At the weekend, President Mugabe criticised judges for ruling in favour of protestors’ rights to peaceful demonstrations against the government. This comes in the wake of High Court decisions in which judges have made rulings in favour of citizens’ constitutional rights in the face of opposition by government. The latest was a judgment issued last week by Justice Hlekhani Mwayera, on the morning of a demonstration by NERA, a coalition of opposition parties targeting electoral reforms. By the time the judgment was issued, the police anti-riot squad had already started dispersing protectors using tear gas and water cannon. The police effectively defied the ruling and subsequent clashes between them and protestors resulted in incidents of violence.
The decision attracted harsh criticism from government, with Mugabe’s spokesperson, George Charamba and state media leading the charge. Even the Human Rights Commission, which had condemned repressive tactics used by police was also heavily criticised by state media and its analysts. In addition, calls were made for ZANU PF to use its two thirds parliamentary majority to amend to the Constitution. Last week, Zimbabwean police issued a decree banning demonstrations in central Harare, the capital. This decree was immediately challenged by human rights and political activists, arguing that it is unconstitutional. The reasons why the decree is unconstitutional were outlined in this article: https://alexmagaisa.com/2016/09/01/why-si-101a-banning-protests-in-central-harare-is-unconstitutional/
It is against this background that Mugabe issued his acerbic statements directed at judges. “Our courts, our justice system, our judges should be the ones who understand even better than ordinary citizens. They dare not be negligent in their decisions when requests are made by people who want to demonstrate, to hold these demonstrations,” he told a gathering of the youth wing of his party on Saturday. In his view, the Justice Mwayera had been negligent to give permission for the demonstration. “To give permission again when they (judges) are to the full knowledge that it is going to be violent or (there is a) probability that there is going to be violence is to pay reckless disregard to the peace of this country. We hope now they have learnt a lesson, ivo ma-judges.”
The statements were made just two days before a judge of the High Court was due to hear an important challenge against a recent decree banning demonstrations in central Harare. Mugabe’s diatribe against judges was unfair because judges do not have the same public facility to respond to his allegations. If he has any concerns over the conduct of the judiciary, he should make use of the facilities available in the Constitution, including seeking judicial recourse against unfavourable judgments. The case before the High Court is the appropriate forum for the state to make its case against demonstrations. The relevant arguments must be submitted in a court of law, not at a public political rally. Such public utterances by a public officer who is required to uphold the Constitution not only undermine it, but also serves to intimidate and bully judges.
However, few who have followed Mugabe’s career can be surprised by his recent behavior and public utterances in respect of the judiciary. He bristles at any challenge to his authority. He is not the first leader to criticize judges, but he has been consistent over his long stay in power. Sixteen years ago, during a ZANU PF conference held at the height of the Fast Track Land Reform Programme (FTLRP), Mugabe told delegates, “The courts can do what they want. They are not courts of our people and we shall not even be defending ourselves in these courts … The courts can do whatever they want, but no judicial decision will stand in our way …” He was responding to decisions of the Supreme Court which had ruled against government over the occupation of white-owned commercial farms. Mugabe believed the judges were sympathetic to the white farmers. He soon began a process of purging them. War veterans, led by an aggressive Joseph Chinotimba invaded the Supreme Court building, disturbing a hearing and threatening judges. Patrick Chinamasa, his then justice minister openly told the then Chief Justice, Anthony Gubbay and fellow judges that their security could no longer be guaranteed. The Chief Justice was forced into early retirement. In their place, Mugabe appointed a more pliable set of judges.
His public stance post-2000 was markedly different from the early days of his rule when as Prime Minister, he pretended that his government defended judicial independence. In 1984, at a time when some of his ministers were severely lambasting judges, referring to them as relics of the colonial regime, Mugabe had defended judges saying in 1984: “some members of the executive have publicly criticised some … decisions by our judges; but the government as such has ignored these criticisms, preferring to treat them as the exercise by those concerned of their freedom of speech. The government has not, qua the government, by word or deed interfered with the independence of the judiciary.”
That was Mugabe sounding reasonable. However, given that his government was already ignoring court orders or simply reversing them by executive action, this was little more than public posturing. This is another mark of his deceptive leadership style which managed to fool the world for a long time. If the courts ordered the government to pay damages for human rights violations, such orders were simply ignored. In 1986, Mugabe told Parliament, “If Government – and I want to say this as a matter of principle – were to be awarding damages and paying huge sums of money that are involved in these cases, some of which are of a petty nature, Government would in my view be using taxpayers’ money wrongfully … where people take advantage of our liberal situation to go to court and win on technicalities, they should not expect that Government is going to use people’s resources to enrich them …” This was Mugabe basically stating that his government would not respect court orders awarding damages for human rights violations, which also undermined the judiciary.
On other occasions, Mugabe has shown utter disregard for the judicial process by pre-empting judges’ decisions. One example is when in July 2015 he proceeded to set the dates for a by-election at a time when the courts were still to determine whether or not there was a vacancy in a particular constituency. ZANU PF MP Kudakwashe Bhasikiti was challenging his expulsion from the party and the matter was before the High Court. All Mugabe had to do was to wait for the outcome of the judicial process before setting by-election dates. There was no rush to hold the by-election.
On another occasion, in March 2015, Mugabe made similar threats against judges soon after his former colleagues Didymus Mutasa and Rugare Gumbo had filed an application against ZANU PF, also challenging their expulsions. Speaking at a public event in the Midlands province, Mugabe said the courts had no jurisdiction over internal party matters. He went on to question the qualifications of any judge who would agree to hear the matter. These inappropriate statements were condemned as intimidating judges as well as pre-empting a matter that was already before the courts.
In August 2013, soon after the controversial July 31 elections and at a time when his main rival Morgan Tsvangirai was mounting a legal challenge in court, Mugabe made statements on the case at a public event at the Heroes Acre. He publicly criticized Tsvangirai for launching the election petition. These statements were made in the presence of the Chief Justice, Godfrey Chidyausiku, who was due to chair the hearing a few days later. These statements were criticized as interfering with the judicial process.
These examples demonstrate Mugabe’s usual tendency to interfere with the judicial process, by attacking judges or litigants at political rallies where they do not have opportunities to respond. The fact that he has threatened judges this time may shock those who are unfamiliar with his leadership style and strategies but as the above examples demonstrate, he has always played this hand. In most cases, his strategy has worked because judges have succumbed to the threats and intimidation.
In the past judges have stood their ground although this has cost judges their jobs. In 1989, when Didymus Mutasa was still the Speaker of Parliament, there was a serious clash between Parliament, the Executive and the Judiciary when Mutasa refused to honour a judgment which upheld a challenge brought by former Rhodesian Prime Minister, Ian Smith, who was now a Senator. When judges were condemned, the judges led by the then Chief Justice Enoch Dumbutshena issued a strong rebuttal and refused to be intimidated. They were supported by lecturers at the Law Faculty at the University of Zimbabwe and by the Law Society of Zimbabwe in condemning the attack on the judiciary. These days, however, the judiciary is more muted, the academic community has changed over the years and the Law Society is less vocal, if at all, on these matters. Much is left to civil society bodies such as the Zimbabwe Lawyers for Human Rights to defend judges against threats and intimidation.
It remains to be seen whether Mugabe’s statements will achieve similar success in the case against SI101A of 2016, the decree that bans demonstrations in central Harare. The case which was due to be heard today, Monday 5 September, has been postponed for two days to Wednesday 7 September 2016, as the parties have been asked to submit heads of argument on the basis that it is an important matter which requires proper argument. While the requirement for proper argument is understandable, this serves to delay the matter. Tactically, there will be further delays as the judge will likely reserve judgment after argument. Meanwhile, the two week ban on demonstrations in central Harare is already operational. By the time judgment is delivered, probably next week, the purpose of the two week ban would have been achieved.
Nevertheless, despite these tactical delays, judgment on the matter will still be highly anticipated as this is one of the most significant constitutional cases since the adoption of the new Constitution – pitting the state and public order on one side and citizens’ fundamental rights on the other side. The judgment has the potential to set an important precedent: it could either give a licence to government to restrict rights by decree or fortify the protection of fundamental rights. It could create a moral hazard that Mugabe’s intimidation tactics still work or raise the reputation of the judges in the estimation of members of the public.
waMagaisa
