There are reports that he may be hauled before the courts on charges of contempt of court. It is not intended here to pass judgment on the character of those comments. It is a matter which if it indeed it does come before the courts will exercise the wise faculties of the learned judges.
Having some interest in matters of judicial independence and inclined to defend the courts against political interference, it matters not to me who is doing it and I believe that it is important to exercise restraint. However, concern also arises where the law is applied selectively.
I have, in my research on Zimbabwe over the years, observed with interest the relationship between the judiciary and politicians and I have concluded that few can really raise their hands and claim them to be the cleanest of them all. This piece simply recollects moments in recent history where conduct similar to that which is currently the subject of the political and legal storm has manifested, often without consequence to its authors. Interestingly too, some characters who today point accusatory fingers do not seem to have a clean record when it comes to contemptuous behaviour towards the courts. No doubt they will justify their conduct, just as Tsvangirai will also try to justify his recent comments.
In an article in the Zimbabwe Independent on 2nd August 2002, President Mugabe was quoted as having remarked at a reception for members of Parliament (MPs) that the government would not obey judgments which it regarded as "subjective." He is quoted as having stated, "We will respect judges where the judgments are true judgments." These comments were made in reference to a case in which Justice Minister Patrick Chinamasa had been convicted of contempt of court by Justice Blackie, then a High Court judge. The report goes further to quote the President as having said that a judge who "sits alone in his house or with his wife and says ‘this one is guilty of contempt,’ that judgment should never be obeyed" (Zimbabwe Independent: 2002).
This was a statement clearly signalling that government would be at liberty to select which judgments to obey and which ones to ignore. And of course, that was not deemed enough to qualify as contempt of court.
"Night Judges, Night Justice"
In October 2000, the then Information Minister, Professor Jonathan Moyo issued vicious criticism of High Court judge, Justice Chatikobo whom he accused of being a "night judge dispensing night justice" having granted an urgently sought interdict after hours. A new radio broadcasting company, Capital Radio had sought urgent protection of the courts against Moyo who wanted to seize its equipment at a time when the main case was pending in court. Justice Chatikobo granted an order for Capital Radio i.e. against the government and Moyo was not pleased. The police disregarded the High Court order which Moyo ridiculed on the grounds that it had been issued by a "night judge, in a night court" and that the result had merely been "night justice". There were no charges of contempt of court against Minister Moyo.
Letters to the Judiciary
But the matter did not end there. As the Zimbabwe Independent reported on 13th October 2000, Moyo was reported to have written to the then Judge President Justice Godfrey Chidyausiku registering "government’s disquiet over [the] High Court ruling in the Capital Radio saga". This resulted in the High Court instituting investigations into the conduct of Justice Chatikobo who had granted the interdict giving Capital Radio protection against a search by the police. Contrast this to when Tsvangirai is reported to have written to the High Court regarding the Roy Bennett matter. He was widely lambasted for interfering with the judiciary. To my mind both were wrong to write to the courts from their seats in the executive for it constitutes undue interference. There are proper channels that everyone must follow. Yet it would seem rather odd to any reasonable person the different reaction to both cases.
In any event, there was nothing irregular about what Justice Chatikobo had done – urgent relief ought to be given at any time of the day otherwise violators can take advantage to commit their acts and cause irreparable harm during those times when they think judges and the courts of law cannot hear matters. Justice Chatikobo later resigned and went on to take up a judicial post in Botswana.
Chinotimba’s Invasion of the Supreme Court
In November 2000, war veterans’ leader, Joseph Chinotimba led a group that in an unprecedented act, invaded the Supreme Court building to start what was to become the effective purge of the judiciary, removing judges who were regarded as being unfavourable towards the Fast Track Land Reform Programme. Indeed, of all judges of the Supreme Court who were in office in March 2001, the one who has survived is Justice Wilson Sandura, who so often finds himself in the minority in major judgments. Those of us in the business of teaching the law often advise students of law to pay particular attention to some dissenting judgments often because they have more legal merit than the popular majority decision. I like to think Justice Sandura’s judgments are and will in future be a critical source of teaching and learning the law in Zimbabwe. History is kind to good legal reasoning. After their unprecedented act and accompanying threats against the judges, Chinotimba and his comrades were never charged with contempt of court.
"Polite and Nice" Request to Leave
After Chinotimba’s group threatened the Chief Justice, Justice Minister Chinamasa is reported to have advised him that the government would not be able to guarantee his safety. This lack of protection and apparent collusion between the war veterans and the executive arm of government threatening the integrity of the courts and safety of the judges forced him to retire in March 2001. One of the Supreme Court judges, Justice McNally is also quoted in the media as having said at the time, "I was told very politely and very nicely that I should go – take my leave and go, otherwise anything could happen. It was said very frankly that they didn’t want me to come to any harm". He was referring to a meeting he had with the Justice Minister Chinamasa during the upheavals.
Judge Devittee was one of the three High Court Judges appointed after the highly controversial 2000 parliamentary elections to preside over electoral cases brought before the court. He made a few decisions that upheld the opposition’s petitions. Chinotimba is quoted as having declared: "Devittee is a judge for opposition political parties. The way Gubbay went is the same way he is to go". Gubbay is the former Chief Justice whom, it was reported, Chinotimba and his colleagues had invaded and threatened at the Supreme Court in 2000 before he eventually departed in 2001. By June 2001, Judge Devittee had resigned from office. Needless to say Chinotimba was not charged with contempt of court.
Justice Blackie’s alleged "Kangaroo courts"
Sometime in 2000, Justice Minister Chinamasa was hauled before the High Court on charges of contempt of court. He did not turn up. Justice Blackie, then presiding, issued an order of sentencing Chinamasa to 3 months jail and $Z50,000 fine for contempt of court. The charges of contempt had arisen over comments regarding sentences against three Americans who had been found in possession of arms which punishment the Chinamasa thought was too light. He is quoted as having said at the time of sentencing that the six month jail sentences induced "a sense of shock and outrage in the minds of all right-thinking people … The leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe’s sovereign interests".
When he gave his judgment on the contempt charge Justice Blackie said that, "the statements made by Chinamasa were intended to bring Mr Justice Adam (who had issued the sentences) into disrepute as a judge and the administration of justice by the high court in this case into disrepute." Later, the sentence against Chinamasa was overturned by another judge but not long after, Justice Blackie was arrested and what followed was an ordeal that some believe was retribution for the sentence that he had earlier passed against the Minister.
There is some indication in this rubble that this at least shows that it is possible to hold one in contempt of court for scurrilous accusations against the courts especially by those in positions of executive authority and that they should exercise restraint in their public utterances. This applies to all leaders and parties. Yet one has to recall that even after Chinamasa’s conviction, the then Information Minister, Moyo did not relent. He is quoted as having remarked that the contempt of court judgment by Justice Blackie showed that the judge, "who has a history of kangaroo courts" had taken the matter into "a personal crusade and has done that in a manner that will erode public confidence in the justice system" and further that "There is no doubt that fair minded and law abiding citizens will see this judgement for what it is: outrageous, sinister, highly personalised crusade made by someone who should be packing his bags" (BBC: 2002).
No to Legal Technicalities
As long back as 1982, after a judgment against the government in a matter involving Yorke brothers, the then Prime Minister Robert Mugabe is recorded as having responded: "The government cannot allow the technicalities of the law to fetter its hands in what is a very clear task before it, to preserve law and order in the country…We shall therefore proceed as the government in the manner we feel is fitting…and some of the measures we shall take are measures which will be extra-legal." (The Herald, July 29th 1982) Defenders will no doubt find reasons to defend these statements citing arguments including preservation of national security and the politics of the day but so will defenders of Tsvangirai in present day politics.
"Merely Academic Judgement"
In 2004, when Judge Majuru then of the Administrative Court ruled in favour of the ANZ, publishers of the Daily News and when the order was later confirmed by Judge Nare, the then Minister of Information Moyo responded by saying that the judgment were merely academic and could not therefore be enforced. In an article on the undermining of the judiciary, journalist Blessing Zulu quotes Professor Welshman Ncube, then MDC Secretary General, as having said: "The ANZ case is the first clear and unambiguous refusal by the government to obey a court order. This time they cannot change the law to suit their needs. This is a clear attack on the judicial system." (Zulu: 2004) Needless to say no action was taken against the alleged offenders.
In summary, contempt of court by Zimbabwean politicians has a shamefully rich history. As long back as the late sixties, in the well-known of Madzimbamuto v Lardner-Burke, the Smith government had vowed not to obey the Privy Council judgement which was likely to rule against it. Indeed when the Privy Council judgment came, pliable judges effectively took the government side – except two, Judges Fieldsend and Dendy Young who resigned in protest. The culture of disobeying and undermining judicial authority where decisions were unfavourable to politicians seems to have been one of the more negative inheritances from that era. It is part of a culture that taints the greater political landscape. Few can raise their hands and claim them to be clean. They have been contemptuous in various ways but the difference is that most have got away with it because they wield greater political power.
Sober Minds and Sober Approach
Plainly, one could produce a whole volume of incidents in which members of the executive have conducted themselves in ways that are so contemptuous that they likely to jeopardise and often have endangered the independence of the judiciary. Chief Justice Chidyausiku issued a plea in his recent speech at the opening of the legal year calling on politicians not to interfere with the judiciary’s work. True enough politicians are human beings and they do get frustrated. In the frustration they may say things that upon further reflection they would rather not have said. It is probable that Tsvangirai made statements against the Supreme Court judges in a moment of frustration.
That is not to excuse his conduct. But one needs to tread carefully here, for as the various instances chronicled in this piece indicate, politicians on the other side of the political divide have no clean hands as far as this type of conduct is concerned. They have, in various instances issued similar, if not worse criticism against the courts and judges. This conduct caused many judges to leave office in the early part of the last decade. Whatever the justifications they may use for their actions, the fact remains that their conduct was no less contemptuous. Yet none of them faced the wrath of the law and the courts for such contempt – in the one significant case involving Chinamasa, it was quashed by another judge.
It is not right for politicians – ZANU PF, MDC or whomsoever to abuse the courts and judges yet it is also not right to apply the law selectively. The matter needs sober minds and sober politicians to raise their hands and clean up their act and for judges to maintain the integrity of their office by not only dispensing justice but as the old adage goes by be seen to be doing so.
Alex Magaisa is based at Kent Law School, University of Kent email@example.com or firstname.lastname@example.org