Mugabe Moulds Pliant Judiciary
Many judges who’ve tried to maintain their independence are being forced into exile.
Mugabe Moulds Pliant Judiciary
Many judges who’ve tried to maintain their independence are being forced into exile.
Judges in Zimbabwe, fearing for their lives and of infringement of their few remaining liberties by the state, are choosing more and more to play ball with an increasingly oppressive government, according to Zimbabwean lawyers.
As the result of an onslaught of intimidation, combined with unashamed bribery by the government through the allocation to judges of stolen farms, Zimbabwe now has a corrupt judiciary, pliant to the will of President Robert Mugabe. Judges who have refused to toe the line have been arrested, attacked and toppled. Many have gone into exile.
"What we have seen is a politicisation of the judiciary," said Gugulethu Moyo, a lawyer who fled Zimbabwe and now works for the International Bar Association in London. And Mugabe himself has made clear his contempt for independent judges, stating on national television, "The judiciary has no constitutional right whatsoever to give instructions to the President on any matter."
Advocate Eric Matinenga, one of Zimbabwe's most prominent lawyers, told IWPR, "The situation for judges in this country is that you either play ball [with the government] or you get out of the system."
Matinenga said all the judges who tried to maintain their independence have fled the country, unwilling to tolerate further the harassment they were subjected to by various organs of the state as a result of handing down impartial rulings.
Matinenga, recently appointed president of the disciplinary tribunal of the opposition Movement for Democratic Change, MDC, knew intimately most of the many judges who have gone into exile and knows those who have stayed. He said many of those who quit Zimbabwe received threatening calls in the middle of important trials, warning them to give judgments favourable to the state or be declared an enemy of that same state.
He said remaining judges continued to receive such calls, but were now also being bribed with offers of farms confiscated since 2000 by former white owners - and most judges were happily accepting the government offers. At international legal conferences, Matinenga has explained how nearly every remaining working judge in Zimbabwe has accepted farms taken by Mugabe from commercial farmers, thus making them morally incapable of ruling in land claim cases.
"I am saddened by it," said Matinenga. "If I have a case with a political connotation, I am no longer in a position to advise a client. There was a time when you could predict an outcome of a case and say: in the light of this or that precedent, in Zimbabwe or outside, you could expect this result.
"On constitutional matters, it is now very rare that you get a ruling against the state. There is always a split, a lone judge ruling against the state versus a majority for the state. It is sad when I read these judgments. I ask myself if there is possibly something I am not seeing."
Blatant intimidation and harassment of the judiciary began in 2000 following several important rulings against President Mugabe's ruling ZANU PF government. Judges were threatened with violence at a time when ZANU PF faced the gravest ever threat to its hegemony because of the rapidly rising popularity of the MDC across the country.
In March 2001, the chief justice, Anthony Gubbay, was forced to resign because of death threats after presiding over a decision by the Supreme Court that Mugabe's seizing of white-owned farmland without the payment of compensation was unconstitutional.
Gubbay's court chambers were invaded by some two hundred "war veterans" loyal to Mugabe who chanted "Kill the judges". The war vets were led by a security guard, Joseph Chinotomba, accused of attempting to murder an MDC activist Anna Maenzanise, a charge that was later withdrawn.
Justice Minister Patrick Chinamasa warned Gubbay, who was subjected to a barrage of racist and anti-semitic abuse in relation to his Jewishness, that he could not guarantee his safety should he decide to stay in office. Gubbay was succeeded by a low-level judge, Godfrey Chidyausiku, a Mugabe loyalist from the president's own Zezuru clan, part of the larger Shona ethnic group.
Under Chidyausiku, the Supreme Court declared the farm seizures constitutional and the new chief justice was rewarded by Mugabe with the gift of a 900-hectare farm, Estees Park, north of Harare, newly confiscated from its white owner.
Chidyausiku, who appointed two close relatives as judges to help him, has brought ever-increasing pressure on the judiciary to ensure that they conform to Mugabe's decrees. One of the Mugabe loyalists, Luke Malaba, appointed as a new judge by Chidyausiku, broke into the offices of a senior lawyer representing dispossessed farmers and publicly accused the lawyer of "regurgitating personal attacks" on Chidyausiku.
Chains of resignations by judges followed, first by white judges, who were subjected to racist attacks, and then by black and Asian judges who refused to surrender their independence or to accept the bribe of a newly seized farm.
Judge Michael Gillespie resigned from the High Court and went into exile shortly after Gubbay was forced to step down. Gillespie said the Mugabe government constantly defied court orders, supported threats against judges by war vets and constantly attacked Supreme Court and High Court judges who showed some degree of independence.
"I cannot sit as an effective and independent member of this Bench," said Gillespie. "The Executive has contrived to politicise the Bench. A judge, finally, who finds himself in the position where he is called upon to administer the law only as against political opponents of the government, and not against government supporters, faces the challenge to his conscience."
Ishmael Chatikobo, a non-white High Court judge, also went into exile soon after Gubbay's resignation. Chatikobo angered Mugabe when he ordered police to halt raids on a private radio station. The day after, Mugabe issued a presidential decree banning the radio station and another that were almost the sole sources of information for the rural poor - more than 70 per cent of the population - ahead of a presidential election.
Chatikobo had also issued an order granting BBC correspondent Joseph Winter the right to stay in the country after his work permit was cancelled by Mugabe's information minister Jonathan Moyo. Despite Chatikobo's ruling, Winter was expelled. Moyo said the judge's ruling did not apply to the government.
Judge Sandra Mungwira went into exile after she was harassed by the Central Intelligence Organisation, CIO, following a major trial of three leading MDC activists for the murder of war vet Cain Nkala.
In a sensational but complex case, Nkala had earlier been charged with abducting and murdering a veteran opposition leader in Bulawayo. But, under further interrogation, Nkala said he had only kidnapped the man on the orders of an unidentified senior Zimbabwe cabinet minister, to whom the victim was handed alive.
Retribution came fast. Nkala was himself kidnapped by eight men bearing AK 47 rifles and a week later police announced that he had been found strangled, in a shallow grave, outside Bulawayo. The man Nkala was alleged to have killed "disappeared" and has never been found.
The police now arrested the three MDC activists and charged them with Nkala's murder. Under torture, all three, including MDC national treasurer Fletcher Dulini-Ncube, signed confessions admitting that they murdered Nkala. Dulini-Ncube lost an eye under torture.
Mugabe badly needed a conviction of the three MDC accused in an attempt to damage permanently the opposition's reputation. He came up against an unforeseen obstacle – an honest judge.
Sandra Mungwira said all fourteen policemen involved in the investigation and interrogation of the MDC accused "spewed forth untruths"; their records were "an appalling piece of fiction"; and they had conducted themselves in a "shameless fashion" by torturing Dulini-Ncube and his fellow accused.
She acquitted all the accused and, with great courage, pointed directly to a government "third force" as the agent of Nkala's murder through a group of senior army, police and CIO officers.
Judge Mungwira quit soon afterwards and went into exile in Scotland, where she died of cancer last year.
Judges Ahmed Ibrahim, James Devittie and Nick McNally went into exile after receiving violent threats when they accused the government of undermining the judiciary.
The government turned to putting judges who had displeased it on trial.
In June 2002, retired judge Fergus Blackie was arrested, held in police cells in handcuffs, denied food and paraded in public in an open-back truck. He was accused of obstructing the course of justice by failing to confer with another judge before quashing on appeal the conviction for theft of a white woman. The charges against Blackie were subsequently dropped.
Blackie's arrest was seen as a clear act of government revenge for a three-month prison sentence he had imposed, shortly before he retired on Chinamasa. Chinamasa had failed to appear in Blackie's court to explain his public criticisms of the High Court and its judges. Blackie sentenced the justice minister to three months imprisonment for contempt of court. The sentence was ignored and Blackie was accused, in turn, of "gross abuse of judicial office."
Then in May this year, Judge Benjamin Paradza turned up in New Zealand. He’d fled Zimbabwe after being sentenced to three-years imprisonment on charges of corruption and obstructing the course of justice. Paradza - a hero of the liberation struggle against white minority rule - was appointed by Mugabe to the Bench in 2000, but his subsequent independent judgments infuriated the head of state who had expected yet another compliant judge who would serve the government's political ends by either ignoring or bending the law.
The United Nations, Amnesty International, the International Commission of Jurists, the International Bar Association and other international organisations all condemned the charges against Paradza as trumped-up.
One of the charges made against Paradza was that he had tried to influence three fellow judges to release the passport of a man then awaiting trial on a murder charge. Russell Labuscagne, a business partner of Paradza, was recently tried and found guilty of murdering a poacher on his safari property and has begun a 15-year jail sentence. Paradza denied all the charges made against him, and the United Nations' rapporteur on human rights has said the judge was in reality being punished for judgments that were "unpalatable to the government".
Matinenga, who represented Paradza, said his client had made a gross error of judgment in his comments to fellow judges about Labuscagne. But he said he felt there had been entrapment because Paradza's comments had been secretly recorded by pro-Mugabe judges. "I still don't believe he did it with criminal intent," said Matinenga.
One Paradza judgment that is said to have particularly infuriated Mugabe was an order he gave to police in January 2003 to release from custody the elected mayor of Harare, Elias Mudzuri, a prominent member of the MDC. Mudzuri and 21 other MDC members had been arrested at a ratepayers' meeting under a provision of the draconian Public Order and Security Act, POSA, requiring that police permission be obtained for any gathering of more than two people.
Paradza also overturned a government order evicting 54 white Zimbabwean farmers from their farms. He further ordered the government to issue a passport to Judith Todd, a veteran human rights and democracy opponent of the colonial-era Ian Smith government, after Mugabe stripped her of Zimbabwean citizenship. Todd had proved to be as strident a critic of Mugabe's human rights abuses as she was of Smith's.
Justice Moses Chinhengo, who had ordered police to stop torturing detained suspects, resigned in disgust at Paradza's sentence and went into exile in Botswana, where he is now a senior judge.
Mugabe now has a totally compliant Bench, which causes him no problems. Among serving judges to receive farms recently are Tendai Bunhu, who claimed a Danish-owned dairy farm near Harare for himself and High Court judge Annie-Marie Gowora, who took over Helensvale Farm in the Makoni district of the eastern province of Manicaland after the former white owner, Peter Purcell-Gilpin, was forced to vacate his property. Maphios Cheda, a Mugabe loyalist who is the scourge of Zimbabwe's beleaguered human rights organisations, has been allocated a farm known as "Malaba".
The second highest judge in the land, Judge-President Paddington Garwe, acquired Mount Lothian, in the fertile wheat and tobacco Enterprise belt east of Harare. It was owned by Christopher Tracey, one of the first white farmers to embrace Zimbabwe's independence from Britain in 1980. Tracey arranged the key international aid and investment donor conference after independence and was highly praised by Mugabe.
"These farms have not come [to the judges] as written perks in their contracts of employment," said Arnold Tsunga, executive director of Zimbabwe Lawyers for Human Rights, an organisation which has taken the Mugabe government to the African Commission on Human and Peoples' Rights, accusing it of violating human rights and undermining the rule of law and the judiciary. "Institutionally, they are compromised because the general operating environment is providing them with serious challenges. Judges are given political cases to handle by politicians bent on settling personal scores."
Hativagone Mushonga is the pseudonym of an IWPR contributor in Zimbabwe.
As the result of an onslaught of intimidation, combined with unashamed bribery by the government through the allocation to judges of stolen farms, Zimbabwe now has a corrupt judiciary, pliant to the will of President Robert Mugabe. Judges who have refused to toe the line have been arrested, attacked and toppled. Many have gone into exile.
"What we have seen is a politicisation of the judiciary," said Gugulethu Moyo, a lawyer who fled Zimbabwe and now works for the International Bar Association in London. And Mugabe himself has made clear his contempt for independent judges, stating on national television, "The judiciary has no constitutional right whatsoever to give instructions to the President on any matter."
Advocate Eric Matinenga, one of Zimbabwe's most prominent lawyers, told IWPR, "The situation for judges in this country is that you either play ball [with the government] or you get out of the system."
Matinenga said all the judges who tried to maintain their independence have fled the country, unwilling to tolerate further the harassment they were subjected to by various organs of the state as a result of handing down impartial rulings.
Matinenga, recently appointed president of the disciplinary tribunal of the opposition Movement for Democratic Change, MDC, knew intimately most of the many judges who have gone into exile and knows those who have stayed. He said many of those who quit Zimbabwe received threatening calls in the middle of important trials, warning them to give judgments favourable to the state or be declared an enemy of that same state.
He said remaining judges continued to receive such calls, but were now also being bribed with offers of farms confiscated since 2000 by former white owners - and most judges were happily accepting the government offers. At international legal conferences, Matinenga has explained how nearly every remaining working judge in Zimbabwe has accepted farms taken by Mugabe from commercial farmers, thus making them morally incapable of ruling in land claim cases.
"I am saddened by it," said Matinenga. "If I have a case with a political connotation, I am no longer in a position to advise a client. There was a time when you could predict an outcome of a case and say: in the light of this or that precedent, in Zimbabwe or outside, you could expect this result.
"On constitutional matters, it is now very rare that you get a ruling against the state. There is always a split, a lone judge ruling against the state versus a majority for the state. It is sad when I read these judgments. I ask myself if there is possibly something I am not seeing."
Blatant intimidation and harassment of the judiciary began in 2000 following several important rulings against President Mugabe's ruling ZANU PF government. Judges were threatened with violence at a time when ZANU PF faced the gravest ever threat to its hegemony because of the rapidly rising popularity of the MDC across the country.
In March 2001, the chief justice, Anthony Gubbay, was forced to resign because of death threats after presiding over a decision by the Supreme Court that Mugabe's seizing of white-owned farmland without the payment of compensation was unconstitutional.
Gubbay's court chambers were invaded by some two hundred "war veterans" loyal to Mugabe who chanted "Kill the judges". The war vets were led by a security guard, Joseph Chinotomba, accused of attempting to murder an MDC activist Anna Maenzanise, a charge that was later withdrawn.
Justice Minister Patrick Chinamasa warned Gubbay, who was subjected to a barrage of racist and anti-semitic abuse in relation to his Jewishness, that he could not guarantee his safety should he decide to stay in office. Gubbay was succeeded by a low-level judge, Godfrey Chidyausiku, a Mugabe loyalist from the president's own Zezuru clan, part of the larger Shona ethnic group.
Under Chidyausiku, the Supreme Court declared the farm seizures constitutional and the new chief justice was rewarded by Mugabe with the gift of a 900-hectare farm, Estees Park, north of Harare, newly confiscated from its white owner.
Chidyausiku, who appointed two close relatives as judges to help him, has brought ever-increasing pressure on the judiciary to ensure that they conform to Mugabe's decrees. One of the Mugabe loyalists, Luke Malaba, appointed as a new judge by Chidyausiku, broke into the offices of a senior lawyer representing dispossessed farmers and publicly accused the lawyer of "regurgitating personal attacks" on Chidyausiku.
Chains of resignations by judges followed, first by white judges, who were subjected to racist attacks, and then by black and Asian judges who refused to surrender their independence or to accept the bribe of a newly seized farm.
Judge Michael Gillespie resigned from the High Court and went into exile shortly after Gubbay was forced to step down. Gillespie said the Mugabe government constantly defied court orders, supported threats against judges by war vets and constantly attacked Supreme Court and High Court judges who showed some degree of independence.
"I cannot sit as an effective and independent member of this Bench," said Gillespie. "The Executive has contrived to politicise the Bench. A judge, finally, who finds himself in the position where he is called upon to administer the law only as against political opponents of the government, and not against government supporters, faces the challenge to his conscience."
Ishmael Chatikobo, a non-white High Court judge, also went into exile soon after Gubbay's resignation. Chatikobo angered Mugabe when he ordered police to halt raids on a private radio station. The day after, Mugabe issued a presidential decree banning the radio station and another that were almost the sole sources of information for the rural poor - more than 70 per cent of the population - ahead of a presidential election.
Chatikobo had also issued an order granting BBC correspondent Joseph Winter the right to stay in the country after his work permit was cancelled by Mugabe's information minister Jonathan Moyo. Despite Chatikobo's ruling, Winter was expelled. Moyo said the judge's ruling did not apply to the government.
Judge Sandra Mungwira went into exile after she was harassed by the Central Intelligence Organisation, CIO, following a major trial of three leading MDC activists for the murder of war vet Cain Nkala.
In a sensational but complex case, Nkala had earlier been charged with abducting and murdering a veteran opposition leader in Bulawayo. But, under further interrogation, Nkala said he had only kidnapped the man on the orders of an unidentified senior Zimbabwe cabinet minister, to whom the victim was handed alive.
Retribution came fast. Nkala was himself kidnapped by eight men bearing AK 47 rifles and a week later police announced that he had been found strangled, in a shallow grave, outside Bulawayo. The man Nkala was alleged to have killed "disappeared" and has never been found.
The police now arrested the three MDC activists and charged them with Nkala's murder. Under torture, all three, including MDC national treasurer Fletcher Dulini-Ncube, signed confessions admitting that they murdered Nkala. Dulini-Ncube lost an eye under torture.
Mugabe badly needed a conviction of the three MDC accused in an attempt to damage permanently the opposition's reputation. He came up against an unforeseen obstacle – an honest judge.
Sandra Mungwira said all fourteen policemen involved in the investigation and interrogation of the MDC accused "spewed forth untruths"; their records were "an appalling piece of fiction"; and they had conducted themselves in a "shameless fashion" by torturing Dulini-Ncube and his fellow accused.
She acquitted all the accused and, with great courage, pointed directly to a government "third force" as the agent of Nkala's murder through a group of senior army, police and CIO officers.
Judge Mungwira quit soon afterwards and went into exile in Scotland, where she died of cancer last year.
Judges Ahmed Ibrahim, James Devittie and Nick McNally went into exile after receiving violent threats when they accused the government of undermining the judiciary.
The government turned to putting judges who had displeased it on trial.
In June 2002, retired judge Fergus Blackie was arrested, held in police cells in handcuffs, denied food and paraded in public in an open-back truck. He was accused of obstructing the course of justice by failing to confer with another judge before quashing on appeal the conviction for theft of a white woman. The charges against Blackie were subsequently dropped.
Blackie's arrest was seen as a clear act of government revenge for a three-month prison sentence he had imposed, shortly before he retired on Chinamasa. Chinamasa had failed to appear in Blackie's court to explain his public criticisms of the High Court and its judges. Blackie sentenced the justice minister to three months imprisonment for contempt of court. The sentence was ignored and Blackie was accused, in turn, of "gross abuse of judicial office."
Then in May this year, Judge Benjamin Paradza turned up in New Zealand. He’d fled Zimbabwe after being sentenced to three-years imprisonment on charges of corruption and obstructing the course of justice. Paradza - a hero of the liberation struggle against white minority rule - was appointed by Mugabe to the Bench in 2000, but his subsequent independent judgments infuriated the head of state who had expected yet another compliant judge who would serve the government's political ends by either ignoring or bending the law.
The United Nations, Amnesty International, the International Commission of Jurists, the International Bar Association and other international organisations all condemned the charges against Paradza as trumped-up.
One of the charges made against Paradza was that he had tried to influence three fellow judges to release the passport of a man then awaiting trial on a murder charge. Russell Labuscagne, a business partner of Paradza, was recently tried and found guilty of murdering a poacher on his safari property and has begun a 15-year jail sentence. Paradza denied all the charges made against him, and the United Nations' rapporteur on human rights has said the judge was in reality being punished for judgments that were "unpalatable to the government".
Matinenga, who represented Paradza, said his client had made a gross error of judgment in his comments to fellow judges about Labuscagne. But he said he felt there had been entrapment because Paradza's comments had been secretly recorded by pro-Mugabe judges. "I still don't believe he did it with criminal intent," said Matinenga.
One Paradza judgment that is said to have particularly infuriated Mugabe was an order he gave to police in January 2003 to release from custody the elected mayor of Harare, Elias Mudzuri, a prominent member of the MDC. Mudzuri and 21 other MDC members had been arrested at a ratepayers' meeting under a provision of the draconian Public Order and Security Act, POSA, requiring that police permission be obtained for any gathering of more than two people.
Paradza also overturned a government order evicting 54 white Zimbabwean farmers from their farms. He further ordered the government to issue a passport to Judith Todd, a veteran human rights and democracy opponent of the colonial-era Ian Smith government, after Mugabe stripped her of Zimbabwean citizenship. Todd had proved to be as strident a critic of Mugabe's human rights abuses as she was of Smith's.
Justice Moses Chinhengo, who had ordered police to stop torturing detained suspects, resigned in disgust at Paradza's sentence and went into exile in Botswana, where he is now a senior judge.
Mugabe now has a totally compliant Bench, which causes him no problems. Among serving judges to receive farms recently are Tendai Bunhu, who claimed a Danish-owned dairy farm near Harare for himself and High Court judge Annie-Marie Gowora, who took over Helensvale Farm in the Makoni district of the eastern province of Manicaland after the former white owner, Peter Purcell-Gilpin, was forced to vacate his property. Maphios Cheda, a Mugabe loyalist who is the scourge of Zimbabwe's beleaguered human rights organisations, has been allocated a farm known as "Malaba".
The second highest judge in the land, Judge-President Paddington Garwe, acquired Mount Lothian, in the fertile wheat and tobacco Enterprise belt east of Harare. It was owned by Christopher Tracey, one of the first white farmers to embrace Zimbabwe's independence from Britain in 1980. Tracey arranged the key international aid and investment donor conference after independence and was highly praised by Mugabe.
"These farms have not come [to the judges] as written perks in their contracts of employment," said Arnold Tsunga, executive director of Zimbabwe Lawyers for Human Rights, an organisation which has taken the Mugabe government to the African Commission on Human and Peoples' Rights, accusing it of violating human rights and undermining the rule of law and the judiciary. "Institutionally, they are compromised because the general operating environment is providing them with serious challenges. Judges are given political cases to handle by politicians bent on settling personal scores."
Hativagone Mushonga is the pseudonym of an IWPR contributor in Zimbabwe.
