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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 government’s 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 commissioner’s appeal and upheld Justice Garwe’s 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 government’s 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 justice’s 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, Gubbay’s was replaced by Godfrey Chidyausiku (a former deputy minister of justice in the ZANU-PF government and a beneficiary of the government’s 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 Gubbay’s 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:

To my knowledge, most of the judges got farms from government. For example, for judges based in Harare, there is only one judge who has not received a farm from government.³⁹

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 government’s… scheme and hold that land at nominal rents and at the government’s pleasure.” The survey concluded that Zimbabwe’s justice system had, as a result, ceased to be independent and impartial.⁴⁰

The government has further undermined Zimbabwe’s 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 2008—amid the current political crisis and an economic collapse that has seen inflation rise to 2.79 quintillion percent at the time of this writing⁴³—the 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 itself is a potential litigant. It may find itself before the same judges who are recipients of its gifts. Notwithstanding that the tenure of judges is secure; these perks expose judges to undue influence by politicians… The donations have heavily compromised judges and have damaged their standing in the eyes of the public.⁴⁵

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 country’s 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 Zimbabwe’s Faculty of Law, told Human Rights Watch:

Judges must not only be independent, but they must be seen to be independent; and as such, RBZ action erodes public confidence in the administration of justice and in the independence of the judiciary.⁵⁰

The government’s 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.