V. A Compromised Judiciary
The ZANU-PF government has undermined the independence of the judiciary. This process began in earnest in 2000 when judges, on a number of occasions, ruled that the governments land reform program was unlawful. In a bid to revive fast-dwindling political fortunes from February 16, 2000, ZANU-PF organized and instigated war veterans to invade and occupy white-owned commercial farms.
The initial ruling on the matter was made in response to an application to the High Court by the Commercial Farmers Union, an organization representing white farmers, to have the invasion of farms declared illegal. On March 17, 2000, Justice Paddington Garwe declared that the occupation of farms by squatters was unlawful, ordered all squatters to vacate the farms within 24 hours, and directed the Commissioner of Police Augustine Chihuri to instruct his officers and members to enforce the order.20 The Court also ordered Chihuri to disregard any instruction from any person holding executive power in Zimbabwe that countered the eviction order. Commissioner of Police Chihuri appealed against the order, arguing that the police did not have sufficient resources to enforce the order. On April 10, 2000, Justice Moses Chinhengo dismissed the commissioners appeal and upheld Justice Garwes order.21 However, police still did not take enforcement action.22
On November 10, 2000, the Supreme Court granted an order by consent declaring that the entry of uninvited persons on commercial farming properties was unlawful and that police must remove all squatters from the farms.23 The order was again not implemented. On December 21, 2000, the Supreme Court ruled that the governments land reform program was unconstitutional and violated article 16 of the Constitution, which guarantees property rights.24
In response to the court rulings, the government used various strategies to bring the judiciary under its direction and control.25 These included a combination of attacks and inducements to make the judiciary more malleable. On November 24, 2000, war veterans forcibly entered the Supreme Court building where judges were about to hear a constitutional application brought by the Commercial Farmers Union; the war veterans shouted ZANU-PF political slogans and called for judges to be killed.26 In December 2000 President Mugabe described judges as guardians of white racist commercial farmers.27
Then-Minister of Information Jonathan Moyo accused the Supreme Court, particularly Chief Justice Anthony Gubbay, of being biased in favor of white landowners.28 In January 2001 Mugabe intensified attacks on the judiciary when he publicly accused Gubbay of aiding and abetting racism.29 Minister of Justice Patrick Chinamasa told Chief Justice Gubbay that the government no longer had confidence in him and asked him to step down. As a result, Gubbay resigned in March 2001, well before his term of office had expired. Following the chief justices resignation, ZANU-PF members of Parliament passed a vote of no confidence in the Supreme Court, and the Minister of Justice encouraged remaining Supreme Court judges to resign.30
In an unprecedented move, Gubbays was replaced by Godfrey Chidyausiku (a former deputy minister of justice in the ZANU-PF government and a beneficiary of the governments land reform program), who was appointed chief justice ahead of more senior judges.31 Political interference and intimidation led to the resignation of several judges, including Justice Michael Gillespie (who resigned and went into exile shortly after Gubbays resignation)32 and Justice Ishmael Chatikobo (who came under pressure after ruling in favor of a private radio station. President Mugabe later issued a presidential decree overturning his ruling and banning the radio station).33 Justice Sandra Mungwira went into exile after acquitting three MDC activists accused of murder.34 Justices Ahmed Ibrahim, James Devittie and Nick McNally were also forced into exile after receiving threats of violence when they accused the government of undermining the judiciary.35 In 2004 Justice Michael Majuru fled into exile and faxed his resignation after he was publicly criticized and threatened with investigation by the government when he ruled in favor of an independent daily newspaper that the government had banned.36
Since 2000 the government has appointed to the bench judges with previous connections and known sympathies to ZANU-PF. To ensure their loyalty, the government allocated land seized under its controversial land reform program to judges. According to Eric Matinenga, a former judicial officer and MDC member of parliament who carried out an extensive study of the judiciary in Zimbabwe, up to 95 percent of judges have been allocated farms that were forcibly seized from white commercial farmers.37 A lawyer based in Harare told Human Rights Watch:
Information on how government allocated farms seized from commercial farmers is not readily available, but l know that an overwhelming majority of judges received farms from government.38
Another lawyer told Human Rights Watch:
An independent survey of the state of justice in Zimbabwe in 2004 by lawyers representing five common law bars found that some Supreme Court and High Court Judges have been allocated land under the governments scheme and hold that land at nominal rents and at the governments pleasure. The survey concluded that Zimbabwes justice system had, as a result, ceased to be independent and impartial.40
The government has further undermined Zimbabwes judiciary by disregarding a series of High Court orders and making frequent public pronouncements attacking both the judiciary in general and individual judges in particular.41 For example, in 2005 when Justice Tendai Uchena ruled that Roy Bennet, a jailed MDC member of parliament, was eligible to contest the March 2005 election from jail, President Mugabe described the decision as stupid and asked ZANU-PF supporters to ignore the ruling.42 Justice Uchena subsequently reversed his own judgment and disqualified Bennet from participating in elections.
In August 2008amid the current political crisis and an economic collapse that has seen inflation rise to 2.79 quintillion percent at the time of this writing43the government acted to ensure the judges continued support. On August 1 the government, through the Reserve Bank of Zimbabwe (RBZ), announced in the state-run newspaper The Herald that it had bought and delivered luxury cars, plasma television sets and electricity generators to all judges.44 The government explained that the expensive products were to enable judges to focus more on their work and to enable them to work from home in the event of the frequent power cuts. There is an established pattern of such gifts, which are obviously intended to ensure the loyalty of pro-ZANU-PF judges or win over those who seek to maintain their impartiality, particularly in matters involving the government or the opposition.
Lawyer Harrison Nkomo told Human Rights Watch:
The RBZ has also allocated houses to judges and is directly augmenting their salaries over and above constitutionally guaranteed remuneration from the Consolidated Revenue Fund.46 Beatrice Mtetwa, president of the Law Society of Zimbabwe, explained that while the Law Society supports proper remuneration for judges, remuneration by the Reserve Bank compromises the administration of justice.47
On August 15, 2008, RBZ Governor Gideon Gono responded to criticism of the gifts by saying that the Reserve Bank Act legally authorizes the Central Bank to assist government programs. He added that the conditions of service for the countrys judiciary had deteriorated to levels that did not promote operational efficiencies.48 Similarly, Master of the High Court Charles Nyatanga claimed that the RBZ was merely [giving] judges essential tools to necessitate them to work effectively.49
Dr. Lovemore Madhuku, a constitutional law expert and senior lecturer at the University of Zimbabwes Faculty of Law, told Human Rights Watch:
The governments practice of providing extra-legal gifts to judges has an impact beyond how it might affect the rulings of judges in individual cases. This deeply rooted corruption undermines public confidence in the judiciary, which as recently as a decade ago was one of the most respected in Africa. Restoring trust in the judiciary will by necessity be a long-term endeavor that will not be resolved merely by a change in government.
20 See Commissioner of Police vs. Commercial Farmers Union (HC 3985/2000).
21 Address delivered by the Chief Justice Anthony R. Gubbay at the opening of the legal year in the High Court, Harare, January 8, 2001.
25 Zimbabwe Human Rights NGO Forum, Who Guards the Guards? Violations by Law Enforcement Agencies in Zimbabwe, 2000 to 2006, (December 2006); see also The State of Justice in Zimbabwe, A Report to the International Council of Advocates and Barristers by Five Common Law Bars into the state of Justice in Zimbabwe, December 2004.
26 Address by Chief Justice Anthony Gubbay, January 8, 2001.
27 Robert Martin, The rule of law in Zimbabwe, The Commonwealth Journal of International Affairs, vol. 95, iss. 384, April 2006, p. 251.
28 Harold-Barry, Zimbabwe: The Past is the Future, p. 205.
29 Robert Martin, The rule of law in Zimbabwe.
30 Harold-Barry, Zimbabwe: The Past is the Future, p. 208.
31 The State of Justice in Zimbabwe, p. 50.
32 Hativagone Mushonga, Mugabe Moulds Pliant Judges, Institute of War and Peace Reporting, May 31, 2006, http://www.iwpr.net/?p=acr&s=f&o=321302&apc_state=heniacr2006 (accessed November 5, 2008).
36 Zimbabwe judge quits, goes into exile, The New Zimbabwe, January 29, 2004, http://www.newzimbabwe.com/pages/majuru.1373.html (accessed November 5, 2008).
37 Human Rights Watch interview with Eric Matinenga, Harare, August 29, 2008.
38 Human Rights Watch interview with lawyer, Harare, August 29, 2008.
39 Human Rights Watch interview with lawyer, Harare, August 29, 2008.
40 The State of Justice in Zimbabwe, pp. 4-5.
41 In 2004 the government disregarded three court rulings in favor of Associated Newspapers of Zimbabwe to enable a banned daily newspaper to publish in Zimbabwe. The then-information minister, Jonathan Moyo, dismissed one of the judgments as academic and therefore unenforceable. Mugabe undermines Judiciary, The Zimbabwe Independent, September 1, 2004.
42 Mugabe undermining Electoral Court, say lawyers, Zimonline, March 18 2005, www.zimonline.co.za (accessed September 15, 2008).
43 New Hyperinflation Index (HHIZ) Puts Zimbabwe Inflation at 2.79 Quintillion Percent, The CATO Institute, October 31, 2008, http://cato.org/zimbabwe (accessed November 5, 2008).
44 [Reserve Bank Governor] Gono buys cars, TVs, generators for judges, The Herald, August 2, 2008.
45 Human Rights Watch interview with lawyer Harrison Nkomo, Harare, August 18, 2008.
46 RBZ Splurges on Judges, The Zimbabwe Independent, August 7, 2008.
47 Human Rights Watch interview with a human rights lawyer and senior member of the Law Society of Zimbabwe, Bindura, August 19, 2008.
48 Enhancement of Working Conditions for the Judiciary, Reserve Bank of Zimbabwe press statement, August 15, 2008. See also the Sunday Mail, August 17-23, 2008).
49 Makamure, RBZ Splurges on Judges, The Zimbabwe Independent.
50 Human Rights Watch interview with Dr. Lovemore Madhuku, Harare, August 18, 2008.