconian regulations. Writing in the 1980s, University of Zimbabwe law academics Kempton Makamure and Shadreck Gutto also questioned some of Supreme Court judgments on a similar basis.

 

Nevertheless, the irony of criticism against the judges – when they were accused by ministers of having a colonial mentality  – obscures the fact that all but one of the judges on the bench in 2000 had been appointed by the post-independence government. Of all the judges, only Gubbay, the Chief Justice at the time, had been appointed before independence in 1977. All the other judges were appointed after independence. In fact, while the colonial judiciary was retained at independence, most of those judges had left by 1986, leaving only Gubbay from that era. Furthermore, when Mugabe had a chance to elevate a black judge to Chief Justice in 1990 after Dumbutshena’s retirement, he chose to promote Gubbay ahead of black judges. In this regard, Gubbay has revealed how unexpected his appointment was. “I was never told why the President chose me to succeed Enoch Dumbutshena as Chief Justice. It was unexpected. I did not regard myself as in the running.” He also explains that he had actually written to Mugabe earlier, suggesting an extension of Dumbutshena’s term for a further two years on account of his “outstanding qualities” which he thought the court could continue to benefit from. But his special request was declined. Therefore, contrary to Mugabe’s later rhetoric disowning the courts, these were his judges that he had appointed freely, willingly and without duress. They were his courts.

 

Why retain the colonial judiciary in 1980?

 

At this point, it is important to ask why Mugabe chose to retain the colonial judges at independence, to appoint more white judges and to elevate Gubbay in 1990, when he had opportunities to re-constitute the judiciary? This would have obviated the need to disown the courts 20 years after independence, as he did in 2000. In fact, he had some good incentives to change the judiciary: first, the entire judiciary at independence was exclusively white without a single black judge. Second, the nationalists were already dissatisfied with the composition of parliament, where the white minority had 20 reserved seats in the House of Assembly and 10 in the Senate. Writing his article, “Struggling for Nationhood: The Birth of Zimbabwe” in the Encyclopaedia Britannica of 1982, Mugabe described this parliamentary composition as giving a “disproportionate racial representation to the white community”. In these circumstances, one would have expected Mugabe to take immediate steps to transform the exclusively white judiciary. However, he didn’t, preferring to keep the old judiciary, which he would later disown.

 

Why didn’t he make changes sooner?

 

A generous view would be that Mugabe favoured an appointment system based on meritocracy. Another kind view is that Mugabe was motivated by the spirit of reconciliation, which he had eloquently expressed on the evening of 4th March 1980, the day of his dramatic election victory. However, with the benefit of hindsight and knowing what Mugabe has done since then, a question that lingers is whether he was sincere at all when he pronounced that reconciliation policy in 1980.

 

Mugabe’s defenders would argue that he genuinely meant it but that his hand of reconciliation was spurned in those early years. They might cite the 1985 general elections, where white Zimbabweans still voted on a separate “white roll” and Ian Smith’s party, the Conservative Alliance of Zimbabwe (CAZ), won 15 out of the 20 seats – a resounding victory for Mugabe’s adversary, which was also read as a snub against him. A more moderate party, the Independent Group of Zimbabwe (IGZ) which had been formed by white liberals to counter Smith’s CAZ performed dismally in the elections. One state paper, The Chronicle summed up the sentiments, in an editorial on 1 July 1985 headlined: “Whites showed Prime Minister their true colours”. It went on to say, “The majority of the white electorate have clearly shown that they are not capable of changing, that they have not reconciled themselves to the new order now prevailing in Zimbabwe …”

 

A less generous perspective on Mugabe’s reconciliation policy is that it was merely a necessary and unavoidable product of the time. Writing in 1986,  Ibbo Mandaza, head of Harare think-tank SAPES, suggested that the reconciliation policy had been forced upon Mugabe by circumstances of the time. According to Mandaza: “The policy of reconciliation and national unity became almost necessary and even inevitable in these difficult circumstances, if only to avert any opportunities for enemies (within or without) to lure this and that faction to the detriment of national security”. The newly formed State was in a precarious position facing threats from inside and outside its borders. It was necessary to heal the rifts with PF ZAPU, and with the whites, who still controlled the structures of the State, including the military. The reconciliation policy was necessary to assuage the fears of the minority white community who were apprehensive about living under a new black government led by a man previously described by Rhodesian politicians and the media as a radical and dangerous communist. Retaining the old judges was consistent with the policy of keeping civil servants, top security commanders, while protecting farmers and industrialists. Mugabe was desperate to demonstrate that his new government was not vindictive and that whites were welcome to stay. The only two judges who left early were the Chief Justice McDonald and another judge of appeal after they had indicated earlier that they were not prepared to serve under a black government.

 

Another factor for retaining the colonial judiciary was a lack of confidence even among the nationalists in the ability of Africans to manage affairs of the State. According to Mandaza at independence: “some of them [African nationalists] doubted their own capacity to rule efficiently without the assistance of the whites”. Some of them had lived in newly independent African countries and had attributed the deterioration in those countries to the rapid flight of white skills after independence. This may have influenced them against appointment of more black judges and making wholesale changes to the judiciary.

 

This was coupled by the obvious shortage of skills and the fear of a skills deficit if there had been a mass exodus of whites who occupied these positions before independence. Before independence there was not a single black judge on the Rhodesian bench. Dumbutshena became the first black judge when he was appointed on 4th May 1980. The simple fact is that the new government did not have a pool of black judges or experienced candidates to choose from even if it wanted to, so it had little choice but to import judges, which it did – from Tanzania and the Caribbean, or to stick with the colonial judges.

 

I have gone to these lengths to demonstrate the fact that while Mugabe had ample room to mould the court to his preference after 1980, he chose instead to not only keep members of the old judiciary but to continue appointing judges, including white judges, on the basis of merit rather than political affiliation. Contrary to his later statements disowning them, these were his courts, and he had appointed all the judges. As I will now demonstrate, it was only when the courts became an impediment in his political ambitions and programmes that he decided to dispense with meritocracy and chose the path of political correctness as the guiding selection principle of judicial appointments. In that way, the judiciary became captive to the government and in particular, the ruling party.

 

The “Essential Features” speech

 

The genesis of the conflict between the Gubbay court and the government over the land issue goes back to January 1991, when the newly appointed Gubbay delivered the traditional Chief Justice’s speech at the opening of the Legal Year. In that speech, Gubbay set out an important view on constitutional interpretation. Derived from Indian jurisprudence, the Essential Features Doctrine is that the constitution is built on certain fundamental pillars which, if disturbed by amendment, could cause the entire constitutional edifice to crumble. He used this to argue for the position that if the government chose to amend the constitution in a manner that would affect its fundamental pillars, the court would have to regard those amendments as unlawful and contrary to the constitution. “It is the duty and function of the judiciary to protect the constitution against such damage,” he argued.

 

This was directly connected to the land reform programme which the government was planning to undertake after the expiry of the entrenchment period in 1990 during which it could not amend the restrictive property rights clause. One of the proposed amendments was to remove the power of the courts to adjudicate disputes over the fairness of compensation for land acquisitions. Therefore, Gubbay’s speech was essentially a criticism these proposed reforms.

Needless to say, the speech caused an uproar in government circles and tensions between the executive and the judiciary, with Mugabe calling upon the Chief Justice to resign if he did not like the laws made by parliament. The view was that the Chief Justice had made a premature pronouncement on an issue that was likely to come before his court in a future case. Indeed, ten years later in January 2001, the matter was picked up by Chidyausiku, who was the Judge President of the High Court. He went back to the 1991 speech and delivered a withering attack against Gubbay. In an unprecedented attack, Chidyausiku accused his boss of displaying favouritism towards the white farmers. He argued that the 1991 speech had given reassurance to the white farmers that they would be successful if they brought a challenge to the courts of law. It is a charge that Gubbay rejects citing cases where his court had ruled in favour of government on land and that in another case where the court ruled against the government in 2000, the order had been granted with the consent of government. Indeed, one of the judgments on 17 March 2000 declaring the land takeovers illegal had been granted by High Court judge Paddington Garwe, with government’s consent that there had been a breach of law.

 

Nevertheless, this judicial tension spilled into the courts of law. In 2001, in an unprecedented move, after Chidyausiku was appointed Chief Justice to succeed Gubbay, he and three other newly appointed Supreme Court judges reversed a previous decision of the Gubbay court, ruling instead that the FTLRP was lawful and constitutional. It was a decision which the government sorely needed as it conferred legal legitimacy of the land reform programme.

And so it was land that became the defining issue in the relationship between the executive and the judiciary and the distinguishing factor between the Gubbay and the Chidyausiku courts. The Gubbay court’s approach was regarded as supportive of the white farmers, while the Chidyausiku court took the opposite approach of being pro-government. If the charge against the Gubbay court was that it sympathised with the white farmers, then the Chidyausiku court was also guilty of sympathising with government. The reality of course is that the Gubbay court had simply interpreted the law as it was and in fact government had consented to the order. If there was anything that stood in the way of land reform as desired by government, it was not the court but the law. Indeed, in an act that exonerated the Gubbay court’s interpretation of the law, government was compelled in 2005 to pass Constitutional Amendment No. 17, which sought to legalise the FTLRP in retrospect. It was government’s acknowledgement that the actions before had been illegal but were now being granted legality. Therefore, the courts they had disowned had interpreted the law correctly, as passed by Parliament. The decisions were merely inconvenient, but not wrong at law.

 

This judicial capture by government and the ruling party became complete when some judges became direct beneficiaries of the FTLRP. This circumstance gave them a direct interest in the cause in respect of which they were expected to pass judgment.

 

Political role

 

This had broader consequences on the general approach and direction of the judiciary in politically-related matters. It was impossible to isolate judicial support for the land reform programme and the broader political challenges which affected government and the ruling party. The government and the ruling party carrying out the land reform exercise required support, as the fear was that the whole exercise faced collapse and reversal if the ruling party lost political power. This is a matter in which judges, as beneficiaries of the FTLRP had a direct interest. The major opposition party, the Movement for Democratic Change (MDC), was portrayed as a puppet of the white farmers and the West, created to represent white interests and aiming to reverse the land reform programme. It’s hardly surprising, therefore, that the judicial capture post-2000 went beyond the land issue and included electoral issues. Independent observers and the opposition parties felt that when it came to political and electoral disputes bar a few exceptions, the judiciary became compromised in favour of the ruling party.

 

A classic example is the handling of election petitions following the controversial parliamentary elections in 2000, in which the MDC narrowly lost to ZANU PF. Losing candidates from the MDC challenged the conduct and outcome of elections in their constituencies. For the first time the High Court changed from its traditional system where cases were allocated on a rotational basis, to a system where the Judge President handpicked judges on an arbitrary basis, opening the system to abuse and favouritism. Later, in December 2000, President Mugabe issued a proclamation under the Presidential Powers Act, seeking to validate results in 37 constituencies which had been challenged. The Gubbay Supreme Court ruled that this proclamation was invalid and unlawful as it infringed rights of access to court for the determination of civil rights. Nevertheless, the election petitions and appeals at the High Court and Supreme Court were deliberately delayed until parliament’s term expired in 2005, at which point it became a purely academic exercise and a waste of time. What was the point of continuing the legal challenge when the MPs had already served their full terms? The judiciary had played its role in frustrating the opposition’s electoral challenges.

 

In 2013, when Jealousy Mawarire brought a case before the Constitutional Court, demanding that the delay in setting election dates was a breach of the constitution and his rights, by a strange process of reasoning, the court granted the order. At first sight, it is a case that seems to advance the rights of an individual and the public interest, but on scrutiny the legal reasoning was severely flawed and the intention was essentially to cause an election. The dissenting judgment by the Deputy Chief Justice made sense, but he was a lone minority. Later, after SADC recommended a postponement of elections and asked government to request an extension from the Constitutional Court which had the 31 July limit, the court refused. It was a deliberately weak application by Patrick Chinamasa, the Justice Minister at the time, whose party did not want the extension but the court went along with the plan to prevent an extension, snubbing the regional body’s recommendation. And when the opposition parties demanded the production of the voters’ roll, the courts made some strange rulings which effectively allowed the Registrar-General to avoid his legal obligations. In one case, a High Court judge stated that Mr Mudede should produce the electronic copy of the voters’ roll, but only after his allegedly broken computer had been fixed, a weak order which gave Mudede room to avoid enforcement. When the opposition parties demanded access to voting materials in order to secure evidence for their electoral petitions, the Court rejected the applications on flimsy technical grounds. There is no space t go into much detail on these cases, but an analysis of legal events during the 2013 elections is the subject of work I’m writing and may be included in a future BSR.

 

Removing judges and packing the bench

 

The removal of judges in 2001 was achieved through intimidation, harassment and threats of violence. A typical illustration of this was the invasion of the Supreme Court building by war veterans, led by Joseph Chinotimba, who is now an MP.  Gubbay describes the scene on the 24th November 2000,

 

“The mob … shouted political slogans and even called for the judges to be killed. They stood on chairs, benches and tables in a show of absolute contempt for the institution of the courts … Such deplorable behaviour sent the clearest message that the rule of law was not to be respected. The invasion lasted an hour …”

 

The government did not condemn this conduct. Instead, Patrick Chinamasa, then Minister of Justice told Chief Justice Gubbay and his fellow judges that the government could no longer guarantee their safety. Chief Justice Gubbay was forced to negotiate an early retirement. It was an ignominious end to a long judicial career that had begun under the Smith regime in 1977, and had surprisingly received a late and unexpected flourish when President Mugabe appointed him to head the judiciary.

 

The removal of the old judges opened the way for the second method of effecting judicial capture, which was to pack the bench with politically correct replacements. This completed a long process that Mugabe had started with a policy of reconciliation in 1980 before it was eventually abandoned after 2000. What was an exclusively white judiciary at independence in 1980 is now exclusively black. If the inherited judiciary was a reflection of colonial interests, the 2016 judiciary suffers the charge of capture by political elites.

 

Echoes of UDI

 

One might also draw a comparison between the Chidyausiku court and the Rhodesian court headed by Chief Justice Beadle at the time of UDI in 1965. Then, the Rhodesian judges were faced with a patently illegal regime, which had reconstituted itself under a new constitution. Were they to quit or to acquiesce and recognise the rebellious regime? Writing about the situation at the time, former judge of the Rhodesian High Court, Benjamin Goldin QC has stated, “When faced with a distinct likelihood of a declaration of independence, they were obviously concerned about it as judges and citizens”.  They had family, property and their livelihoods in Rhodesia. In his account he explains how the judges chose to remain in office, eventually giving recognition to the rebellious regime.

 

After initial resistance and prevarication, the judiciary eventually capitulated with Chief Justice Beadle stating in one judgment: “I might point out that de facto governments ripen as a matter of course into de jure governments.” The argument was that the UDI government was in effective control and for that reason had to be legally recognised. However, two judges – Fieldsend and Young – resigned in protest. One of them, Fieldsend was later rewarded with the post of independent Zimbabwe’s first Chief Justice , partly recognising the principled stance he had taken in that historic period.

 

Therefore, if the Chidyausiku court capitulated and recognised the legality of the land reform programme against the strict rules of the law, one might say it behaved no differently from the Beadle court during UDI which capitulated to the illegal regime on grounds of effective control when the legal rules had clearly been violated. This demonstrates some of the commonalities between the colonial and the post-colonial benches. Speciafically, the common denominator is that when faced with difficult political choices affecting their livelihood, judges are faced with two choices: quit or capitulate. Faced with difficult political decisions, both in Rhodesia and Zimbabwe, a few judges chose to quit but others capitulated and stayed, becoming captives of the State.

 

Conclusion

 

There are lessons in this Zimbabwean saga for our neighbours in South Africa. South African judges have done well so far to resist capture by the State, but so did our own judges up to a certain point. In celebrating their success, it must be remembered that Zimbabwean courts were not always what they are today. They used to be where South African courts are now – showing boldness, courage and conviction in defending the constitution even against an executive backed by a powerful majority.

 

There are some similarities in our history, the same notions of reconciliation and accommodation that defined the beginnings of our newly independent states. Just as their government has yet to deal with the question of significant racially-defined inequalities in their diverse population, their courts may in future be called upon to deal with such difficult legal disputes. The land question did more to affect our judiciary than any other issue. There are more stern tests that will confront South Africa’s Constitutional Court and the hope is that it will deal with it better than our own courts ever did. South Africans have the advantage of a bigger, more complex country, and probably more robust mechanisms and safeguards to prevent abuse. But still, it wouldn’t hurt them to look across the Limpopo and draw some lessons both on what to do and what not to do.

 

waMagaisa

 

wamagaisa@gmail.com

 

I have used a number of sources in writing this article, which include:

 

Zimbabwe: Wages of War – A report of the Lawyers Committee for Human Rights (1986)

 

Bennie Goldin QC, The Judge, the Prince and the Usurper – from UDI to Zimbabwe Vantage Press (1990)

 

Ibbo Mandaza, Zimbabwe: The Political Economy of Transition 1980 – 1986 Codesria Book Series (1986)

 

Anthony Gubbay, The light of successive Chief Justices of Zimbabwe in seeking to protect human rights and the rule of law Lecture at Mariam Rothschild & John Forster Human Rights Trust (2001)

 

Robert Mugabe The Parliamentarian on 13th February 1984

 

Share on Facebook
Share on Twitter
Please reload

Follow Us
Please reload

Archive
  • Facebook Basic Square
  • Twitter Basic Square
  • Google+ Basic Square
Big Saturday Read © 2018 All Rights Reserved
Content on this website is developed exclusively for this platform. Unauthorized Duplication is a violation of Applicable Laws.