THE STATE OF JUDICIAL INDEPENDENCE IN ZIMBABWE

The state of judicial in Zimbabwe in the post-Mugabe era, which many hailed as a canaanian chapter for the constitutional democratic affairs of the country has attracted public attention, dissecting its role and obligatory contributions towards a Constitutional Democratic Zimbabwe. Zimbabwe is a beautiful African country located at the heart of the southern part of Africa, and a member of Southern Africa Development Community(SADC), with an estimated population of sixteen million citizens. The country gained its independence in 1980. It had its first constitution in 1980, the Zimbabwe 1980 Constitution that was replaced in 2013, by the Zimbabwe Constitution of 2013. Though, Zimbabwe has been established to be a constitutional democracy, it has not escaped controversy around its democracy, constitutionalism and the integrity of its judicial. A State functions through three organs, the Legislature, Executive and Judiciary. The judicial serves a central role within the national constitutional democratic framework, as interpreter of laws, and apply the Constitution, and all other applicable laws to ensure constitution supremacy within the founding conceptual grounds of constitutionalism, contextual understanding of the constitution, and guidance of the principle of 'constitution supremacy' to enable a robust, fair and just constitutional democracy.

Judicial is a powerful organ in a democracy, and a crucial determinant to the effectiveness of rule of law. Its independence is a prerequisite for every successful constitutional democracy, and a critical element in achieving its constitutionally mandated fundamental objectives, of an overseer in the execution of duties by other branches and entities of the State, to ensure compliance with constitution requirements for a better democratic nation building, as well as attainment of social justice through the promotion of rule law as prescribed by Constitution, that founded it. The basis to the success of this understanding lays in the nation's respect of judicial autonomy, and judicial use of the bequeathed powers that comes with autonomy, within the prescribed constitutional constraints, to effectively implement checks and balances, enforce transparency and accountability, separation of powers, and to ensure other underlying intra-conceptual terms, constitutional norms, values, and principles, are adhered to in manner demanded by the Constitution, as stated by  section 2(1) of the Zimbabwe Constitution of 2013, that explicitly says, a Constitution stands as the supreme law, and every law, practice, custom, or conduct inconsistent with it is invalid to the extent of the inconsistency.

Constitution' Guidance on the Independence of Judiciary:

In terms of the Zimbabwe Constitution of 2013, section 162, the Constitutional Court, is the highest court in the land, standing as a superior court as per section 166(1), with section 164(1) stating that all the courts are independent and subject only to the Constitution and the law which they must apply impartially, expeditiously and without fear, favour or prejudice. Section 164(2), further points out that the independence, impartiality and effectiveness of the courts are central to rule of law and democratic governance. However, these very democratically rich and constitutionally sensible provisions that seek to assert the independence of judicial and protect the ability of the judicial to apply rule of law impartially stand exposed to Section 180(1), hence vulnerable to the head of the executive's manipulation by virtue of its awarding of the final appointing powers on the sitting president, the power to appoint the Chief Justice, Deputy Chief Justice, the Judge President of the High Court and all other judges, though Section 180(2) provides formal preliminary conditions that have to be fulfilled before the appointment is undertaken. The power to appoint the Chief Justice, Deputy Chief Justice, Judge President and other Judges should have been awarded to a more transparent process of an 'Independent Panel' of 'Retired Justices' with provable record of acute judgments, on recommendation of the Judicial Service Commission(JSC), with the president's participation restricted to conditional removal within the realms of the statutory 'fit and proper' theory. This is with the aim to maintain separation of powers, exert  transparency, and secure autonomy, thus curbing chances of political maneuver or loopholes that will allow executive interference on judiciary independence for selfish reasons and political aggrandisement at expense of democratic ideals and justice.

Testimonial Events: 

In 2021, following the rushed Constitutional Amendment Bill No. 2, and in spite of public sentiments against the decision, President Mnangagwa used his prerogative power to extend the term-limit of the Chief Justice Luke Malaba, against the High Court judgment, and in contravention of Section 328(7) of the Constitution which prohibits any amendments of the Constitution extending term-limits extension from applying to incumbents. P Mandivengerei, Mnangagwa Extends Malaba’s Term By 5 More Years - NewZimbabwe.com > mentions that Zimbabwe's opposition was keen to see Malaba's back after the top judge has been accused of interfering with judgements deemed unfavourable to the interests of Zanu Pf establishment, and the Chief Justice presiding over the famous 2018 electoral challenge against Mnangagwa by the latter's main opponent Nelson Chamisa of MDC Alliance, who lost the case. Not only that, the judge presided over Mnangagwa's inauguration in 2017 after former President R Mugabe was toppled by military assisted coup in November, and characterised Malaba ascendance to the position of Chief Justice as having been a political strategy necessitated by Mnangagwa when he was the then Vice President, clearing chances of legal obstacles on his future political ambitions, with results of a compromised judiciary system surfacing now. The rot of a fish start from the head.

In 2022, Job Sikhala, an opposing voice, opposition politician and former legislator, was arrested for allegedly inciting public violence, and spent 595 days in pre-trial detention. Sikhala's detention was the responsibility of the State whose actions were made possible by court's decision to deny the accused bail application in contravention of Section 69(1), read together with Section 164(1), of the Constitution which enshrines the right of every person accused of an offence the right to a fair and public trial within a reasonable time, and the later requiring the judiciary to be independent but subject only to the law which they must apply impartially, expeditiously and without fear, favour or prejudice. Further, because the cause to the criminal charges emanated from actions perceived to contain political elements, the delay in the prosecution and failure by the courts to again comply with Section 165(1), witnessed in visible absence of judiciary actions showing justice being done, lack of efficiency and reasonable promptness; and instead of applying rule of law to safeguard human rights, and freedoms, the courts' perpetuation of their violations, invoked public belief of judiciary entanglement in 'lawfare politics,' hence instead of delivering justice to all, advances political goals that benefit certain political players. Reminiscent to the Job Sikhala scenario, is the Jameson Timba case. Again, an opposition interim leader of the time, was arrested on 16 June 2024, together with 80 youth for holding unauthorised political gathering. They were detained, denied bail and spent 5 months in pre-trial detention, only to be acquitted of the charges.

Elements of Bias:

In 2020, Drax International LLC, represented by Dylish Nguwaya was awarded a US$60 million tender to supply covid equipment to combat Covid-19 virus leading to the expulsion of Health minister Obadiah Moyo, who later was acquitted without suffering prolonged detention. Accomplices to the crime as well, were speedily removed from remand on the basis that the State failed to provide a trial date within a reasonable time. In the Prisca Mupfumira case, the former minister was found not guilty and acquitted of the charges, while enjoying her freedom after being granted bail on her first court appearance. This seem to suggest judiciary soft approach towards criminally charged individuals aligned with the ruling Zanu PF party, whilst the same judiciary in numerous occasions applied hard approach on political-related cases involving members of the opposition or cases considered in condemnation of high ranking corruption shenanigans by public representatives of the Zanu PF government. Example to such is Blessed Mhlanga, a journalist recently arrested and charged with transmission of data with intent to incite public violence or damage to property. A charge he denied citing the demands of his occupation as the reason behind his publication of the information, the State allege was intended to cause violence or damage to property. In spite of constitutional requirements, the judiciary used its discretion to deny a mere journalist his right to a fair trial, that includes bail on three consecutive applications on the basis that his release on bail maybe give the accused opportunity to interact and influence his subordinates to the jeopardy of investigations, and has potential to cause public violence. On a fair constitutional rationale the 'perceived potential to influence or cause on release' should not outweigh the 'detrimental effects of the decision not to release,' as the accused is a not a politician but a journalist with no political influence. In justifying its decision the court used the objective measure to arrive at the conclusion of the potential to cause public violence for a bail to be granted, whilst overlooking the subjective test on the prejudice caused to the accused by denying the same accused bail. From a constitutionally substantiated political angle, it is logical to believe that, since the information transmitted by Blessed Mhlanga, in his capacity as journalist, was condemning the ruling party, its president and corruption activities associated with it, the judiciary saw it legally unviable, but politically justifiable to override the constitutional requirements in fear of political repercussions in making a decision unfavourable to the ruling Zanu PF status quo. In the same effort, further casting public doubt on the independence of the courts.

Meaningful Judicial Independence:

Zimbabwe endured nearly four decades of misrule under Robert Mugabe, and to date, the country is struggling to find its democratic footing. The political chaos and misgovernance, primarily a result of political centralism, the concentration of power on national affairs in the hands of the 'executive arm' commanded by authoritarian and centralistic-minded, Robert Gabriel Mugabe. The former president Robert Gabriel Mugabe's political ideological leaning and preference was one-party-system of governance against the multiparty constitutional democracy, and was openly intolerant to opposition and opposing views. Mugabe's tenure in office was marred by redundant constitutionalism, and submission of all arms of State under his authoritarian control, therefore the concept of separation of powers, transparency and accountability, and judicial independence integral to democracy was not only crippled, but became not just a fantasy, but an antithesis concepts, pragmatically inapplicable in Zimbabwe's governance system. All organs of State either directly or indirectly follows executive directives approved by the presidency headed by the president, and the desire for judiciary capture increased. That, transformed courts into political warehouses of electoral fraud approval whenever election results are disputed, for the endorsement of governing power mandated during electoral contestation, thus legitimatizing fraudulent outcomes. This has necessitated the continuation of medieval practices of habitual absolutism and political correctness, instead of modern-day democracy even under the presidency of Emmerson Dambudzo Mnangagwa. A situation equivalent to the 1793 French Reign of Terror, absolutely intolerant to public liberty, clouded by constant blatant violations of the constitution without remorse, its amendment to suit political needs of the incumbent, willy-nilly illegal jailing of opposition members, application of lawfare tactics, intolerance to opposition, corruption, arrest and intimidation tactics against journalists, selective application of rule of law and impunity levels among the members of the Zanu PF establishment and its associated elites. All bureaucratic tendencies alien to constitutional democracy, and bereft of social services to the suffering Zimbabwean people, and rule of law.

Zimbabwe requires an independent judicial that controls the arbitrary use of power, acts as a neutral arbiter of politics, confirms the legality of executive actions, and ensures the legislature conforms with the constitution. S Tembo, A Singh, 'Mutilation of the Independence of the Judiciary: Threats, Intimidation and Constitutional Amendments in Zimbabwe' > explains that an independent judiciary serves as an effective mechanism that controls and constrains the operation and power of the legislature and executive, and the word independence in context of individual judge is that a person is independent if is able to take actions without fear of interference by another; therefore judicial independence is the idea that a judge ought to be free to decide the case before her without fear or anticipation of (illegitimate) punishments or rewards.

Conclusion:

Independent Judicial is a prerequisite to every successful Constitutional Democracy, and a remedy Zimbabwe currently needs.

.......................................................................................................................................................P Dekeya