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Published On: Mon, Mar 9th, 2015

When puppet judges refuse to dance…

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By Taona Moto

“Indeed, even justice administered under a tree recognises that a man be heard in his own defence before judgment is passed against him.” Sobering words of wisdom, they sound. Only that then Judge President Justice Godfrey Chidyausiku chose to use them in January 2001 when he—in an unprecedented move—savagely attacked a Supreme Court ruling by his then boss, Chief Justice Anthony Gubbay, on farm invasions.

Here Chidyausiku gave the impression that he was someone who understood justice in both its legal and moral senses. But what he was doing was something unheard of in the history of the judiciary, and with the benefit of hindsight, we now know that this was a typical case of a little rude schoolboy that had been sent to provoke people by some bully big brother who was itching to beat someone up.

As we now know, a few months after dressing his boss down, Chidyausiku was duly rewarded when President Robert Mugabe appointed him as Gubbay’s replacement, never mind a deafening outcry over his suitability.

If what Mugabe was to tell mourners at the funeral of Chidyausiku’s mother, Hellen, in July 2002 is something to go by, those who swear that the two are not too-distant relatives could be right after all. Which possibly explains the mystery of how, despite the strident protests by his colleagues in the legal fraternity, Chidyausiku—then a junior judge by both experience and hierarchy—went on to be appointed the country’s Chief Justice. At the time Chidyausiku was not even a member of the Supreme Court, but merely Judge President at the High Court level, so he had to leapfrog over four other senior and more experienced judges to be the country’s top-most judge.

If the argument was about indigenizing the judiciary, there were already two senior black judges on the Supreme Court bench, namely Justice Wilson Sandura and Justice Simbarashe Muchechetere. Only nepotism could explain his appointment.

When he opened the 2015 legal year, Chidyausiku—now in his 14th year as Zimbabwe’s Chief Justice—took the opportunity to embarrass his subordinates by telling all and sundry that a majority of the High Court judges in Harare were proving to be so lazy and incompetent that one of them delivered only two judgments during the whole of the 2014 legal year.

The accused judges—21 out of the 24 who sit on the High Court bench—did not take it lying.

The judges issued a joint statement in which they accused the Chief Justice of not just misleading the public, but also of acting in bad faith.

“With all due respect, the Honourable Chief Justice’s speech was highly misleading,” the judges pointed out in the emotionally-charged statement.

“In some respects it contained inaccurate and damaging analyses, impressions and conclusions, particularly with regards to the performance of the High Court in general and that of the individual judges, both named and unnamed,” the judges said.

“The judges are feeling humiliated, dejected and despondent. They feel they have lost their dignity in the eyes of the public. The morale is very low, especially given that the depressing issue of unfulfilled conditions of service was practically a footnote in the Chief Justice’s speech.

“In view of the public’s reaction to the speech, it is felt that there is now a compelling need to set the record straight by placing all the relevant statistics and information in the public domain so that the performance of the High Court can properly be judged.”

But Chidyausiku would not budge. He responded to the judges by announcing that he would be summoning each one of these “lazy” judges for them to show cause why they should continue sitting on the bench.

In a statement, Judicial Service Commission secretary Justice Rita Makarau, on behalf of Chidyausiku, said all judges who underperformed in the 2014 legal year would be summoned one by one to explain their failure to deliver to expectation.

“The Chief Justice maintains his position that there will be no end to the fight between him and the underperforming judges unless they improve,” the statement said.

“Underperforming judges will soon be summoned by the Chief Justice to explain the cause of the underperformance. In future the Chief Justice will report all underperforming judges to the Judicial Service Commission for the procedures set out in Section 187 of the Constitution to unfold,” the statement added.

If indeed he had good intentions—not to harangue the judges into kowtowing to a certain line—it is not clear why Chidyausiku (whose views on justice and morality open this article) chose to affirm his superiority by hectoring his underlings before he had even had the courtesy to talk to them individually to find out if they were having any problems or challenges that could be affecting the performance of their duties, as he would be doing now. Unless there is something that he knows that is not already in the public domain.

One can only imagine what these “lazy” judges will go through when they are individually summoned to Chidyausiku’s chambers (obviously in the presence of their no nonsense war veteran immediate boss Judge President Justice George Chiweshe).

Chidyausiku’s frustrations are entirely understandable. There is nothing as frustrating to a puppeteer as a puppet that suddenly refuses to dance!

But what could be causing the majority of the supposed honourable judges to develop such a negative attitude towards their professional duties?

There are two basic reasons. Either morale is rock-bottom (from political interference, nepotism, threats etc) or those who were given the jobs are simply competent. In this case, it is most likely a deadly combination of both.

Does anyone needs to reminded Chidyausiku that not only were most of these judges hired unprofessionally, but himself as well, which makes all of them puppet judges hired for a political judicial show?

So would expecting any professionalism from these men and women not be just expecting too much? And isn’t it hypocrisy for Chidyausiku to pretend to be concerned with the performance (in fact lack of it) of judges?

It is like a young man, who against wild protests of his family members, stubbornly proceeds to marry a woman his grandmother’s age, then comes back two years later crying that his dear wife cannot bear him children!

While it might be convenient for Chidyausiku to feign a short memory, the reality on the ground is that there is a crop of judges who have a very low opinion of their bosses…whose who think they are better qualified than their superiors—which in some cases they really are! —but who are been routinely by-passed for their stubborn lack of pliancy towards repeated wire-pullings by political forces. These have a very good reason to drag their feet… just to spite these political handlers. These should take threats from their angry handlers very, very serious. There was a general suspicion in the legal community that the “good riddance” death of Justice Simbarashe Muchechetere in December 2001, though blamed on malaria, coming as it did right in the middle of the purges of the judiciary, might not have been entirely natural.

There were reports of a number of well-respected lawyers who have been turning down invitations to join the bench since the purge of the judiciary started. This is not unexpected especially in view of the way senior and experiences lawyers like Sandura, Muchechetere and others were treated.

No self-respecting lawyer would agree to join a bench whose independence or integrity is questionable, unless their own stature is also questionable. Moreso when they are invited to join that bench through the back door and are to be sworn in under the fog of confusion.

Surely a competent lawyer should be able to turn down an invitation to the bench if they see that that appointment is being down outside the law. Sadly, not all those who have been approached think this way.

This naturally opened opportunities for pretenders—mostly borderline lawyers who only came into the limelight as lawyers in ZANU PF’s elections petition cases—to rush in to take up post for which there are not qualified.

But sooner, rather than later, the crucible of the bench puts one’s commitment to test and pretenders being pretenders, they naturally fail this rigorous test.

Frustration naturally comes in, and performance is the first casualty.

As the sages say, the grass appears greener on the other side of the fence… before these chancers have stopped pinching themselves to confirm that indeed they are now judges, they would have started regretting … moreso with indications (also hinted in the judges’ statement) that the job is largely a form of community service as some of the listed conditions of services are never fulfilled. Zimbabwe should be the only country where judges are cheated!

So all the enthusiasm soon dies, but sadly in this case, it is never buried. As Chidyausiku and his political masters are discovering now, anything that dies and does not get buried soon becomes a serious problem to the living.

Most of the judges should be regretting joining the bench in the first place. It was bad enough when it was just a thankless job that they just had to do, but now they have to do it with an axe hanging over their heads. One wonders if this is a situation that even Gabriel, the archangel, can handle.

President Mugabe made a flurry of judicial appointments to the High, Labour, Administrative and the Supreme Court benches just before the 2013 harmonised elections without consulting his main coalition partner, then Prime Minister Morgan Tsvangirai, as required by the constitution. Mugabe handpicked the individuals without any meaningful input from the compromised Judicial Services Commission (JSC) also as required by the law. It was observed that these pre-election appointments were rushed to by-pass provisions in the new constitution which demand that the process be initiated and controlled by the JSC and done through public interviews, with the president only coming in to endorse the candidates.

The coming of Chidyausiku to the helm was the beginning of systematic and sustained efforts by Mugabe and his ZANU PF party to subvert the judiciary for their own ends.

Anyone who has read Justice Enjoined, a report published by the Robert F. Kennedy Memorial Centre for Human Rights in 1992 on the sorry state of the judiciary in Kenya will see how Mugabe and his ZANU PF party seem to have adopted, warts and all, the behaviour of President Daniel Arup Moi’s KANU party in its final years in power.

The result of this strategy is a travesty of a judiciary, a judiciary that exists—first and foremost—to serve the political and economic interests of the executive and the ruling elite.

This vicious campaign was spearheaded by former Justice minister Patrick Chinamasa, who himself was running away facing a contempt of court charge for insulting Justice Fergus Blackie on his ruling on American citizens charged with illegal arms possession.

He was ably assisted by the then newly appointed Information minister Jonathan Moyo who was desperate to prove in a practical way that he indeed had something to offer to the same ZANU PF government, caustic criticism of which he had built a robust career.

Joseph Chinotimba provided the much-needed shock troopers in the form of war veterans with whom he invaded the Supreme Court and danced on top of desks and went on to camp there to make sure that Justice Gubbay was gone. At the time Chinotimba was also facing attempted murder charges for shooting his neighbour in Glen Norah for being a member of the opposition MDC.

Also on this anti-Gubbay crusade was (now) minister Christopher Mushowe who needed to demonstrate in Parliament that he could out-do his predecessors, the likes of the late Herbert Ushewokunze, Enos Nkala or Maurice Nyagumbo, in the art of hate speech.

Under a permanent siege from the quartet—with Chinamasa telling Gubbay that the State could no longer guarantee his security and that of the other judges—the hapless British-born veteran judge was left with no option but to allow his illegal dismissal.

At the time of his unilateral appointment to Chief Justice by Mugabe in 2001, a group of more than 200 black Zimbabwean lawyers tried to petition the Judicial Services Commission against Chidyausiku assumption of the post. In a five-page petition the lawyers took issue with Chidyausiku’s close association with ZANU PF party, suggesting that this compromised his impartiality. His ability to act as a moral pillar was also interrogated with his famous “moment of weakness” statement being brought up. During his tenure as chairman of the government sponsored 1999-2000 Constitutional Commission, Chidyausiku made this hilarious statement while lamely defending his giving a lady commissioner, Gloria Mukombachoto, undeserved funds. Then there were also allegations that he made sexual advances towards another female commissioner, the late Lupi Mushayakarara, while on an overseas trip to sell the commission’s agenda.

The petition also raised the issue of Chidyausiku’s then bigamous status.

“Mr Chidyausiku is civilly married to his proper legal wife but openly operates more than one household and has more than one wife. It is necessary that your commission (JSC) consider whether or not the country requires a Chief Justice who is in relationships that are questionable and well outside the law under which he is married.

“It is our strong view that a Chief Justice should be seen not only as totally impartial, but also should be of the highest integrity both in and out of court,” said the lawyers, who also included several fellow judges.

When Chidyausiku was eventually sworn in, most senior members of the legal fraternity and several members of the bench boycotted the ceremony.

 

 

…Some funny facts about Zimbabwe’s judiciary

 

*Judge President George Chiweshe, a former army (court martial) judge is the foreman at the High Court, allocating cases to judges and supervises them. The former war veteran (aka Cde Yasser Arafat and was deputy to current Zimbabwe National Army commander Constantine Chiwenga) is an unapologetic member of the ruling ZANU PF party. It was under his chairmanship at the Zimbabwe Electoral Commission that results of the March 2008 Presidential vote took a record five weeks to be released.

One can only imagine what sort of supervision the judges work under.

 

*Most of the judges are proud beneficiaries of the country’s controversial land reform programme, with those like Justice Chinembiri Bhunu and Justice Ben Hlatswayo having actually been involved in farm invasions.

 

*While it strongly believed that President Mugabe is related to the Chief Justice, Chidyausiku’s niece (daughter to his elder brother Paul Chidyausiku, an ex-editor at Zimpapers) Justice Antonia Guvava sits with him on the Supreme Court bench. He did not recuse himself when she was being interviewed for the appointment.

 

*One of the most bizarre ruling involved the case in which former Reserve Bank of Zimbabwe Gideon Gono (who had just finished showering judges with personal gifts like cars, LCD television sets, laptops etc) was being sued for ($80 000) damages by a Harare motorist whose top model car had totalled in a road traffic accident involving a tractor belonging to Gono’s New Donnington Farm. Despite not rejecting the facts that Gono had employed an unlicensed driver who at the time of the accident was driving a tractor without lights at night right in the middle of the road, both the High Court and later the Supreme Court found Gono and his farm business not liable to pay any damages, instead blaming the accident on the applicant.

 

 

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