The Big Saturday Read: The law and politics of selecting Zimbabwe’s new Chief Justice
On 12th December 2016, four candidates will be interviewed for the top job in Zimbabwe’s judiciary. The current Chief Justice, Godfrey Chidyausiku is due to retire next year, when he reaches the age of 70. According to the new Constitution of Zimbabwe, judges retire at 70 and cannot serve beyond that age. It is the end of Chidyausiku’s long and controversial judicial career.
The Constitution introduced a new system of appointing judges. They have to go through a system of public interviews. The idea was to promote transparency in the process of appointing judges. A number of judges of the High Court and the Supreme Court have already gone through the new system and it has been a revelation. Among other things, it has exposed aspirants who were clearly ill-prepared for judicial office.
It is a radical departure from the old system which was shrouded in secrecy. The chief actor in the old system was the Minister of Justice. Consultations were done privately, and it allowed the Minister to handpick preferred candidates before recommending them to the President. It was an elitist system which was amenable to judicial capture. The public had no input whatsoever. Oft-times, the public knew of new judges after appointment. The new system allows the public to nominate candidates and for the process of appointed to be conducted publicly, through public interviews. Now, however, the Judicial Services Commission conducts public interviews, after which short-listed candidates are presented to the President for final selection.
The President still retains powers to select the final candidate from the shortlist but it is an improvement on the old system. At least the process is now more public that it was before. On 12th December, members of the public will be able to witness the process in operation. It will be hugely embarrassing if the President ends up appointing a candidate who would have performed dismally during the interviewing process.
This article provides an in-depth assessment of the four candidates who have been nominated for the top job in the judicial system. Who are they? What have they done? What is their record in the judiciary? Ultimately, however, as this article demonstrates, the final choice is highly political. When I started researching this topic, I thought it would take no more than 3,000 words. But this is an important process. An in-depth understanding of the candidates is critical. In the end, the article got to over 10,000 words. It is a long read. But I hope by the end of it, readers will have gained a better understanding of the candidates vying for the most important job in the third arm of the state. Unlike Parliament or the Executive, members of the public do not have the power to vote members of the judiciary into office. The media, and legal analysts have an important role to provide scrutiny of these candidates. This is my modest contribution to this process.
Before I commence an analysis of the candidates, I must say a few words about the politics of appointing the Chief Justice, in order to place the on-going process into context.
Politics of the Chief Justice role
A quick review of the Chief Justice position in Zimbabwe reveals that it is a highly politicised role and the appointment process is subject to immense political influence. This is probably not surprising, given that the Chief Justice is the head of the third arm of the state and is appointed by the head of the executive, who is a politician. The political nature of this process of appointing judges to the top court is not a phenomenon that is unique to Zimbabwe, as the American experience in relation to appointment of judges to its Supreme Court shows.
Reading the history of UDI, when the Smith regime unilaterally declared independence from the UK in 1965, it is clear that the Chief Justice of the time, Sir Hugh Beadle, was a key political player. Although he was the head of the judiciary, he was also a political adviser to the Governor, Her Majesty’s representative in the colony. Documentary evidence shows the Chief Justice shuttling between Smith and the Governor, trying to find a political settlement after Smith’s rebellion.
At one point, during the tense period, he even moved into the official residence of the Governor. The political role of the Chief Justice was fairly obvious.
The political tensions became more evident when the courts were called upon to make a decision on the legality of the new rebellious UDI government of Ian Smith. This was demonstrated in the famous case of Daniel Madzimbamuto v Lardner-Burke and others (1968), one of the greatest and most controversial cases in constitutional history. While most judges had initially criticised the rebellion, eventually, they, including the Chief Justice, succumbed and ruled that the UDI government was legal by virtue of the fact that it had effective control of the country. The judges had bowed to the politics. In effect, the law had followed the politics. However, two judges, Justice Fieldsend and Justice Dendy Young occupy an important place in history as two judges who, acting on principle, resigned in protest at the courts’ acceptance of the rebellion.
Later, when independence negotiations were taking place at Lancaster House in 1979, the issue of the Chief Justice came up for debate. The nationalists were completely opposed to the Chief Justice at the time, Chief Justice Hector McDonald. They had nicknamed him “The Hanging Judge” having carved up a notorious reputation for sending captured ZANLA and ZIPRA guerrilla fighters to the gallows during the struggle. They did not want him to continue after independence. For them, he was a bad judge and he could not be part of the new system. For his part, Chief Justice McDonald had been critical of the nationalist leaders, vowing to resign if they ever won power. In the end, he presided over the swearing-in ceremony at independence in 1980 and served for a few months before going into early retirement. In effect, he had been forced out by the political circumstances, demonstrating yet again the political character of the role.
The new Chief Justice appointed in his place was Justice Fieldsend, one of the two judges who had resigned in the wake of the Madzimbumuto case. Clearly, the new nationalist government trusted him and the appointment was also a gesture of goodwill after his principled stand during UDI. However, since he was a white judge and had experience, his appointment was also political in that it assuaged fears of the white minority population who might have been daunted by overnight changes to the judiciary. Having Justice Fieldsend as the Chief Justice was an important bridge between the old order and the new order. The result was that while the executive and parliament were dominated by the black majority, the judiciary was dominated by judges from the old order. It was a political balancing act.
Change would come gradually, however, with the elevation of Justice Dumbutshena to the top post of Chief Justice in 1984. Prior to independence, there were no black judges. Dumbutshena was first appointed to the High Court and after gaining some experience, he was elevated to the Supreme Court as Chief Justice. This was an act of political engineering of the judiciary as part of the process of transformation of state institutions. This is why Dumbutshena leap-frogged older and more experienced judges. The political reasoning was that new Zimbabwe needed a judiciary that reflected the racial diversity and composition of the country.
The appointment of Gubbay as Chief Justice in 1991 after the retirement of Dumbutshena was a surprise, even to Gubbay himself. According to Gubbay, he had not expected the appointment. It remains a mystery why Mugabe chose him ahead of black judges given that at that time, government was free to carry out the land reform programme, which had been stalled by the ten-year constitutional entrenchment of property rights. Perhaps Mugabe was keen to be seen as a fair and impartial man who did not pander to racial prejudices. After all, at the time, he was a darling of the international community. However, the forced retirement of Chief Justice Gubbay in 2001 was obviously motivated by the politics of the day which will be explained below. Equally, the elevation of Chidyausiku to take over from Gubbay as the new Chief Justice ahead of more experienced judges was also highly political, as will also be revealed below.
At this point, it suffices to state that the process of appointing the new Chief Justice will naturally be a very political affair. The choice will reflect the political interests of the ZANU PF government, but within the context of the on-going succession politics, where factions are jostling for power, the ultimate choice is more likely to reflect the interests of the more powerful political faction. It will probably not be the best judge on merit who gets the job, but the candidate who has the greatest favour of the more powerful political faction in ZANU PF. The analysis that follows will suggest who that candidate might be.
Protecting the land revolution
A key factor in the choosing the next Chief Justice is whether or not the chosen candidate will protect the land revolution. The decade after 2000 is historic in that it witnessed so fundamental a transformation in land ownership and occupation, changing a pattern that had dominated for the previous 100 years that it can only properly be referred to as a land revolution. This is not a qualitative characterisation but an historical phenomenon. Prior to the land revolution, the overwhelming bulk of prime agricultural land was in the hands of less than 6,000 white land-owners. Afterwards, all but a handful of these have been displaced, often violently and replaced by a new set of land-holders. Land is now in the hands of mostly ZANU PF elites and thousands of black peasants. The difference is clear.
The land revolution required the cooperation of all three arms of the state. The executive oversaw the actual occupations, the legislature passed relevant laws, including retrospective legislation, while the judiciary interpreted the laws to reaffirm legality and to give legitimacy to the process. As such, it was necessary to overhaul the judiciary, removing white judges and other judges deemed to be sympathetic to white landowners. The early judgments in 2000 by the High Court and the Supreme Court declaring that the land occupations were illegal set the scene for a big conflict between the executive and the judiciary, culminating in an extensive purge of judges perceived to be standing in the way of the land reform programme. A ZANU PF MP Zacharia Ziyambi is quoted as having declared, “When we are at this stage of pursuing our revolution, they [judges] need also to play the tune…They also need to bend down and do like what the revolution requires us to do.” According to Patrick Chinamasa, who was the Minister of Justice at the time, “If they [judges] behave like unguided missiles, I wish to emphatically state that we will push them out.” He warned Chief Justice Gubbay and fellow judges that the government could no longer guarantee their safety, effectively pushing them out of office prematurely. A group of war veterans, led by Joseph Chinotimba invaded the Supreme Court building, singing and dancing on courtroom tables, threatening the judges with violence. It was an ominous sign which soon precipitated the departure of the existing judges. While the Constitution nominally protected judicial tenure, the politics of the day had effectively ejected judge from office, one of the first signs of the demise of the rule of law.
The appointment of Chidyausiku as Chief Justice in 2001 was part of that process of creating a robust framework covering all three arms of the state to defend the land revolution. Indeed, the Chidyausiku court has been unapologetically pro-government particularly in land related matters. Soon after Chidyausiku was appointed, the newly constituted Supreme Court took an unprecedented move to reverse an earlier decision of the old Supreme Court, declaring instead that the land occupations were lawful. Later, when some of the white farmers took their fight to the SADC Tribunal and won, still, the Zimbabwean judiciary gave the Tribunal’s decisions short shrift. When the farmers approached the Supreme Court after the Tribunal success, the Supreme Court dismissed the applications holding that it was independent and not obliged to take orders from the SADC Tribunal. This dispute over the SADC Tribunal’s decisions and jurisdiction eventually led the demise of the regional court.
Naturally, given this background, the next Chief Justice of Zimbabwe will be expected to carry on, and not divert from this path of dogmatically defending the land revolution. However, the government has no need to worry that the judiciary under any of the four candidates could ever review the land revolution. As part of the elite class that benefited from the prime portion of the land redistribution process, the judges are active participants in the land revolution and can be trusted to protect its gains. As beneficiaries, they are interested parties and they will protect the land revolution. None of them is likely to do anything that would radically transform the scenario after the land revolution. The only difference will be the degree to which candidates can be trusted by government. However, the candidate who is regarded as having the strongest ideological orientation that is in sync with the ruling party will get the most favour.
Having set the scene, I must now present analyses of each of the candidates. I will present them in alphabetical order.
Justice George Chiweshe
Justice Chiweshe is the current Judge President of the High Court, which makes him the head of the High Court in terms of the Constitution. His background is steeped in the military. Prior to his appointment as a judge of the High Court in 2001, Justice Chiweshe was the Judge Advocate-General in the Zimbabwe National Army. In that role, he presided over military courts, dispensing military justice, which is generally a closed system of justice. He retired from the military at the rank of Brigadier-General. He had first joined the ZNA in 1983, as a Major and rose through the ranks. Prior to that he had been a public prosecutor.
Cde Yasser Arafat
The appointment of Justice Chiweshe in 2001 represented an important development in Zimbabwe’s political history, with the lateral movement of high-ranking military officers into high level civilian institutions. This was a time of heightened political tensions when the Mugabe regime was intensifying the land revolution. The land revolution had seen major changes in the judiciary, which was regarded as a key institution in supporting the legality and legitimacy of the land reforms. The old judiciary headed by Chief Justice Anthony Gubbay had just been extensively purged. The military was showing more interest in open and active involvement in the affairs of the civilian government. Some military officers moved into government, others into parastatals and statutory authorities and others into the judiciary. This has been referred to by scholars as the militarization of civilian institutions. It was in this context that Justice Chiweshe moved from the military to the judiciary. His move may therefore be regarded as a sign of the militarization of the judiciary.
Apart from his formal military background after independence, it is also worth noting that Justice Chiweshe is a veteran of the liberation struggle. War veterans have been an important and influential faction in the politics of Zimbabwe. They were at the forefront of the land revolution. They participated in the purge of the Gubbay judiciary. They also openly backed Mugabe and ZANU PF in elections. Justice Chiweshe’s nom de guerre during the war was Cde Yasser Arafat. During the war, he was a deputy to the current head of the Zimbabwe Defence Forces, General Constantino Chiwenga. As a war veteran, it is fair to say his ideological orientation is in sync with that of the ruling party and establishment. Between the military and the judiciary, it may be argued that he is the quintessential military man. The government was keen to protect the gains of the land revolution and it needed reliable and trusted judges on the bench. In this regard Justice Chiweshe, a military man, could be seen as a safe pair of hands. This has been confirmed by key roles that he has played since his move to civilian life.
The "meticulous verifier"
In 2004, he was appointed Chairman of the Delimitation Commission of Zimbabwe, with responsibilities for drawing up electoral constituencies. The opposition complained that constituencies were redrawn to favour ZANU PF, increasing rural constituencies where ZANU PF is stronger and reducing urban constituencies, traditionally opposition strongholds. But his greatest mark was made in the 2008 presidential elections as Chairman of the Zimbabwe Electoral Commission. He had been appointed in 2005. In 2008, he oversaw a violent and highly discredited election but still ZEC concluded that the election was free and fair. All other observers, including the usually reliable SADC and the AU discredited the election. The most conspicuous aspect of that election is that under Chiweshe, ZEC failed to produce the results of the presidential election for a record period of six weeks. ZEC said it was conducting “meticulous verification” of the results but most observers suspect the regime was fiddling with and fixing the results to give the defeated Mugabe another chance through a presidential run-off election. It was a complete charade. That it was overseen by a judge of the High Court makes it even more embarrassing. Despite the unprecedented election violence which saw at least 200 people dead and thousand others injured, displaced and homeless, Justice Chiweshe’s ZEC still declared that the presidential run-off was a free and fair election.
In 2010, he was promoted to the position of Judge President. Some believe it was a reward for his role in the 2008 elections. This the role that he has held for the past six years.
NERA Demo and Bond notes challenges
There is no remarkable jurisprudence associated with his judicial career. However, in recent weeks, he has made use of his role as Judge President to personally take charge of key cases involving legal challenges against government. In one case, Justice Chiweshe dismissed citizens’ legal challenge against a police decree banning demonstrations in central Harare. He held that the police decree was constitutional despite the glaring fact that the Constitution clearly prohibits anyone but Parliament from exercising primary law making powers. In another case, he dismissed a legal challenge against the introduction of bond notes, government’ s new surrogate currency, on the grounds that it was not urgent. The fact that government had used the Presidential Powers Act, an unconstitutional piece of legislation was overlooked in favour of supporting the bond notes. These were two critical cases with a significant effect on important government policy and in both cases, Justice Chiweshe ruled in favour of the government. If anything, these two cases demonstrate that a judiciary under Chiweshe would more likely than not rule in favour of the government regardless of the illegality of its conduct. It would be utterly pointless to bring any challenges against government. And that probably makes him the best candidate for the ZANU PF government.
Although the general narrative is that the judiciary under Chidyausiku has largely been pro-government, there was also nuances of struggles within the judiciary. It has been said that there is no love lost between the Chief Justice and the Judge President. In early 2015, Chidyausiku delivered a scathing attack on the poor performance of High Court judges and this was seen as an attack on the Judge President, who is the head of the High Court. When the judges shot back at the Chief Justice, their memo of protest was sent through the Judge President. A year later, at the opening of the Legal Year at the High Court in Bulawayo, the Judge President Chiweshe appeared to be responding to his boss when he criticized a directive that requires judgments to be posted on a website. Judge President Chiweshe argued that the quality of judgments was being diluted by the requirement which had resulted in rushed judgments as judges sought to meet targets. In his speech Judge President said,
“The current directive is that all judgments must be treated as reportable and posted on the website. The result has been that judgments of little or no significance are given a status they don’t deserve. They are treated as Zimbabwe’s best”
He argued that the directive was unfair because it meant judges did not get credit for disposing of matters in other ways that did not necessarily result in a judgment posted on the website. For example, if a judge disposed of a case at a pre-trial conference, he would not have the opportunity to write a judgment and therefore nothing will be posted on the website and he won’t get credit. Although the media missed the nuances, this was serious criticism of the Chidyausiku. As the Chief Justice is the person responsible for directives for the judiciary, it is arguable that Chiweshe’s scathing criticism was directed at Chidyausiku’s office. After all, it was Chidyausiku who had praised judges who produced the highest number of judgments. While Chidyausiku had praised judges who produced more judgments, Chiweshe was clearly arguing that writing judgments is not the only way to measure judicial performance.
Chidyausiku and Chiweshe might have had differences, but they have been united in their service of the same system. It’s fair to say Chidyausiku’s tenure has been unashamedly pro-government. It is unlikely that Chiweshe would take a different approach. Throughout his career as a judge of the High Court and as Judge President, Chiweshe has been a safe pair of hands for government. His military background could also work to his advantage, particularly given the ascendancy of the political faction that has links to the military. If the Mnangagwa faction wins the succession battle in ZANU PF and if Chiweshe becomes the Chief Justice, two of the three arms of the state are likely to be occupied by men with a military and security background, a key point suggesting that the militarization of the state may live long after Mugabe is gone.
Chiweshe has made no surprises since his appointment. His appointment as Chief Justice would represent continuity rather than change. The Constitutional Court will be as predictable as it is now: if you take a case against government, the court will either avoid it or rule in favour of government. His judgments in the Nera demo and bond notes cases are indicative of a very conservative and pro-government orientation which makes him a trusted pair of hands for the regime.
Justice Paddington Garwe
Justice Garwe is one of the most senior and experienced members of the judiciary, but after an early rise, his career seems to have gone rather flat in recent years. He was one of the first few black judges on the bench, the class that came after Dumbutshena, Sandura and Chidyausiku. Back then, the judiciary was an eclectic mix of races, with white, black and Asian judges, although the black judges started very much in the minority. Garwe rose through the ranks of the judicial system, starting as an assistant magistrate in the colonial era, then regional magistrate until he became the chief magistrate, the top position in the lowest division of the judicial system. Garwe was also promoted to the position of Permanent Secretary in the Ministry of Justice after which he was appointed as a judge of the High Court in 1993. Apart from the outgoing Chief Justice Chidyausiku, no other judge on the current bench has more judicial experience than Garwe. He has spent nearly all his career as a member of the judiciary, right from the lower echelons. If experience were the only measure, Garwe would be the top contender.
However, it is hard to say there is anything remarkably outstanding or distinctive about his jurisprudence, despite his long service on the bench. However, he has handled some important cases in his career. When he was a magistrate, back in the 1980s he presided over the trial of PF ZAPU MP, the outspoken Sydney Malunga who was accused of trying to overthrow the government and supporting dissidents. Malunga was acquitted. In his judgment, Garwe criticised and blamed the police for carrying out a "poor investigation".
Tsvangirai treason trial
In 2003, Garwe presided over the infamous trial of Morgan Tsvangirai, the leader of the MDC, who was accused of treason. The central character in the case was Ari Ben Menashe, a Canadian who appeared to have been contracted by the Zimbabwean government to scandalise Mugabe’s biggest rival ahead of the 2002 presidential election. By the time the elections arrived, Tsvangirai had a sword hanging above him in the form of the treason charges concocted by Ben Menashe. So weak and tenuous was the evidence that the matter should have been dismissed and all accused discharged at the close of the state case. However, Justice Garwe only discharged Tsvangirai’s co-accused, Professor Welshman Ncube and Renson Gasela, leaving Tsvangirai to face trial alone. In the end, Garwe had no choice but to acquit Tsvangirai.
Tsvangirai’s acquittal disappointed the government and in that context, Garwe’s decision might be regarded as a brave one. Chinamasa, who was the Justice Minister was severely critical of Garwe, saying in a written statement, "There was enough evidence contained in the video and the transcript of the video to secure and justify a conviction in the case." He expressed a “strong view of the government” that “the judge in the case, Justice Paddington Garwe, clearly underplayed the overwhelming incriminating evidence placed before him by the prosecution”. He added that "a guilty man [Tsvangirai] has been allowed to walk out of the court scot-free." This suggests Garwe would have been under political pressure to convict Mugabe’s biggest rival.
However, the narrative of a heroic and brave decision might also be seen as rather exaggerated. The fact is that it was a weak case from the start and its purpose was to harass and disturb Tsvangirai who was Mugabe’s chief rival at the time. The whole legal process went on for more than a year, draining Tsvangirai’s energy and resources. By the time Garwe delivered his verdict in October 2004, the Mugabe regime had achieved its purpose of tiring Tsvangirai and the MDC and distracting them from their campaign against Mugabe and ZANU PF. It was hard for Tsvangirai to take the fight to Mugabe with the sword of a treason charge and potential death penalty hanging above him during the trial. In fact, Mugabe has always used treason charges as a tool for harassing and distracting political opponents. PF ZAPU’s Dumiso Dabengwa and Lookout Masuku were some of the high profile victims in the 1980s as was a founding father of ZANU, Reverend Ndabaningi Sithole in the 1990s. Tsvangirai was just the latest target.
It is therefore easy to give Garwe credit for acquitting Tsvangirai, but really, the truth is that case was so weak that no reasonable judge could have convicted him and retained any integrity. In fact, it should never have been a full trial. It should have collapsed at the close of the state case, when it was clear that there was no credible evidence. The real scandal was that Tsvangirai had to go through the rigmarole of a full trial.
Furthermore, typical of the Mugabe regime, it used Garwe’s acquittal of Tsvangirai to argue that it was proof that the judiciary was "independent and second to none," according to Chinamasa. In other words, through spin, they sought to salvage victory from their loss, suggesting there was a method to the madness of the legal charade. Garwe received praise from Tsvangirai’s lawyers. According to a Wikileaks cable dated 15 October 2004, Tsvangirai's defence team told the US Embassy after the trial that Garwe had done “a good job in applying the law to the facts presented at trial.” The cable also recorded that, “Garwe has long been painted by many as under Government control, but some who know him stressed to us that his ZANU-PF sympathies were constrained by his priority on judicial integrity.” This probably explains what appears to be a litigious streak – it is not that he is litigious, but that where his reputation as a judge is impugned, he is prepared to defend himself not for his own sake, but for his profession. If that is the case, it could be argued in his favour that as a Chief Justice he would have the courage to defend the judiciary against interference and abuse.
Another important case in which Garwe ruled against the state was the legal challenge against the land occupations which intensified after the constitutional referendum in February 2000. With war veterans and others invading and occupying white-owned commercial farms, there was a flurry of legal applications to stop the activities. One such case came before Garwe at the High Court. He ruled in favour of the farmers, declaring that the land occupations were illegal and should be stopped. These were the early days when the judiciary was still in a state of flux, which some judges prepared to stick to the formal rules, while others were ready to interpret the law in a manner that legitimised the land occupations. Garwe chose to stick with the formal rules and ruled in favour of farmers. The Supreme Court, then headed by Chief Justice Gubbay upheld the ruling in December 2000.
Not long after this, the purge at the Supreme Court and High Court began. Despite his decision which had opposed the land reform programme, Garwe survived but probably lost some favour and trust of government. When promotions to the Supreme Court were made in 2001, more junior judges leapfrogged him although he was made Judge President. He had to wait until 2006 before he was promoted to the Supreme Court.
Meanwhile, he had also had a complete turnaround after he also joined the land occupation movement and grabbed his own farm and quickly settled into a former white landowner’s farmhouse. It was ironic that the judge who in March 2000 had declared that the land occupations were illegal was now himself a land occupier. Like most judges on the bench who are beneficiaries of the land reform programme, it is hard to imagine how they could have retained their independence and impartiality when handling land-related matters. But it also means, as a beneficiary, he can be trusted to safeguard the land revolution.
VIP Housing scandal
Garwe has previously been implicated in a high-level corruption scandal, namely the VIP Housing Scandal, which involved the abuse of funds meant for civil servants. Civil servants had made contributions to a scheme that would assist them to build homes. However, the funds were packaged as loans and diverted to senior public officials, including government ministers. According to reports, a 1998 memorandum sent to the Permanent Secretary of the Ministry of Local Government and National Housing named Justice Garwe as one of the beneficiaries who at the time owed $109 115 for a property in the Gunhill suburb of Harare. Other high profile beneficiaries were Grace Mugabe, the President’s wife, and the late Stan Mudenge, who was the foreign affairs minister. The judge probably paid his bill, but it was not nice for his name to be tagged in that scandalous affair.
The litigious judge or defender of judicial integrity?
For a person occupying the office of a judge, Garwe comes across as someone who is quite litigious. On at least two occasions, Garwe has used both criminal and civil defamation laws to defend his reputation. First, in 1995, Garwe protested vehemently when he was named by the Financial Gazette, a weekly paper, that he had presided over an alleged secret wedding between President Mugabe and Grace Mugabe. The story turned out to be factually incorrect. Garwe could not have officiated at the wedding as he was already a judge. The paper had been fed inaccurate information and Garwe was not happy. Garwe and Enos Chikowore, who was a Cabinet Minister who had also been named as a witness at the alleged secret wedding instigated criminal defamation charges against the newspaper’s owner and the journalists who wrote the story. Although the story was false, it brought the affair between Mugabe and Grace into the open – they already had two children – and forced Mugabe to announce that he would sort out his marriage affairs in his own time. This demonstrates a man who is fiercely concerned with protecting his reputation and has no hesitation using the legal processes to protect it.
The second case is a civil defamation suit which he brought against the Zimbabwe Independent newspaper in 2004, following the publication of a story in which he was alleged to have been blocked by two assessors from passing judgment in the treason trial against Tsvangirai. Garwe argued that the story was false and had damaged his standing. He sued the paper for ZWD75 billion (Zimbabwe’s old currency). In 2007, he won the case and the Zimbabwe Independent was ordered to pay ZWD70 million in damages. Justice Garwe had been vindicated.
In the early years, Garwe was clearly a rising star and he would have been seen as a future Chief Justice. He started young and rose quickly through the ranks. He was just 26 when he became a regional magistrate and was the country’s top magistrate at only 31. He became a High Court judge when he was just 35. The future must have been bright. Having qualified in 1979, his career in the judiciary started in the colonial era, as a young assistant magistrate, arguably one of the few black judicial officers at the time. His vast experience and early success notwithstanding, it is intriguing that he is now regarded as the dark horse in this race.
Justice Rita Makarau
The ZEC Chair
Justice Rita Makarau is the current Chairperson of the Zimbabwe Electoral Commission, having assumed the role in 2013, following the departure of Justice Simpson Mtambanengwe. Although she was appointed following agreement between ZANU PF and the opposition during the time of the Inclusive Government, the opposition and civil have been highly critical of her leadership. ZEC has remained a point of serious tensions between the ruling party and the opposition, the latter contending that ZEC is compromised and biased in favour of the former. To be fair, she was appointed just a few months before the highly controversial 2013 elections and the new Constitution was also adopted shortly before the elections. She had hardly settled into her new seat when the elections came. She arrived in an environment which already had long-serving and overbearing figures, such as her deputy Joyce Kazembe and the Registrar General, Tobaiwa Mudede who between them had nearly 50 years’ experience of managing elections.
Due to the limited time before the elections were due, the law allowed Mudede to retain control of the voters’ roll and the voter registration process. This meant Makarau had to share space with the powerful Mudede. While her failure to make a mark before the 2013 elections might be understandable, she has had more than enough time to steer ZEC in a new direction. So far, there are doubts as ZEC remains mired in problems and controversies. While the introduction of biometric voter registration might be a positive development in the interests of transparency and credibility, there are still concerns over the politicized secretariat that runs day to day affairs at ZEC. Although she admits that there are ex-military personnel working for ZEC, she has pleaded a lack of power to do anything about it. ZEC needed a strong figure prepared to take radical decisions and displease many people in authority. However, Justice Makarau is more cautious and does not seem to have the courage to make bold decisions that might make authorities uncomfortable.
When citizens and the opposition have challenged ZEC, the response has been to resist even where it is unreasonable to do so. In one case, Dumiso Dabengwa and ZAPU demanded that ZEC starts registering people in fulfilment of its constitutional mandate. Makarau and ZEC resisted, arguing that there was no legislation to permit them to do so. This did not make sense, given that the constitution, the supreme law of the land, already gave ZEC clear powers to register voters. The High Court soon confirmed this. In any event, while she was opposing Dabengwa’s application, President Mugabe announced by-elections, which meant ZEC had to start registering voters. This forced Justice Makarau and ZEC into an embarrassing about-turn, admitting that ZEC could start registering voters after all.
More recently, she has argued that the electoral laws do not give ZEC enough “teeth” to deal with offenders. However, ZEC has the power to influence electoral reforms because the constitution requires government to consult ZEC before any amendments to the Electoral Laws are made. Since 2013, there have been amendments to the Electoral Laws, but Justice Makarau complains that the laws are inadequate. If they are inadequate, it is because ZEC is not using its vantage position to influence the law. If the government is not listening to her, then she has not said so. When she was appointed as ZEC Chair, the opposition was aware of her history, but given the alternatives that ZANU PF was proposing, it was thought her professionalism would make a difference. 3 years afterwards, ZEC still does not inspire confidence.
Conflicts of interest
Another concern is that for someone who aspires to head the judiciary, she does not seem to appreciate the importance of conflicts of interest in relation to senior public officers. Before she became the ZEC Chair, she was the Secretary to the Judicial Services Commission, an important executive position in the body that has the mandate to manage affairs of the judiciary. When she became the ZEC Chairperson, she did not relinquish her role at the JSC. Thus, the same person who is responsible for managing elections, and if often called to defend her organization in courts of law, is also serving the body which manages affairs of judges who are called upon to judge her cases. It is plain that this is a situation that exposes her to conflicts of interest and would have been avoided by her relinquishing her role at the JSC and focusing on ZEC. However, when she was questioned about the potential conflicts of interest, she dismissed the concern and stated that she did not see any conflict.
Makarau has risen quite quickly through the ranks. She was appointed to the High Court in 2001 alongside Justice Chiweshe, and Justice Ben Hlatshwayo. All three had a close connection with ZANU PF: Chiweshe and Hungwe are war veterans, Hlatshwayo had recently served on the Constitutional Commission, headed by the then Judge President Chidyausiku. Makarau had been a non-constituency MP, one of the 12 directly appointed to Parliament by Mugabe during that period. This was a new crop of judges brought in to replace departing judges after the purge that started in 2000 and intensified in 2001. The government was accused of packing the bench with sympathetic judges.
In 2006, just five years after her appointment, Makarau became the head of the High Court when she replaced Justice Paddington Garwe as Judge President. She made history as she became the first woman to hold that position in the judiciary. She held the role for four years when she was promoted to the Supreme Court in 2010. Her replacement was Justice Chiweshe. Incidentally, all three, Chiweshe, Makarau and Garwe are in contention for the vacant post of Chief Justice. As Judge President, in 2007 Makarau bravely took on the executive, demanding better working conditions for judges. In a speech at the opening of the legal year in Harare, Makarau was critical of the executive’s neglect of the judiciary and demanded redress. This was a courageously public stand on behalf of judges. The response, however, was that the then Reserve Bank of Zimbabwe Governor, Dr Gono stepped in and donated gifts to the judiciary, including flat-screen televisions, which raised concerns over compromising judicial independence.
When she was appointed to the High Court she was allocated election petitions which had been filed by MDC candidates. She bravely nullified at least two election results in Gokwe constituencies but upheld elections in Mwenezi, evidence of egregious violence notwithstanding. In any event, the decisions were virtually useless as by the time they came, the term of Parliament was finished.
Before her appointment as a non-constituency MP by Mugabe, she was running a legal practice, Makarau and Gowora. Justice Gowora, is also a judge of the Constitutional Court. Makarau also lectured part-time at the University of Zimbabwe.
The gender factor
The fact that Makarau is the only female candidate is not insignificant. She is the first serious female contender in the country’s judicial history. Justice Vernanda Ziyambi is a more experienced female judge, having been on the bench since the 1990s, but she has stayed out of this race. Justice Elizabeth Gwaunza is also more experienced, having been appointed to the High Court in 1998 and to the Supreme Court in 2002. If Makarau gets the top job, she will make history as the country’s first female Chief Justice. Unsurprisingly, her bid has backing from the gender equality lobby. However, if she got the job, it should not be because she is a woman, but because she is the best candidate among the four vying for the post. It would be unfair on her to characterize her success solely on the basis that she is a woman.
It is worth checking how she has fared in advancing the cause of women during her time on the bench and as a non-constituency MP. One case epitomizes the anguish that she has faced as a judge, trying on the one hand to attend to the cause of disadvantaged women and on the other hand her duty to uphold the law. In the case of Muswere v Makanza HH-16-2005, Makarau presided over a difficult case in which she had to decide on the rights of a married woman in relation to matrimonial property registered in the name of the husband. The husband, Dr Makanza had sold the family home to Godfrey Muswere. When they bought the property, it was registered in the sole name of the husband only. However, the husband had sold the property without consulting the wife. When the purchaser, Muswere, tried to take occupation, the seller’s wife, Mrs Makanza refused to vacate. That is when Muswere sued Mrs Makanza. Mrs Makanza argued that she was a co-owner of the house by virtue of marriage and that as a wife she had made direct and indirect contributions to its purchase and maintenance. The wife clearly had a good moral argument. But it was at odds with the law of property which confers full ownership rights to the person in whose name it is registered. Could the law uphold the woman’s argument in the face of the clear rules of property ownership? This was the problem that Makarau faced. Her anguish is palpable in her judgment.
Makarau noted that the law was unsatisfactory and unjust. She noted also that the problem that Mrs Makanza faced was not uncommon, as in many cases in our society, matrimonial property is often registered in the name of one spouse, usually the husband. The odd thing is that upon divorce, the law recognises the need to share property equitably, regardless of whose name it is registered. The law of inheritance also recognises the joint matrimonial estate. Yet, while family and inheritance law recognises joint matrimonial estate, the law of property during the subsistence of marriage does not do that. In one, sense, it was a great opportunity for Justice Makarau to make a radical decision which would revolutionise the law. She realised the problem but pleaded that her hands were tied by the law. This was not the first such case. Justice McNally had dealt with a similar case years before. In Muzanenhamo and Anor v Katanga and Ors 1991 (1) ZLR 182 (SC) the court held that there was no reason to intervene on behalf of the wife as the house that had been sold was registered in the husband’s name.
In her judgment, Justice Makarau pointed out that times had changed and “courts are enjoined by statute to consider the gender role of spouses when distributing matrimonial estates. The courts have awoken to the realization that wives who stay at home work even if there is no income directly accruing to the family from their endeavours as they move from stove to washing line and back.” These positive comments notwithstanding, she held that she could not do anything because of the law. She wrote “… it clearly presents itself to me as the position at law that a wife in the position of Mrs Makanza has no real right in immovable property that is registered in her husband’s sole name, even if she contributed directly and indirectly towards the acquisition of that property. Her rights in relation to that property are limited to what she can compel her husband to do under family law to provide her with alternative accommodation. Her rights, classified at law as personal against her husband only, are clearly subservient to the real rights of the husband as owner of the property”.
She described these rules as “anachronistic” and having “outlived their raison d’être” and of lacking “sound jurisprudential basis …” Her legal reasoning cannot be faulted, but one must ask whether she might have been more radical in developing the common law. The new constitution has room for courts to develop the law, including common law, in line with the Declaration of Rights. It would be interesting to see whether Makarau would take a radical stance in defence of the rights of women in such cases if she had to decide the matter under the new constitutional dispensation.
Overall, the approach to the case encapsulates Makarau’s approach generally: between the official position, however wrong and unjustifiable and a bold and radical option, she is more cautious and will often go with the former rather than the latter.
In contrast, Makarau’s rival in the race for Chief Justice, Justice Garwe was prepared to use principles of general law to protect the rights of a woman married under customary law who would otherwise have walked out of the union with very little. Traditionally, customary law has been held not to confer property rights to women, except what is referred to as amai/mawoko property. This has placed women married under customary law in serious jeopardy at the break-up of the union. This was the issue that Justice Garwe had to deal with in the case of In Mtuda v Ndudzo 2000 (1) ZLR 710 (H) where upon dissolution of the unregistered customary union, the wife sought a fair distribution of the matrimonial property. Justice Garwe departed from customary law and applied principles of unjust enrichment to ensure that the woman got her fair share of matrimonial assets. If he had been rigid and applied customary law, the wife would have left the union with very little.
To her credit however, Justice Makarau has been closely associated with women’s and children’s causes, working with various organisations. One episode encapsulates her passion and commitment to defend fellow women in jeopardy. In 1998, I represented a man who had bought a house, but when he tried to take occupation, he faced resistance from the occupants – an elderly woman and her children. It turned out that the man who had sold the property to my client was the woman’s eldest son who had inherited the property from his late father. He had sold the property without their knowledge. My client, a bank employee, was unaware of this scenario when he bought the property. It was a very frustrating case because although the law of property was clearly in our favour, both my client and I saw that the woman and her children had been hard done by the woman’s son. Yet it was tricky because my client was already paying the bill for the mortgage he had taken to purchase the property. Quite understandably, the woman resisted eviction as that was her only home. The matter made it into the papers. Upon reading the woman’s predicament, Makarau, then a practising lawyer, reached out to me on behalf of the beleaguered mother and children and offered to assist her. She took up the matter for no fee, to help a fellow woman in need. It was an admirable gesture which caused her reputation to appreciate in my estimation.
Would Makarau represent continuity or change? She would bring with her the overly cautious approach that has characterized her tenure at ZEC. She is not the type to rock the boat. As between public authority and individuals, like Chiweshe, she is likely to go with authority. If the inability to transform ZEC into a truly independent, reliable and trusted electoral institution that inspires confidence is indicative, then there is little chance that she would radically transform the much-maligned judiciary.
To her credit, that she has a conscience is evident. She is fully conscious of the problems and shortcomings of the regime that she serves. One day, I suspect she might want to leave a better and more lasting legacy. Maybe she realizes that the ZEC space is too politicized and lo longer wants to be involved. The judiciary is a safer space and maybe there she feels she will do better. She still has another term at ZEC, so her desire to run for the job suggests she is fed up with the politics at ZEC. My knowledge of her is someone who means well and wants to do well but she is too cautious for anyone’s good.
Deputy Chief Justice Luke Malaba
As the second in command in the judiciary, if rank alone were the criteria, then the Deputy Chief Justice should be the natural successor to Chief Justice Chidyausiku. However, the history of appointments to the top post is that appointments do not follow seniority. When Enoch Dumbutshena was appointed as the first black Chief Justice in 1984, he was fast-tracked to meet the requirements of the new order of black majority rule. He leap-frogged more senior judges and this was understandable given the desire for transformation in state institutions. When Chidyausiku was appointed to the past in 2001, he also leap-frogged more senior judges who were already serving at the Supreme Court. One of Zimbabwe’s greatest judges, Wilson Sandura who would have made a great Chief Justice was overlooked. Therefore, the fact that Malaba is the next in command is no guarantee that he will get the job.
Like Justice Garwe, Justice Malaba has spent most of his legal career serving the judiciary. He got his law degree from the University of Warwick (my alma mater) in 1974 but he got registered in Zimbabwe in 1986. He spent 3 years as a prosecutor in Bulawayo, before beginning his career as a magistrate in 1984. He became a regional magistrate in 1990 before he was appointed as a judge in 1994. He was elevated to the Supreme Court in 2001 and became the Deputy Chief Justice in 2008. At 65, he is the oldest candidate and signing off as the Chief Justice would be a glorious conclusion of a long career in the judiciary.
Ethnic and regional factor
If Makarau would make history as the first female Chief Justice in the country and has the gender balance card on her side, then Malaba would also be a history-maker as he would be the first black Chief Justice from the Matabeleland region and therefore, has the regional balance card on his side. The new Constitution enjoins appointing authorities to take into consideration factors such as gender and regional balance in their appointing processes. This is not to say they should be the determinants, but that they ought to be specially considered. Just as women have protested over historical disadvantage, so also people from regions such as Matebeleland have legitimate concerns over marginalisation, particularly in respect of senior public appointments. Even in political parties, people from Mateleland always seem to end up deputising leaders from other regions. This is not fair. Overlooking Malaba, who is aalready the Deputy Chief Justice and has produced quite some sound jurisprudence in his time would only add to these concerns. However, just like Makarau, it would be disrespectful if the only factor raised in his favour were the regional factor because there is more to him that counts in in his favour, including his experience and sound jurisprudence. Malaba is as good a candidate as any and has the experience and the fact that he is the second in command should weigh in his favour. Best of all, he would only serve for 5 years as he’s already 65 years old and he would be retiring at the age of 70.
The reasonable dissenter
Of the current candidates, Malaba appears to have a decent track record of producing sound judgments, although that might also be his Achilles Heel as he has exhibited a streak of independence which might not be the favour of the appointing authorities. Perhaps his most notable judgment in recent years was one in which he was one of two dissenting judges. It was the case in 2013 in which Jealousy Mawarire sued President Mugabe compelling him to set the date for the election. The majority ruled in favour of Mawarire’s application, which ensured that elections were held by July 31 2013. Malaba and Patel dissented and of the three written judgments, Malaba’s was the most sound. It was brave and courageous of him and Patel to dissent, but it may have upset the appointing authorities. Can they trust him to toe the line as head of the judiciary when he is capable of making such bold decisions against government in important cases? This is the question that stands between this sound jurist and the top position.
Nevertheless, despite the boldness demonstrated in the Mawarire case, in other cases Malaba has taken a safe approach. One of his more important judgments involved the dispute over the land reform exercise. After some white farmers had taken their case to the SADC Tribunal and won, they sought to enforce the orders in Zimbabwe. The SADC Tribunal had effectively overturned the decisions of the Supreme Court of Zimbabwe, ruling that the land reform process was unlawful and a violation of the rule of law. Writing for the Supreme Court in the case, Malaba dismissed the farmers’ application, holding that the SADC Tribunal had no jurisdiction over the matter and that the Supreme Court was not obliged to comply with or enforce the orders of the Tribunal. It was a vehement defence of the Supreme Court but also in the political context, of national sovereignty, which was well in sync with the government’s message. When you look at Malaba from that end, the government can rest easy knowing that he is also a safe pair of hands who can be relied upon to defend the and revolution.
Another notable judgment since the new Constitution came into force is the child marriages case which was delivered earlier this year. In that case, two former child brides were challenging the legality of provisions of the marriage laws which they argued permitted child marriage contrary to the protections of the new Constitution. That the legislative provisions were unconstitutional was never in doubt, even though the state tried to put up a defence. However, Malaba’s judgment was sound and well-written, a clear indication that he had applied himself to the matter and was promoting a liberal jurisprudence which sought to uphold fundamental rights and freedoms. It was a good judgments which made reference to international human rights law, something that is important as Zimbabwe gives substance to the provisions of the new law.
However, Malaba also wrote the judgment in the case where citizens were challenging ZBC’s powers to levy the licence fee. He ruled that ZBC’s powers were not unlawful. It was not a judgment that pleased the public but it's hard to fault the reasoning.
The Diaspora vote
Malaba had the task to decide whether or not the Diaspora could vote in national elections. He held that the law as it then was did not permit the Diaspora vote. Madzingo and other persons residing in the UK had challenged the constitutionality of the Electoral Act which did not make provision for the Diaspora vote. Malaba reasoned that while Parliament had made an exception for postal votes for selected persons who were not in the country, it had not extended the right to the right to the rest of the citizens in the Diaspora. “Parliament did not find it necessary in the exercise of its powers to treat the applicants as a special class of persons for the purposes of the exercise of the right to vote,” he wrote.
The applicants had argued that denial of their right to vote as citizens was a violation of the freedom of expression. However, Malaba reasoned that freedom of expression did not include the right to vote. He held that the applicants’ claim that the right to vote was part of freedom of expression was an attempt “to elevate the right to vote to a constitutionally guaranteed and entrenched right” In his view, the right to vote was not a fundamental human right in the Constitution. This was surprising reasoning, given that universal adult suffrage was one of the chief gains of independence. Malaba had an opportunity to read freedom of expression more broadly in order to protect what is clearly a birth right. He chose instead to take a narrow reading and by so doing dismissed the right to vote as a non-fundamental right.
To his credit, he admitted that it was an anomaly, given the fundamental significance of the right to vote in a democracy. After the Madzingo judgment, the Constitution was amended through Constitutional Amendment No. 18 to state specifically the right to vote in the Declaration of Rights. This same provision is captured in section 67 of the new Constitution, with extensive provisions elsewhere reinforcing the right to register and the right to vote in elections. It is positive that the new Constitution now recognises the right to vote as a fundamental right and it would be interesting to see whether Malaba would take a different approach if he were called upon to determine a case like the Madzingo case under the new constitutional dispensation.
The bold judge
One interesting case in which Malaba demonstrated his readiness to make bold decisions in difficult cases is the Marimo case in which he declared that the conduct of his boss, Chief Justice Chidyausiku was invalid and unlawful. In Marimo and Another v Minister of Justice, Legal and Parliamentary Affairs and Others  ZWSC 60 the important question was whether Chief Justice Chidyausiku’s power to appoint judges of the Electoral Court under the Electoral Act was constitutional. Section 162 of the Electoral Act empowered the Chief Justice to appoint judges of the Electoral Court. Following that provision after the 2005 elections, Chidyausiku had handpicked judges but this was challenged by the losing MDC candidates on the grounds that the Electoral Court was a special court and judges had to be appointed in accordance with the provisions for appointing judges. Section 162 of the Electoral Court was therefore unlawful as it authorised a different procedure. Realising that he had erred, Chidyausiku had sought to revoke his initial appointments and immediately re-appointed them.
However, Malaba ruled that this was improper and unconstitutional. Malaba ruled that section 162 of the Electoral Act was inconsistent with the Constitution and declared it invalid and held that Chidyausiku’s act of appointing judges on its terms was invalid. He ruled that the fact that the Electoral Court was improperly constituted meant that the rights of the losing MDC candidates to protection of the law had been violated. “It must follow, that as the judges were not validly appointed, they had no authority to exercise the judicial power of the Electoral Court at the time they purported to hear and determine the election petitions. In other words, the court in which they sat was not properly constituted and was not a court “established by law.” There was a violation of the right guaranteed to the applicants under s 18(9) of the Constitution.” This was the correct decision but its importance is that Malaba did not hide and although the invalidation was in respect of the Electoral Act, it is notable that Malaba was prepared to invalidate the actions of his boss, who by appointing the judges twice must have thought that he was doing the right thing.
At the beginning of this article, I explained the politics associated with process of choosing a Chief Justice. Purists don’t want to hear that the choice is heavily influenced by the politics of the day, but this is an unavoidable reality. If the MDC were in power, the line-up of candidates would most likely be very different. One of the unsaid truths is that there is no love lost between the current bench and the MDC. During the constitution-making process the MDC advocated for a complete overhaul of the judiciary. The judges knew about it as they had a representative sitting in the COPAC deliberations. They defended their position and were supported by ZANU PF. Just as the nationalists demanded a change in Chief Justice at the end of the colonial era, if the opposition had won in 2013, that might well have expedited the retirement of Chidyausiku. The judge who will do more to serve ZANU PF interests, or at least the interests of the most powerful faction will win the race.
One of the casualties of this politicisation of the judiciary and packing the bench is that quality has been severely compromised. Far more important than political interests, the Chief Justice should be someone who is capable of leading jurisprudential development in the country. This is an area that has suffered in the past 15 years. Judgments take long to be delivered and when they do, the quality is weaker than in the past. There is hardly any diversity as most are single judgments with all other concurring. Even where judges concur with the main opinion, they must explain their own reasoning process. It is good for the country’s jurisprudence. The new Chief Justice must be someone who can transform the judiciary into a robust forum for jurisprudential debate and development. The new Constitution offers great opportunities for this and a new forward-looking Chief Justice can lead an important revolution in the protection of rights and development of the common law, customary law and other areas of law.
Finally, the age of the candidates may have a bearing on the outcome. Malaba is 65 and should he get the job he will be retiring in 5 years’ time when he gets to 70. At 63, Chiweshe is not far behind Malaba, while Garwe flows closely at 62. Makarau is the youngest of the candidates, at 56. What this boils down to is that we would have only 5 years of Malaba, 7 of Chiweshe and 8 of Garwe, but 14 of Makarau. The development of our jurisprudence requires regular change at the top court, which is why the term of office at the Constitutional Court is just 15 years. Malaba will guarantee us a quick change in 5 years’ time, which is good for change. However, given their ages, it also means this could be the last chance for Malaba, Chiweshe and Garwe. Makarau still has age to her advantage. If she gets it, we will have her for 14 years, but if she doesn’t, she will probably be the leading candidate the next time the vacancy arises. If Malaba gets it, one of the remaining three could still be rewarded with the role of Deputy Chief Justice, which will be vacant after Malaba’s elevation. It will be little consolation, but it will be better than nothing.
So who will get the top job? It is a hard question. My calculated guess is that given the political nature of the job, the judge who has the favour of the most powerful faction in ZANU PF will get it. Merit is unlikely to play a significant role. The candidate who presents the credentials to safeguard ZANU PF’s interests will probably get it. It won’t be because they are the best judge, but because they will do the best job to protect ZANU PF’s interests. Malaba is probably the most sound from a jurisprudential perspective but he might be regarded as unpredictable especially after the 2013 elections case. Makarau is cautious and has the gender factor on her side but it might be said she still has room for another shot at the job. Garwe’s star shone brightly before but it appears to have dimmed in recent years, though he remains a dark horse. Chiweshe has shown himself to be a safe and reliable pair of hands, and might have the favour of the most powerful political faction at present, which is probably why pundits have him as the favourite for the job.
At the end of the day, it's a choice between lemons. The only question is which lemon would make better lemonade.