Ten years ago, when I had a regular column for The Zimbabwe Standard newspaper, I wrote an article on the Madzimbamuto case, a landmark case that is familiar to most students of law. I wrote it in response to events surrounding the award of gifts to the Zimbabwean judiciary, following a desperate plea by Justice Makarau, at the time Judge President and head of the High Court. I commended Justice Makarau for her bold stance on behalf of impoverished judges but warned that they needed to be careful not to be captured in return for the gifts they were getting. I warned that they needed to guard their independence jealously.
To advance my point, I delved into legal history and cited the Madzimbamuto case and how two courageous judges had behaved admirably in the face of political pressure. Those two judges were Justice Fieldsend and Justice Dendy Young. Today, I read a post by David Coltart on social media announcing Justice Fieldsend’s death at the age of 95. I decided to dig up the article I wrote ten years ago. It is as relevant now as it was then. It is my tribute to a remarkable man of law whose act of courage must remain an inspiration to those who stand for and defend the rule of law. What follows below is the article as it was written in March 2007:
Judges under Pressure: Revisiting the Madzimbamuto vs Lardner Burke case
Today, I would like to relate a story - one that will be familiar to the judges, to colleagues in the legal field or anyone who is familiar with constitutional law, and perhaps many Zimbabweans who lived during the colonial period whose memories can still stretch that far back. It will also be very familiar to the generation of politicians currently in charge of the country's affairs, because they were adversely affected by its consequences.
Of the hundreds of legal cases that I read during my years in law school, the case of Madzimbamuto v Lardner Burke is an obvious stand out. It had everything that intensified both my interest and curiosity about the nature of the law and the conduct of those charged with its administration and interpretation. It was also a very long case, one that was notoriously hard to understand for the first year law student. However, by some twist of irony, its notoriety was also one of its more endearing qualities to keen legal minds.
The case arose in Rhodesia, as Zimbabwe was known then, in the context of the Unilateral Declaration Independence ("UDI") by the Smith government on 11 November 1965. Under UDI, the Smith regime declared that Rhodesia had become an independent sovereign state and proclaimed a new Constitution ("UDI Constitution") to replace the 1961 Constitution ("Old Constitution"). UDI was essentially a rebellion against Britain, which was the imperial power, with the Smith regime intending to reinforce white minority rule.
The case, which went through three courts and seven judgements in all, occupies several hundred pages of law reports, the reading and understanding of which is a truly daunting task. I do not intend to burden the reader with all the technical and legal complexities of this case, as that would be unfair, but I wish, in the simplest terms to which one can possibly reduce the case, to use it to make a point about judicial independence in the face of undue political pressure from the executive. In my desire to unscramble the long and complex case for the lay person, I inevitably run the risk of over-simplification, which may upset some of my legal colleagues. But I proceed in the hope that they will understand and forgive, appreciating the principal object of this contribution.
Daniel Madzimbamuto was a nationalist belonging to ZAPU, one of the two key political organisations in the 1960s that was fighting for independence and majority rule. Lardner Burke was the minister in charge of law and order in the Smith regime. He was notorious for the arrogant and heavy-handed manner in which he executed his mandate.
Along with other nationalists, who included ZAPU leader, Joshua Nkomo, Madzimbamuto was detained without trial under a state of emergency which was declared shortly before the Smith regime announced UDI. Under the Old Constitution, the state of emergency under which Madzimbamuto was being detained was due to expire automatically after a period of 3 months. As that deadline approached, the Smith government extended its duration in order to continue detaining Madzimbamuto and his colleagues.
That is when Madzimbamuto’s wife, Stella brought a legal challenge on his behalf. Her application was remarkably simple - she asked the Court to declare that her husband's detention was illegal and for his release. Mrs Madzimbamuto's arguments were that all actions and laws made under the UDI Constitution lacked legal validity since UDI was illegal. The British government had declared that the new Constitution and therefore the state of emergency under UDI were therefore vid and of no effect. The reality on the ground however, was that, for all intents and purposes, the Smith regime was in charge. It retained effective control of the country, including the civil service and the security structures. This placed judges in the middle.
The significance of the Madzimbamuto case lay in the fact that it was a clear test of the legal authority and legitimacy of the Smith regime, which on its side, argued that it had successfully created a new order and it was in effective control. The judges in the Rhodesian courts were therefore being asked to make a hard decision, one that brought into sharp focus the clash between allegiance to legal principle and the demands of political expediency. In a nutshell, the judges had to decide whether or not UDI was legal.
As stated, the matter went through three courts: the General and Appellate Divisions of the High Court of Rhodesia and the Privy Council in the UK. Overall, despite differing somewhat in their decision on the legality of the Smith government, the majority of judges in the Rhodesian courts came to the conclusion that its actions and laws were valid on grounds of necessity. They ruled that the Smith regime was the de facto government and should be recognised. It was decided that the security situation in the country required that the continuation of the state of emergency. It did not matter to the judges, that Madzimbamuto's rights were being violated or that the "insecurity" to which they referred was a result of people trying to assert their rights and freedom. In fact, two of the judges in the Appellate Division even accepted that the UDI Constitution and the Smith government had acquired legal status. Not surprisingly, the Smith regime hailed the decisions as victories because they gave it de facto recognition.
Interestingly, one judge in the Appellate Division, Justice Fieldsend dissented from the majority opinion. He was not willing to accept the legality of the UDI Constitution but even he was prepared to recognise the actions of the government, on the basis of necessity.
A remarkable event happened when Mrs Madzimbamuto decided to take the battle to the Privy Council in the UK - being the final forum of appeal during that time. The Solicitor-General of Rhodesia made a radical announcement, stating that the orders of the Privy Council would not be obeyed by the Rhodesian government. Zimbabweans today will be familiar with similar reckless statements that have been made by government ministers to threaten and push judges into submission.
The Solicitor-General's political announcement, clearly in defiance and contempt of the judicial authorities, was surprisingly accepted by the judges but most notably, Justice Fieldsend resigned in protest. Three black Africans who were on death row, who could have appealed to the Privy Council
were executed within a week of that announcement. This was clearly in defiance to what the Privy Council might have decided. What is significant here is that the judges in Rhodesia had effectively recognised the legal authority of the Smith government. The judges kept office and recognised the UDI Constitution, even though they had been appointed under the Old Constitution, which they had sworn to protect and obey.
The Privy Council decided in favour of Mrs Madzimbamuto, holding that the actions of the Smith government lacked legal validity. It stated that it was not for the judges to recognise the acts of an illegal regime. But the victory was only of academic significance because the Rhodesian judges refused to accept the decision of the Privy Council. This refusal prompted one of the judges of the High Court, Justice Dendy Young, to also resign in protest.
So in Justice Fieldsend and Justice Dendy Young, the Madzimbamuto story has two unlikely heroes, apart from Mrs Madzimbamuto, the unsung heroine of the legal saga. The two judges had remained faithful to their oath and refused to be cowed into submission by the illegal regime, and therefore asserted their independence by resigning and refusing to serve under the circumstances. Justice Fieldsend went back to the UK where he took a role in the civil service while Justice Dendy Young later became a chief justice in neighbouring Botswana.
Recognition at last
It is worth noting that when independence finally arrived in Zimbabwe in 1980, the new government duly recognised Justice Fieldsend’s act of courage by appointing him as the first Chief Justice of the independent country. I like to think that the nationalists had recognised the integrity with which he had carried himself back during the UDI era, when he elected to stick to principle rather than submit to political expediency. It is ironic therefore, that the same people who once recognised the value of judicial independence, appear to have adopted the same tactics of the Smith regime in the Madzimbamuto case - bullying judges and putting them in very difficult positions.
The UDI judges faced the risk of losing their jobs if they had refused to recognise the Smith government and it could therefore be said that in deciding as they did, they were protecting their own interests. But it would have been a price worth paying for adhering to their oaths and legality. Justices Dendy Young and Fieldsend set the right precedent, preferring to lose office than to capitulate to the political pressure. They occupied a privileged position in society but they gave it up as a matter of principle. The rest succumbed to pressure and sacrificed their principles in favour of expediency.
Ironically, as the first Chief Justice and head of the newly independent nation’s judiciary, Fieldsend had to deal with same state of emergency which the new government inherited from the colonial state. This meant he had literally stepped back into familiar territory that he had escaped a decade earlier. The only difference was that whereas in 1968 he was dealing with a white minority regime, and in 1980 he was dealing with a black majority government – but both were united by their common resort to repressive instruments of the State. He thus had the daunting task of having to curtail the excessive powers of the new government which had honoured him with an appointment. His job was not made easy by a constitutional clause which allowed for the continuity of pre-existing repressive legislation which could not be challenged for violating the Declaration of Rights for first five years of independence. Yet against these heavy odds, Chief Justice Fieldsend stood firm and laid a strong foundation for a human rights-conscious Supreme Court.
As Zimbabwe moves towards ever more uncertain times, the courts will be called upon to make very difficult decisions. And as the current Zimbabwean judges may be aware, they face similar and perhaps worse pressures but capitulating to such pressures would be a betrayal of their office and indeed the millions who look to the court as the final bastion for the protection of their rights.
It is remarkable that this article was written ten years ago and yet the issues raised then remain pertinent. There is also the coincidence that the first Chief Justice of Zimbabwe has died in the same week that the current Chief Justice leaves office upon reaching retirement age and there is serious controversy over the government proposal to amend the Constitution in order to remove checks and balances in the appointment of the Chief Justice, given an excessive amount of power to the President. There is an old cliché which captures it all: old habits die hard.
May there be a generation of lawyers that is inspired by the remarkable courage of men of law like Chief Justice Fieldsend.