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The Big Saturday Read: Chief Justice Chidyausiku - a judge of the revolution

February 25, 2017

 

End of an era

 

This week marks the end of Chief Justice Godfrey Guwa Chidyausiku’s long judicial career which began in 1987 when he was appointed as a judge of the High Court of Zimbabwe. He leaves behind a bench that is fundamentally different from the one he joined thirty years ago. Back then he was one of the first few black judges appointed to the High Court. When Zimbabwe gained independence in 1980, the executive and legislative arms of the state underwent significant changes in personnel. The judiciary was an exception to the general rule, which meant the bench that Chidyausiku joined in 1987 was still dominated by white judges, some from the colonial era. Now however, the bench is a very different. As he departs, he takes away with him what remained of that old order, for in the context of the current bench, he really was a relic of the old order.

 

His tenure as head of Zimbabwe’s judiciary has been eventful and controversial. For better or worse, he has left an important footprint. He presided over the judiciary at a time of tense and revolutionary political developments. The road he has travelled has been long and winding. With 16 years as the Chief Justice, he is Zimbabwe’s longest-serving head of the judiciary since independence. His predecessors, Chief Justices Gubbay and Dumbutshena served for no more than 17 years between them. Throughout this article, I shall refer to these different eras by the name of the head of the judiciary as the Dumbutshena court, Gubbay court and Chidyausiku court.

 

Probably the most overwhelming impression under his leadership is that the judiciary has been subject to capture by the executive arm of the state. This is a significant shift from the image of the judiciary in the pre-Chidyausiku era, when it was widely hailed for its independence from the executive and for its steadfast defence of the substantive rule of law. This is hardly surprising, as indeed, the major reason for the purge of the Gubbay court which preceded the Chidyausiku court was that the government believed it was a stumbling block. Government needed a friendlier Supreme Court at a time when it was carrying out the historic land reform process. Thus the Chidyausiku-era has been characterised by a judiciary that was strongly aligned to government and its policies. Unsurprisingly, opposition and civil society groups have always complained about the lack of judicial independence.

 

The main purpose of this article is to assess in some detail the judicial career of the outgoing Chief Justice through an analysis of some of the major cases that he handled. There is no better place to start than his most important legacy as a judge of the revolution - the land revolution

 

 

The revolutionary judge

 

There can be no doubt that the most significant legacy of the Chidyausiku era is encapsulated in his work on the Land Question. That, indeed, is the most defining legacy of his long judicial career. The decade commencing February 2000 will go down in history as a period of unprecedented and remarkable events that collectively produced what should rightly be called a land revolution on account of the sea-change that took place over land ownership and occupation in Zimbabwe. As Chief Justice and head of the judiciary, Chidyausiku was right at the centre of this revolution, and his pivotal role earned him numerous accolades and eternal praise from the ruling party and complete disdain from the farming community that was displaced from the land. Indeed, when the story is told in future, the history of the land revolution will be incomplete without an articulation of Chidyausiku’s game-changing role. To call him a judge of the revolution would therefore be an apt description. Two cases aptly demonstrate the central role played by Chidyausiku as the utility player in the prosecution of the highly controversial land revolution and it is only fitting that I give them some detailed consideration.

 

The Commercial Farmers Union (CFU) cases

 

In December 2000, the Supreme Court headed by Chief Justice Gubbay made an important ruling on the legality of land occupations that had been taking place since February of that year. Soon after the constitutional referendum, groups of peasants and war veterans had moved into commercial farms taking occupation of the land. Farmers challenged the occupations and sought eviction orders, which they got from the courts. The CFU, which represents the white commercial farmers took legal action to represent its members’ interests. The Gubbay Court effectively ruled that the land occupations were illegal and unconstitutional. It granted an interdict to the CFU requiring the State to comply with court orders that had previously been granted by the courts. In March 2000, Justice Garwe had granted an order evicting land occupiers. Later, when the Commissioner of Police was sued, another High Court judge, Justice Chinhengo exhorted the government to enforce court orders and uphold the rule of law. In November 2000, the Supreme Court had also granted a similar order. These orders had been granted by consent, meaning the government had agreed that the occupations were not in accordance with the law. Nevertheless, the government said one thing but did the opposite. Thus, while accepting that the land reform process was necessary, the Gubbay court ruled that the occupations that were taking place were not in accordance with the laid down laws of the land.

 

In September 2001 the Supreme Court heard another matter but it essentially involved the same parties and the same issues. However, by then, the composition of the Supreme Court had changed substantially. Chief Justice Gubbay had already been forced out of office. The government has appointed new judges to the  Supreme Court, diluting the existing composition. Chidyausiku had also been appointed as the new Chief Justice, leap-frogging more senior members who were already at the Supreme Court, such as Justice Wilson Sandura. When the Supreme Court sat to hear this second matter, 4 of the 5 judges who were appointed were on the panel. The 3 Supreme Court judges who had sat in the previous matter were excluded. This was a new Supreme Court essentially set up to revise the decision of the old Supreme Court.

 

The CFU objected to Chidyausiku’s role in the matter, believing that he was biased. They made two applications, the first for the Supreme Court to be reconstituted and second, for the new Chief Justice to recuse himself from the matter. Chidyausiku was livid. He dismissed both applications holding that only he, as Chief Justice or the Minister of Justice had the power to reconstitute the court. He dismissed the application for recusal, interpreting it as a disguised attempt by the CFU to get judges that were favourable to its cause. Chidyausiku had previously accused Chief Justice Chidyausiku[PHS IS1]  of having reassured white farmers that they would get judicial protection if they challenged the land reform programme. “The application to this court to reconstitute itself is therefore misconceived and without any legal foundation,” wrote Chidyausiku. “This application [for recusal] is just a disguised attempt to have the court reconstituted and should be dismissed for the same reasons. The main thrust of the respondent’s argument is that it does not like the political background of the Chief Justice and by implication it would prefer a court made up of judges with political backgrounds of its own liking.” With that, Chidyausiku refused to stand down.

 

In fact, Chidyausiku was so incensed that he issued a stinging rebuke directed at the CFU’s lawyer, Advocate Adrian De Bourbon SC whom he accused of “unbridled arrogance and insolence”. A furious Chidyausiku wrote:

 

“I would like to assure legal practitioners that they are most welcome to make representations on the composition of the court whenever they feel constrained to do so. Such representations will receive due consideration whenever they are properly made. Such applications or representations must be made with the professionalism and dignity we have become accustomed to expect from legal practitioners as officers of this court. The unbridled arrogance and insolence with which the application for the reconstitution of this court was made in this case is simply astounding and, to say the least, unacceptable. This is the first and the last time that such contempt of this court will go unpunished. Legal practitioners are reminded that this court has an inherent disciplinary power over legal practitioners as officers of this court in matters of misconduct or unprofessional conduct. This court will in future deal with contempt of this court firmly and decisively. The only reason why stern action was not taken in casu is that this case is of extreme national importance and distraction from the main issue was to be avoided at all costs.”

 

On the merits, the Chidyausiku court virtually reversed the previous decision of the Gubbay Court. Although the government had failed to remove the land occupiers in defiance of court orders, the Chidyausiku court ruled that the government was not in contempt of court. He ruled instead that the government had legalised the land occupations through the enactment of the Rural Land Occupiers (Protection from Eviction) Act which suspended the operation of the court orders for the eviction of settlers. Notwithstanding the fact that the Rural Land Occupiers Act was unconstitutional and that there was still chaos and lawlessness, Chidyausiku ruled that it had restored the rule of law on the commercial farms. It was clear that Chidyausiku was not going to stand in the way of a cause that he believed in so passionately, whatever the niceties of the law.

 

Chidyausiku’s judgment demonstrates a preference for a dry and formalistic approach to the rule of law, the focus of which is limited only to procedural legality regardless of the substantive qualities of laws.  He expressed his definition of the rule of law as “its essence is that the law is supreme over decisions and actions of government and private persons. There is, in short, one law for all. The concept postulates that the exercise of all public power must find its ultimate source in a legal rule. In other words, the rights enjoyed and powers exercised must derive from duly enacted or established law. Put another way, the relationship between the State and the subject must be regulated by law.” There is no room in this definition for fundamental rights and freedoms to qualify the law for there to be the rule of law. Under Chidyausiku’s narrow definition, an unjust law which states that all left-handed persons must be banned from attending school would satisfy the requirements of the rule of law as long as it is enacted by Parliament.  This is why he reached the conclusion that the mere enactment of the Rural Land Occupiers Act was an enforcement of the rule of law.

 

In fact, rather shockingly, he used the definition of the rule law to excuse the criminal acts that were taking place on the commercial farms. He wrote, “The presence of the rule of law does not mean a totally crime-­free environment. By definition, the concept of rule of law foresees a situation in which behaviour proscribed as criminal will occur. To expect the [government] to bring about a totally crime-­free environment in the commercial farming areas of Zimbabwe would be inconsistent with the concept of the rule of law and its practical application …” It is impossible to imagine how a Chief Justice could have come up with this statement as a sound proposition of the rule of law. How can expecting a crime-free environment be regarded as inconsistent with the rule of law?

 

Understandably, the only judge who had sat in the Gubbay Court which decided the first CFU case disagreed with Chidyausiku’s majority judgment. Justice Ebrahim warned that judges should not allow their personal or political opinions to override the law. The fact that a law was unjust did not justify courts disobeying it or condoning disobedience with the law. In his view, courts that are sworn to uphold the law should “never allow their personal, subjective view of what constitutes justice to override the clear provisions of the law. It is not the function of the courts to support the government of the day, or the would­-be government of tomorrow. It is not their function to support the State against the individual, or the individual against the State. The courts’ duty is to the law and to the law alone. Judges, as individuals, have their own political, legal and social views and opinions. But it is the sworn duty of every judge to apply the law, whatever he or she may think of the law. If a law is patently unjust, the courts can seek to ameliorate matters as far as possible, within the law, but they may never subvert the law.”

 

Justice Ebrahim decried the fact that the Chidyausiku court had made a wholesale change to the approach of the Supreme Court merely because there were now new judges. “A change in personalities in this court, or any other, should not mean a wholesale change in its approach,” wrote Justice Ebrahim. “As I have said, the judges of this court, as of the other courts, have their own personal viewpoints on a number of topics, whether those topics be politics, religion, social mores and so on. But we are all sworn to uphold the law, and when we do so our personal views take second place. We must follow precedents unless those precedents are clearly wrong.”

 

However, Justice Ebrahim was a lone voice in the Chidyausiku court packed with hand-picked judges whose appointment was designed to dilute the outgoing Gubbay court. Their job, under Chidyausiku’s leadership, was to legalise the land revolution. Part of that task required a reversal of the Gubbay Court’s decision which had ruled that the land occupations were unlawful. With the judges as direct beneficiaries of the land seizures, they had personal interests in the legalisation of the process. They were not going to rule against the government. Their judgment gave government the formal legitimacy it had been craving for.

 

Historical treatise on the Land Question

 

Although it is tempting to analyse Chidyausiku’s role on the land question on the basis of his judgments after his appointment as Chief Justice, that approach would be too narrow and would certainly not do justice to his body of work on this important issue. As a matter of fact, the most important and vivid illustration of his revolutionary approach to the Land Question came much earlier in 1990s when he was still at the High Court. The case of Davies & Ors v Minister of Lands, Agriculture & Water Development 1994 (2) ZLR 294 (H) is evidence of Chidyausiku’s earlier footprints on this issue. It was cases like Davies which made him stand out and an obvious choice for the government when it came to reconstituting the Supreme Court in order to provide judicial backing to the land reform exercise which was so plainly being carried out against the existing rules. Mugabe and ZANU PF needed a Chief Justice who understood and believed in their cause and who would be prepared to break with judicial tradition and ignore the existing rules or the rule of law in order to promote and advance the land revolution. The Davies case demonstrated that Chidyausiku would be equal to the task. It needed a water-carrier who would do whatever was necessary, including the unsavoury shifts, in order to achieve the goal of land reform.

 

The facts of the case were very simple. Davies had brought an application to the High Court, challenging the designation of his farm in terms of the Land Acquisition Act (No. 3 of 1992). The application which was also brought on behalf of others farmers sought to declare certain provisions of the Act to be unconstitutional. The matter came before Chidyausiku. He had to decide whether designation of land without compensation violated the Constitution. The argument was that designation of land amounted to acquisition of an interest in property and as there was no compensation for designation, this violated property rights protected under the Constitution. Chidyausiku held that designation without compensation was not unconstitutional. He reasoned that the state had sovereign authority over all land and could acquire it in the public interest, albeit in compliance with constitutional requirements for compensation. He held that while designation was not acquisition, it was nevertheless control or regulation of private property which was also permitted in the public interest. Where such power is exercised reasonably and properly, there is no need to pay compensation to affected persons. Compensation could only be paid where the regulation or control amounts to acquisition. In drawing a distinction between acquisition and control, Chidyausiku ruled that designation was merely a control measure.

 

It is ironic that in making this judgment, Chidyausiku placed heavy reliance on American jurisprudence, even commenting favourably that “the American approach seems to be consistent with common sense”. However, the Davies case is remarkable as the case in which Chidyausiku planted his flag firmly on the ground as far as the Land Question was concerned. He made a pitch for land reform which read more like a political thesis. It is a lengthy quote but to understand the man behind the judgments after he became Chief Justice, it is only fitting that the whole lecture he gave be quoted in full:

 

“… the fact of the matter is that the facts that make land acquisition for resettlement a matter of public interest in Zimbabwe are so obvious that even the blind can see them,” he wrote. “These facts make the resettlement of people a legitimate public interest. In my view, anybody who has lived in Zimbabwe long enough needs no affidavit to know the following facts, which are common knowledge, which make acquisition of land and for resettlement imperative in public interest. These are:

 

once upon a time all the land in Zimbabwe belonged to the African people of this country. By some means foul or fair, depending on who you are in Zimbabwe, about half that land ended up in the hands of a very small minority of Zimbabweans of European descent. The other half remained in the hands of the large majority, who were Africans. The perception of the majority of Africans was that the one half in the hands of the minority was by far the better and more fertile land, while the other half, which they occupied, was poor and semi­-arable. It is also common knowledge that, when the Africans lost half their land to the Europeans, they were paid nothing by way of compensation.

 

Successive enactments on the land entrenched the inequity of the land distribution in this country. The Land Commission of 1925, the Land Apportionment Act 30 of 1930 and the Land Tenure Act 55 of 1969 ensured that the Africans in Zimbabwe, who formed the vast majority of the population, were overcrowded in semi­-arable land, referred to sometimes as native reserves, whilst the minority Europeans retained the better half.

 

In terms of the above statutes, the land in this country was divided into European and African areas. In terms of the Second Schedule to the 1969 Land Tenure Act, the total extent of the African area was 44 949 100 acres and the total extent of the European area was 44 949 300 acres. The vast differences in the population of the two groups counted for nothing in the distribution of the land. Attempts to redress the land issue by peaceful means were not successful. The Africans took up arms and an armed struggle ensued.

 

The Lancaster House agreement marked the end of the armed struggle and the transfer of political power to the Africans. The Constitution that came out of the Lancaster House agreement imposed certain restrictions regarding the redistribution of land. As of now, the perception still exists that still large portions of the land remains in the hands of a small minority of European descent, while the majority of the Africans are still crowded in semi­-arable communal land. The majority of the Europeans who own land are able and willing to release some of the land to resettle Africans. They are willing to sell it to a cash strapped Government at a premium. On the other hand, the majority of Africans who are still crowded in the communal areas are more than anxious to be resettled on land they see as their own taken from them wrongly in the first place. They see no merit in having to pay for land that was taken from them without compensation in the first place.

 

In the result, I have come to the following conclusions, that ­ facts that are common knowledge which the court can take judicial notice of establish that the programme of resettlement of people is in the public interest and designation is part of that programme.”

 

This was a bold statement from the bench, laying ground and effectively providing justification for land reform. An analysis of what happened over the land issue after 2000 will demonstrate that it followed the very same principles that Chidyausiku articulated in his judgment in the Davies case. For Chidyausiku, whatever the rules said, there was an historical injustice which needed to be resolved. In this judgment, Chidyausiku demonstrated his credentials as a driver of land reform long before most politicians jumped onto the bandwagon. It explains why the CFU was not comfortable with him chairing the judicial panels deciding the land reform cases. They believed he was biased and hostile. For his part, he believed he was correcting historical injustices. The revolution needed to be defended and he was ready to take on that role, even if that came with serious consequences for his reputation among peers.

 

The political judge

 

In relation to politics generally, beyond the land issue, the tenure of Chief Justice Chidyausiku eerily echoes the tenure of a predecessor, Chief Justice Sir Hugh Beadle. That their political roles and profiles were more prominent than other Chief Justices is probably down to the fact that both men presided over the judiciary during politically-charged periods. Sir Hugh Beadle was Chief Justice during the tumultuous period of UDI, during which time he took on the role of mediator and go-between with the British Crown represented by the Governor on the one hand and the rebellious Smith regime on the other hand. As we have already seen, Chidyausiku presided over a period of the highly contentious and politically-sensitive fast track land reform programme. While Sir Hugh Beadle’s political role was more apparent, Chidyausiku played his political role more softly under the cover of judicial robes, with the sound of the gavel and stroke of the judicial pen. Apart from the land-related cases, which have already been analysed in some detail, there are other important cases in which politics played a major role.

 

 

Thwarting Tsvangirai

 

The first of these is the case of Tsvangirai v Registrar­ General & Ors (1) 2002 (1) ZLR 268 (S) which was brought and decided shortly before the 2002 presidential election. Morgan Tsvangirai, leader of the MDC and Mugabe’s main rival at the time, brought an application to the Supreme Court a day before the elections were due to commence. He was aggrieved by Mugabe’s amendment of the Electoral Act just 3 days before the election. Tsvangirai’s grievance was neatly summed up by Justice Sandura in his dissenting judgment:

 

“The [Presidential] Notice was issued three days before the presidential election commenced and dealt with vital and important issues relating to the manner in which the election was to be conducted. It altered the provisions of the Electoral Act in material respects and, consequently, the conditions under which the election was to be conducted. The applicant was aggrieved by the provisions in the Notice because he believed that they gave the third respondent [Mugabe] an unfair advantage over him in the election. Accordingly, acting in terms of s 24(1) of the Constitution, he brought this urgent application directly to this court challenging the constitutionality of s 158 of the Electoral Act and the Notice.”

 

The notorious section 158 of the Electoral Act which Mugabe had used to issue the changes gave him excessive powers to change the rules of the game. Tsvangirai also complained that legislation limiting postal ballots to members of the armed forces denied other voters the right of freedom of expression.

 

In response, the government argued that Tsvangirai had no locus standi (legal standing) to bring the case. Shockingly, the Chidyausiku court agreed with this narrow interpretation of the Constitution, thereby denying Tsvangirai the right to be heard. Chidyausiku said Tsvangirai could only have standing by showing that the Declaration of Rights was being infringed in respect of him directly. It was up to his supporters, not him, to bring legal action seeking relief.

 

Both the decision and reasoning were shocking. This flawed nature of the majority judgment was exposed by Justice Sandura’s sole dissenting voice. He explained how in the past the Supreme Court had always taken a broad view of legal standing so that real issues were determined ahead of technicalities particularly where the applicant has a real and substantial interest in the matter. “… I wish to say that in the past this court has taken a broad view of “locus standi” in applications of this nature in order to determine the real issues raised where the applicant has a real and substantial interest in the matter,” said Sandura, reminding the majority of the Supreme Court of cases in which persons acting on behalf of others had brought constitutional litigation. In the case of Catholic Commission for Justice and Peace in Zimbabwe v Attorney­ General & Ors 1993 (1) ZLR 242 (S) the CCJP had brought a case on behalf of jailed prisoners. In the case of Law Society of Zimbabwe & Ors v Minister of Finance 1999 (2) ZLR 231 (S) a body representing lawyers had brought a case challenging tax provisions. There had been many other cases of that nature.

 

It did not make sense to deny Tsvangirai, a presidential candidate the right to be heard on the spurious ground that he was not directly affected. Who could be more interested in an election and the changing of electoral laws than a candidate in that election? As Sandura stated, “Any person affected by a law inconsistent with the Declaration of Rights has the right to approach E the Supreme Court for relief. The section of the Electoral Act which gives the President the right to amend the Act was arguably inconsistent with the Constitution. The applicant was a person adversely affected by amendments made by the President and thus had the right to approach the court for relief.” Yet Chidyausiku’s majority decision basically denied Tsvangirai the right to be heard.

 

It is incomprehensible how the Chidyausiku and the majority denied Tsvangirai the right to be heard except on grounds of political bias. There was no legally sound reason to deny him the right of audience. As Justice Sandura stated, Tsvangirai had the right to demand that the election be conducted in accordance with a proper law passed by Parliament.  

 

The problem would return again in 2013, when Mugabe proclaimed the election date and amended the Electoral Act using regulations under the Presidential Powers (Temporary Measures) Act. Here again Mugabe’s conduct was blatantly contrary to express provisions of the Constitution which required any changes to the Electoral Act to be done through primary legislation. When this was challenged by the opposition, the Chidyausiku court dismissed he challenge, once again condoning plain violations of the law and the Constitution. Both these elections were carried out under unlawful legislation but the highest court in the nation condoned the illegalities.

 

Another contrasting case in which double-standards were apparent was the Jealousy Mawarire case which prompted the 2013 elections. Mawarire’s principal argument was that President Mugabe was violating the Constitution by failing to proclaim election dates when the tenure of Parliament was due to expire. He argued that this would affect his rights and the rights of others. One key question was whether Mawarire had locus standi. It was similar in many ways to Tsvangirai’s case just before the 2002 elections. In contrast to his dismissive approach in the Tsvangirai case in 2002, Chidyausiku readily accepted that Mawarire had locus standi.  Chidyausiku was not wrong to find that Mawarire had locus standi in the 2013. He simply adopted the approach that the court had taken in the past as duly confirmed by Sandura in the Tsvangirai case back in 2002. What was wrong was for Chidyausiku to deny Tsvangirai the right to be heard in the 2002 case on the spurious ground that he did not have legal standing. But then, in the Mawarire case it was in the interests of ZANU PF to get judicial validation for early elections without reforms, whereas in 2002 it was not in ZANU PF’s interests to declare that Mugabe’s powers under section 158 of the Electoral Act were unconstitutional and illegal.

 

Indeed, after SADC recommended that Zimbabwe extends the deadline for elections in 2013, it was obvious that it was a useless recommendation since this fell to be decided by the Chidyausiku court and it was clear that he would disregard SADC’s word. ZANU PF wanted an early election and Chidyausiku was not going to stand in the way. He was certainly not going to listen to SADC and therefore uphold the opposition’s demands for more time. Later, after the controversial elections, when Tsvangirai withdrew his presidential election petition, the Chidyausiku still insisted upon proceeding with the petition. It did not make sense since the petitioner had withdrawn the petition. But Chidyausiku did not want to be deprived of the opportunity to make a judicial pronouncement on the validity of the election. He realised that accepting Tsvangirai’s withdrawal would mean the newly established Constitutional Court would not be able to endorse the election as they had hoped. So the charade went on, as the Constitutional Court sat to decide on a virtually dead matter after summoning Tsvangirai’s lawyers to the court. Tsvangirai’s withdrawal was a response to a number of reasons, including the fact that the courts had conspired to prevent the availability of election materials which were necessary for the prosecution of the case and it was plain that he would not get a fair hearing and the petition would only serve to give the Chidyausiku court an opportunity to confirm the validity and therefore legitimacy of a flawed election.

 

 

Punishing Bennett

 

Another important case which demonstrated Chidyausiku’s political biases was the case of Bennett v Mnangagwa NO & Ors 2006 (1) ZLR 218 (S). This is the case that involved the physical confrontation in parliament between Roy Bennett and Patrick Chinamasa. During a heated parliamentary debate Bennett had pushed Chinamasa after the latter had provoked him with certain personal comments. Chinamasa lost balance and fell to the ground. Bennett had been found guilty by Parliament sitting as a court and sentenced to a term of imprisonment for 15 months.

 

Bennett challenged the constitutionality of his trial and the sentence that was imposed. He argued that he had not received a fair hearing since the committee that decided his case and Parliament consisted of a majority of ZANU PF MPs who had voted on party lines.

 

Writing for the majority, Chidyausiku held that while 15 months’ imprisonment was severe, it was not a grossly disproportionate sentence. He equated the assault to an assault upon a judge during court proceedings and “must rank among the worst cases of contempt of Parliament. The applicant was not contrite and indeed bragged and boasted about what he had done.” The tone of his judgment was harsh and intemperate, approximating that of an aggrieved party. He was equally dismissive of the view that Chinamasa had provoked Bennett, stating that the insults that Chinamasa had traded were common and Bennett should not have been surprised by them. Chinamasa had made generalised references to Bennett’s ancestors as thieves during a debate on the Stock Theft Bill.

 

Chidyausiku dismissed Bennett’s view that Parliament and the Privileges Committee which passed the sentence were not impartial tribunals since they were dominated by ZANU PF members. He wrote,“I do not accept that the appointment of three out of five members of the Committee from ZANU (PF) to enquire into the alleged contempt of Parliament by the applicant per se constitutes a violation of the rules of natural justice that nobody should be a judge in his own cause.” He refused to question the role of Parliament sitting as a court, saying “when Parliament sits as a court it is not sitting as a court of law or an adjudicating authority. It is a court of its own kind, created by law …” He reasoned that this meant it did not have to follow the principles and rules normally associated in court proceedings. He refused to apply the right of protection of law to parliament sitting as a court suggesting that the Declaration of Rights did not apply to such matters.

 

Again it was Justice Sandura who provided the sober voice of reason and moderation, but as had become tradition, his was a lone voice in a packed Supreme Court. In his dissenting judgment, Justice Sandura held the sentence was grossly disproportionate and outrageous given that it was a common assault. He wrote, “there could be no doubt that the sentence was grossly disproportionate to the seriousness of the offence and was therefore unconstitutional … In my view, no one could possibly have thought that the offence committed by Bennett, which was essentially a common assault, deserved a term of imprisonment. Any term of imprisonment imposed for such an offence would be a sentence which is so excessive as to shock or outrage contemporary standards of decency.” He warned that “a sentence of imprisonment is a rigorous and severe form of punishment which should be resorted to only when it is absolutely necessary to do so.” He thought other forms of punishment would have been appropriate and that the “excessive devotion to the cause of deterrence” should have been curbed.

 

Sandura also noted that the Attorney General had initially conceded in his written submission that the sentence was excessive and grossly disproportionate to the offence, before that concession was mysteriously withdrawn without any valid reason being offered. Sandura reasoned that the failure to give a valid reason for the withdrawal of the concessions should mean that there was no valid reason justifying the withdrawal of the concessions. However, Chidyausiku took a different approach, completely refusing to recognise the concessions and instead holding on to the point that it had been withdrawn, albeit without any reason being offered. Chidyausiku had no interest in the fact that the Attorney General had conceded on the excessiveness of the sentence. In the end, Bennett served his sentence.

 

The ZANU PF lawyer

 

The pattern of Chidyausiku’s judgments is consistent with his political background. Before he entered the judiciary, Chidyausiku had been an active politician and he was a member of ZANU PF at independence. He was elected to Parliament on a ZANU PF ticket in the first democratic elections in 1980. He was appointed to first government by Mugabe, where he served as a Deputy Minister.  

 

Chidyausiku was also the ZANU PF lawyer, representing the party in an important case just before the 1980 elections: Zimbabwe African National Union (Patriotic Front) v United African National Council and Others 1980 ZLR 69 (G) The facts were that on 23 February 1980 ZANU PF brought an application to the High Court seeking to stop its rival, Bishop Abel Muzorewa’s UANC from providing food, drink and entertainment at Huruyadzo - a political rally which was billed as the biggest in history, lasting 4 days. The UANC promised that there would be a draw at the rally with six ­cars on offer as prizes. Part of the advert read: “The biggest rally in the history of Zimbabwe starts on Thursday, February 21st. There will be so much to hear, so much to see and so much to do that the UANC Huruyadzo Rally will last for four days, until Sunday, February 24.”

 

ZANU PF argued that the conduct of the UANC was unfair on other competitors as it was designed to influence voters. It wanted the court to stop the UANC from doing these acts. The Court held that providing food, drink and entertainment to voters was not an offence.  The court stated: “It is not an offence to provide food or drink or entertainment. It only becomes an offence if it is done for the purpose of corruptly influencing a voter how to vote, in other words, either to vote or to refrain from voting in the particular manner so influenced … You may have to bring people to Salisbury, and you are allowed to bring people to Salisbury in order to attend the rally. That is perfectly permissible. You may provide them with food and drink in order to enable them to participate in the meeting and listen to speakers in the manner I have described.” However, the court found that the proposed draw of cars was a different category of conduct and amounted to an offence of bribery in terms of the Electoral Act. In the court’s view, it was not necessary to enable persons to attend the rally.

 

Chidyausiku’s representation had delivered a partial victory for ZANU PF, at least in so far as the car draw was concerned. The irony of cause is that once it gained power ZANU PF has gone on to mimic and perfect the UANC’s conduct in 1980 – essentially abusing state resources in order to influence voters. Even acts of alleged corruption have been justified on the basis of promoting party interests. In the last four decades Chidyausiku has been called upon on several occasions as a judge to make decisions in cases where his old party, ZANU PF is involved, often as a perpetrator of electoral malpractices. His attitude towards Tsvangirai when he brought his case just before the 2002 election is therefore hardly surprising. Nor is his approach in the Bennett case. And indeed, his judgment in the Jealousy Mawarire case just before the 2013 elections and the subsequent petition after it.

 

It is hardly surprising that the opposition parties were pining for a complete overhaul of the judiciary during the constitution-making process. It was prompted by the belief that the Chief Justice and most of his team on the bench were biased against the opposition. There was controversy over judicial appointments during the Inclusive Government, with Mugabe refusing to consult with his Prime Minister whenever judges had to be appointed. Mugabe preferred to do as he had always done in the past – exercise the power without any checks and balances. On the day that he signed the new constitution into law, moments before this ceremony, Mugabe conducted a swearing-in ceremony of judges, unbeknown to his fellow principals. The sole purpose of appointing judges literally on the eve of the new constitution coming into force was to avoid new provisions that would have required Mugabe to submit to checks and balances, such as public nominations and interviews. 

 

 

In the women’s corner

 

While his role in the land cases was clearly activist in so far as promoting the cause of land reform was concerned, and while his attitude towards civil and political rights has been less than enthusiastic, Chidyausiku has a few cases in which he showed an activist streak. One of the most emblematic cases, which is often undervalued is the case of Chawanda v Zimnat Insurance Co Ltd 1989 (2) ZLR 352 (H) decided when he was still at the High Court.

 

The Chawanda case was revolutionary for its time, a great step forward in advancing the cause of African women. Chief Justice Dumbutshena had set the tone in an earlier case, the famous Katekwe v Muchabaiwa (1984) which confirmed the status of women as majors. The central question in Chawanda was whether a woman who was in an unregistered customary union was entitled to compensation for loss of support arising from unlawful killing of her partner. A driver insured by Zimnat had caused the death of the claimant’s partner (husband at customary law). The claimant sued for compensation. The case was tricky because an unregistered customary union was not recognised as a valid marriage, which meant the duty of mutual support which emanates from such a contract was not ordinarily recognised at law. Yet for all intents and purposes, the claimant was regarded as married to her husband under customary law even though the law did not recognise their unions as valid marriages. 

 

Chidyausiku ruled that she was entitled to compensation. He stated that he was prepared to exercise his judicial law-making function in order to protect women. He wrote, “ … the case before me is a proper case for the exercise of my judicial law­-making function … The proposition that the courts have a law­-making function is well settled ...” he said before adding, “There is no doubt that to refuse the plaintiff this right of action is inequitable. This approach is, in my view, consistent with the sentiments expressed by Dumbutshena CJ in Katekwe v Muchabaiwa, namely that the courts by their judgments should seek to heal the pangs inflicted on African women by legal disabilities. This is a movement towards the removal of legal disabilities suffered by African women.”

 

This bold statement of judicial activism  early in his career which contrasts sharply with the literalist and mechanist approach he adopted in later cases, such as the labour decision which condemned many workers to redundancy in 2015. It is hard to reconcile this open-minded judge with the judge who denied Tsvangirai the right to be heard in 2002 apparently because he did not have legal standing even though he was a key presidential candidate in that election. Anyway, the decision in Chawanda case was clearly aimed at improving the position of women and it was widely welcomed by rights groups and upheld by the Supreme Court. That was Chidyausiku the activist judge standing up for the ordinary person and to use one of his favourite phrases, “common sense”.

 

Four years after Chawanda, Chidyausiku handled one of the most high profile litigation after independence - the trial of former President Canaan Banana who was accused of sexual offences. It was a case that attracted enormous media scrutiny, both within and outside Zimbabwe. It was a case in which he also demonstrated an approach for unconventional and a preparedness to be innovative in service of the ordinary man. In sentencing the former President, Chidyausiku decided to award compensation to the victims. One of the victims, Jefta Dube, had killed a man who had allegedly called him “Banana’s wife”. Chidyausiku ordered the former President to pay a total of $Z500,000 to Dube and the murdered man’s wife. Justifying his unique approach, Chidyausiku said,

 

“Given this situation, the approach to sentence in this matter has to be unique to suit the unique facts of this case. The unique facts of this case are that the State completely let down the complainant by its conscious decision not to prosecute or offer the complainant any form of assistance in his predicament. Given this situation, when it comes to sentence, the interests of society or the State has to take the back seat, while the interests of the complainant takes the front seat. The focus in sentencing the accused in this case must focus on doing justice as between the accused and the complainant. Justice for the complainant must mean receipt of some form of compensation for the abuse he received at the hands of the accused, while the State merely looked on, oblivious of its duty to protect the complainant.

 

There is need therefore in this case, for compensation for the complainant and the secondary victim, the person or family of the person killed by Jefta Dube for having called him the “wife of Banana”. On this approach, I have decided to suspend a large portion of the sentence which the accused should serve on condition that the accused pay a restitution.”

 

It was certainly a unique approach to sentencing, the bottom line being to award some relief to the victims. This was important in light of the fact that the civil claims had prescribed and there would have been no compensation. Here was a judge trying to do right by victims in a criminal trial.     

 

Uneasy relationship with workers

 

Two judgments encapsulate Chidyausiku’s inconsistency in respect of the rights of employees in their relationship with employers. In one case, Chidyausiku went out of his way to defend workers, but in another he bluntly applied the law in a way that left workers exposed. I will start with the more positive judgment.

 

The question of bonus

 

In Zimbabwe Teachers’ Association & Ors v Chairman, Public Service Commission & Ors 1996 (1) ZLR 91 (H) when he was still at the High Court, Chidyausiku was called upon to decide whether or not the government could unilaterally cancel public servants’ accrued bonus. In early 1995, the government had issued regulations providing for the payment of an annual bonus to public servants. However, in September 1995, Mariyawanda Nzuwa, Chairman of the Public Service Commission announced a cancellation of bonuses for public servants. A few days later, the PSC amended the regulations confirming the cancellation. Naturally, public servants were aggrieved by this decision. ZIMTA, an association representing teachers, challenged the legality of the PSC’s decision.

 

In his judgment, Chidyausiku ruled in favour of ZIMTA that the State was bound by its contracts of employment with public servants. Since it had agreed to pay an annual bonus, it was therefore legally obliged to meet that contractual commitment. He also ruled that the PSC did not have the power to make retrospective regulations as it had purported to do. Chidyausiku’s judgment was very positive:

 

“I find myself in agreement with the view that the State is legally obliged to pay a bonus where it has contracted to do so. The view that accepts the contractual liability of the State is more enlightened and in line with the needs and the exigencies of a modern state. A modern state needs to attract into its service people of high calibre and ability. Those people can only be attracted into the service of the State by favourable conditions, including security of tenure and an assurance that their salaries would be paid at the end of the month. It would be a sad day if the legitimate expectations of the civil servant to be paid a salary at the end of the month were to be left to the whims of a Public Service Commission, which by the way it has handled this case, has failed to impress as a model employer. The State should not be seen to be in the practice of deceiving its servants by promising its servants one thing and reneging on such promises at will with impunity.”

 

Chidyausiku could not have been more positive towards the plight of ordinary workers, although it left them exposed in future, for it meant the State could cancel bonus before it had accrued. Still, it was better than nothing. 

 

The Zuva disaster

 

Chidyausiku’s attitude towards workers in this case could not be more different to his attitude two decades later, when in 2015 he presided over the infamous case of Don Nyamande and Anor v Zuva Petroleum. In this case the employees’ contracts of employment had been terminated on notice in terms of their contracts and they were paid cash in lieu of notice. On arbitration, the arbitrator decided that the termination was unlawful since it was not in accordance with the relevant code of conduct. However, the Labour Court upheld the employer’s appeal on the basis that the employer’s right to terminate employment on notice was intact. The Supreme Court had to decide whether the Labour Court was right in its conclusion that an employer could terminate employment on notice. Using a narrow, literal interpretation of the Labour Act, the Chidyausiku court held that the employer’s right to terminate employment on notice had not been affected by the statute. He interpreted the statute to mean that it did not include termination of employment on notice as an unfair labour practice. He concluded that the employer’s common law right to terminate employment on notice was protected under the law.

 

The immediate effects of the Zuva judgment were devastating as it literally plunged workers into a world of darkness. Employers that had hitherto been unsure pounced on the opportunity and began to dismiss employees en masse.  The judgment was a boon for employers who had been forced to carry a large labour force, often beyond their immediate needs, in light of the tough economic environment. The expense of pursuing the retrenchment route and the risk of damages for unfair dismissal if they terminated on notice deterred them from taking any action. Therefore, when the Zuva judgment came, it opened the floodgates of terminations. For employees, the Zuva judgment was an ominous sign. There was a huge outcry across the country. The labour movement condemned the Supreme Court, while critics accused the judges of taking a neo-liberal route which prioritised the interests of capital and condemned labour. The pressure resulted in government fast-tracking a Labour Amendment Bill, with cross-party support, the purpose of which was literally to reverse the Zuva judgment. When the Bill became law, it was written so as to have retrospective effect back to 17 July 2015, the date of the Zuva judgment. 

 

In Chidyausiku’s case, for a man who had been hailed by workers of his Zimta judgment, the Zuva judgment was on the opposite end of the scale. What had changed? Perhaps the mentality arising from social circumstances had changed. In 1995, Chidyausiku was an ordinary judge with a sympathetic ear to the plight of the worker. In 2015, as a member of the recently landed class and an employer, he probably had a better understanding of capital.

 

 

Legacy of dirty hands

 

Few cases capture the legacy of the Chidyausiku court’s restrictive approach to human rights as the Daily News’ case which ushered the Dirty Hands doctrine into Zimbabwe’s human rights jurisprudence. The formal name of the case is Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister for Information and Publicity in the President's Office and Others 2004 (2) SA 602 (ZS). The central party to this case was the Daily News, the biggest and most vibrant private newspaper operating at the time. The government had just introduced the Access to Information and Protection of Privacy Act (AIPPA), a notorious piece of legislation widely condemned for alleged restrictions on media freedom. ANZ, the publishers of the Daily News did not register with the Media and Information Commission, the public regulator set up under AIPPA to register media houses and journalists. ANZ then approached the Supreme Court challenging the constitutionality of provisions of AIPPA. The Chidyausiku court refused to give audience to ANZ on the ground that having not complied with AIPPA, it had dirty hands, hence the Dirty Hands doctrine. Chidyausiku wrote:

 

“This court is a court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.”

 

The implication of this was that a litigant wishing to challenge the constitutionality of legislation had to comply first in order to come to court with clean hands. This did not make sense where compliance would make the constitutional challenge academic. It was the first time that the Supreme Court brought the Dirty Hands doctrine, a doctrine of equity into the arena of human rights with the sole purpose of denying an applicant the right to be heard. The court was more concerned with procedural niceties as opposed to the real substance of the issue, namely, whether or not AIPPA was constitutional.

 

This decision ultimately led to the closure of the Daily News. A few days after the judgment, ANZ submitted an application for registration but it was turned down by the MIC. There were subsequent legal wrangles, which eventually brought the challenge back to the Supreme Court. Although some provisions were found to be unconstitutional, key provisions were upheld. The Daily News only returned to the streets 6 years later after the Inclusive Government was established and media freedoms were relaxed. The government had achieved its purpose of banning its most critical voice and the Chidyausiku court had played its part. Even through Chidyausiku tried to defend his decision, most observers saw the treatment of ANZ as political punishment for the Daily News. 

 

Chidyausiku argued in the second case that ANZ had not been barred from approaching the court but that it was required to submit itself to the law first. His view was that ANZ had acted in disdain of the law when it did not register and that this was unacceptable. He denied that the applicant was being punished for its editorial inclination.  “The applicant’s contention that it is being victimised because of its editorial inclination is totally without foundation,” he wrote. “The issue is not the contents or slant of the applicant’s newspapers. There are several mass media service providers that are as critical of the Government and the establishment as the applicant’s newspapers. They registered and are operational. The issue, as far as this court is concerned, is one of compliance with the law. Nothing more and nothing less. Nobody is above the law and that includes the applicant.” He pointed out that ANZ had a number of options before it after AIPPA became law: it could have complied and challenged the legislation’s unconstitutionality as other media companies had done or it could have stopped publishing while making a challenge.  Chidyausiku was of the view that the applicant had been arrogant and created problems for itself by not registering. This seems to have annoyed him, leading to him adopting a punitive stance against ANZ. There is no doubt from this judgment that he believes his refusal to entertain ANZ was justified.

 

Away from the political dimensions, the decision was not legally sound. In a critique of the judgment at the time, I argued that the Court had improperly extended a doctrine normally applied to equity into the field of constitutional rights where greater flexibility was required. Using the Dirty Hands doctrine to deny audience to a litigant seeking protection of constitutional rights could have a devastating effect on the enjoyment of fundamental rights and freedoms.

 

Significantly, however, the new Constitution adopted in 2013 reverses the effect of the Chidyausiku decision. A provision of the Declaration of Rights states in clear terms that the fact that a person has not complied with a law is not a ground to bar that person from pursuing constitutional rights litigation. In other words, contrary to the Chidyausiku judgment in the ANZ case in 2003, the Dirty Hands doctrine is no longer part of Zimbabwe’s human rights jurisprudence. If the ANZ case were to be decided under the new Constitution, the Court would be compelled to hear ANZ’s application notwithstanding the so-called dirty hands. Of course, in all other cases where constitutional rights are not invoked, the Dirty Hands doctrine may be used to bar non-compliant litigants, which is why it has been used in labour related cases where litigants may have failed to comply with the law.  

 

Overall, while the constitutional changes have removed the Dirty Hands doctrine from the human rights arena, the fact that Chief Justice Chidyausiku was behind its introduction remains one of the darker parts of his legacy of a restrictive approach to human rights. This sits uneasily with his other more progressive work as evidenced in the Chawanda v Zimnat Insurance case where he did much to advance the cause of women who were otherwise excluded. It might be said that while he was ready to advance human rights in the social arena, he was more hesitant where human rights affected the political arena, where he tended to be more defensive of the State.

 

The politician and Attorney General

 

The pro-State approach has its origins in his political background. He was a ZANU PF man before he became a judge. After his brief ministerial stint, Chidyausiku was promoted to the office of the Attorney General where he served until 1987 when he was elevated to judicial office. As AG, Chidyausiku served during the most sensitive period in post-independence Zimbabwe, where there were latent clashes with Apartheid South Africa, as well as dissident clashes in the Matebeleland and the Midlands regions, leading to an insecure security situation. This was also the period when the government responded to the dissident problem in a heavy-handed manner, launching Operation Gukurahundi, which saw thousands of civilians killed or maimed in the regions. The number of prosecutions was very insignificant. What was the role of the Attorney General at the time? What did he know about what was happening in the Matebeleland and Midlands regions? Did he give any advice to government over what was going on? Did he have any opinions over the methods used by the government? This was the time when the men like Dumiso Dabengwa and Lookout Masuku, war heroes were languishing in prison, unlawfully detained by the regime. Masuku eventually died, literally at the hands of the state. It is easy to talk about the role of the AG after 2000, because those events are fresh in the minds of most people. In recent years however, people have begun to ask questions about the role of key state actors during that most atrocious era in Zimbabwe’s history and much is yet to be told. There were commissions of inquiry, but no report has ever been made public. In any event, Chidyausiku was eventually elevated to a judge of the High Court before succeeding Sandura as the Judge President.

 

By the late 1990s Chidyausiku had leap-frogged his peers and had become the favoured choice of the government for commissions of enquiry. In 1997, Chidyausiku headed the Commission of Enquiry into the looting of the war veteran’s compensation fund. He found that millions of dollars had been pilfered by senior ministers and government officials, some claiming they were 99% disabled. It was a huge scam orchestrated by war veterans’ leader and doctor, Chenjerai Hunzvi. Nevertheless, after going through the motions and amid revelations, the inquiry fizzled out and there was virtually no prosecution, notwithstanding evidence of severe looting and corruption. In other words, the Chidyausiku Commission was a complete waste of time.

 

The constitutional commission

 

In 1999, President Mugabe set up a commission to review the constitution with a view to coming up with a draft constitution. Civil society calls for a new constitution had been intensifying. Chidyausiku was appointed to chair the 400-member commission. A draft constitution which was put to a referendum in February 2000 was rejected by the voters. After his stint with the Constitutional Commission, Chidyausiku was elevated to the top of the judiciary, to take the role of Chief Justice left vacant after the forced retirement of Chief Justice Gubbay. However, his tenure at the Constitutional Commission was not without controversy. After allegations of some irregularities involving overpayments to some female commissioners, Chidyausiku famously put it down to “a moment of weakness” on his part.

 

A few days before the referendum, he was dragged before the High Court by two of the commissioners who argued that the draft that had been gazetted was not a true reflection of the commission’s findings. In Mushayakarara & Anor v Chidyausiku NO & Ors 2000 (1) ZLR 227 (H) the applicants sought an urgent order to stop the referendum arguing that the commission did not make a full, faithful and impartial inquiry, as required by the presidential proclamation that set up the commission. They argued that the respondents had committed fraud and “railroaded the process of the commission" and ignored the views of the commissioners. The draft had been subjected to certain “corrections and clarifications” which they wanted to be declared void. However, Justice Bartlett, who heard the matter held that the President had acted lawfully and there was nothing to prevent him presenting any draft constitution to a referendum. He could make corrections, alterations or amendments to the commission’s draft and he could even discard the commission’s draft completely and use his own draft. The order to stop the referendum was therefore stopped but the application had generated sufficient publicity to cause serious doubts over the suitability of the draft constitution, which was eventually rejected.

 

Conclusion

 

As I dug into the outgoing Chief Justice Chidyausiku’s long and eventful career – as a politician, lawyer and judge - it became apparent to me that a single article is ill-equipped to do sufficient justice to its many dimensions and themes. I had to exercise extreme discipline to stop this article from becoming unwieldy. I had to battle two demands – the demand to ensure that more than one angle is represented and the competing demand to exercise word economy. My mind is comforted however by the thought that one day it will form the nucleus of a chapter in a book on law and politics in Zimbabwe. I also have in mind that it would be part of a trilogy of chapters that would include similar analyses of careers of Chidyausiku’s predecessors, namely Chief Justices Dumbutshena and Gubbay. It would not quite be the Three Musketeers but the Three Chief Justices!

 

After all has been said and done, it is fair to say that Chidyausiku charted his own course, one that has been quite distinct compared to those taken by his predecessors. He does not enjoy the stellar international reputation of his more liberal predecessors. He did not seek to emulate the course they had taken. Rather, he chose to take a different path. Where they gave strong protection to civil and political rights, Chidyausiku chose to fashion himself as a champion of social justice. Where his predecessors chose to reign in the state, Chidyausiku adopted a partnership with a government that was carrying out a mutually-shared agenda. The reason for this lay in their backgrounds.

 

Unlike his predecessors, Chidyausiku’s ideological DNA could be traced back to ZANU PF, the ruling party. He is the politician who became a judge. But he is also the judge who never forgot his politics. By contrast, Dumbutshena was not ZANU PF. Gubbay too was not ZANU PF. Chidyausiku had been a ZANU PF MP in 1980, having come number 12 on the party list in Mashonaland East in that seminal election. But he had started his politics much earlier.

 

Back in 1974, as apractising lawyer, he had won a seat in the Rhodesian Parliament representing the Harari Township (now Mbare) constituencyon the African Roll. He later stood down in 1977 but that part of his history must have some fascinating detail. It might even give us clues on some factors that shaped his ideology and approach as a judge. What was his experience in a Parliament that was dominated by a powerful racial minority? Why did he take a seat on 1974 only to stand down 3 years later before returning again 3 years later under a ZANU PF ticket? What was his experience in the judiciary after independence? Answers to these questions might reveal more about the man and the path his career took. This means there is room for further research and it is a good thing that the man still lives. He has time to tell his story.

 

How will Chidyausiku be remembered? Those who lost their rights to land will probably never forgive him, and even if they do, they will certainly never forget. Those who gained land will count him as a hero. Advocates  of the substantive rule of law will forever charge him with condoning the violation of the rule of law by an increasingly authoritarian regime. But his supporters might argue that that is only one type of the rule of law and that he did good for social justice, which is also backed by the rule of law. In fact, there is some intellectual backing for Chidyausiku’s formalistic conception of the rule of law. However, he never quite articulated it well enough. If he had used the work of eminent legal scholars like Professor Joseph Raz, a foremost exponent of the formal conception of the rule of law, he might have found intellectual support for his version of the rule of law. But judged on the widely accepted substantive conception of the rule of law, which emphasises respect for human rights, he would fail dismally.

 

Politically, ZANU PF will have no qualms with Chidyausiku’s tenure. He re-shaped the judiciary profoundly to serve and protect its interests. He probably earned himself a plot at the National Heroes Acre. The opposition parties on the other hand will be happy to see the back of him. They wanted him gone a long time ago. When the new Constitution was being negotiated, they tried, without success to show him the door through an overhaul of the judiciary, as had happened in Kenya. Chidyausiku and other judges strongly resisted that proposition.  It’s fair to say the opposition and their supporters will not miss him. Then again, much will depend on who succeeds him. It is a sign of how desperate things are in Zimbabwe that many fear the judiciary could get worse after Chidyausiku. The wrangling over the appointment of his successor and the controversy over proposed amendments to the Constitution are ominous signs. With him gone, Chidyausiku will be watching the scenes from retirement. He might even have the last laugh as Zimbabweans squirm under the weight of a hostile new Chief Justice. He will laugh louder if they start to hanker for the Chidyausiku era …

 

waMagaisa

 

wamagaisa@gmail.com

 

I wish to acknowledge my two friends, Charles and Tererai, who helped me in my research. They bear no responsibility however for the content of this article, all of which rests upon my shoulders.

 

 

 

 

 [PHS IS1]Did you mean to say Gubbay here?

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