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C h a p t e r 5 The Judiciary: From Resistance to Subjugation Since Independence the judiciary has often been under attack, including the harassment of individual Supreme Court and High Court judges, some of which was documented by human rights NGOs such as the CCJP and LRF.1 In fact, Mugabe’s regime never really accepted the principle of the separation of powers and often singled out white judges for abuse. Being a seasoned tactician, Mugabe’s abiding by the law has always been qualified and calculated. However, the assault against independent judges—many of them blacks—commencing in late 2000 is unprecedented in its violence and duration. The courts have been purged and subsequently staffed with demonstrably pliant judges. As part of this campaign the authority of the courts was systematically undermined by government speeches and actions. These were not regrettable ‘‘excesses’’ but a sustained and deliberate assault against the judiciary. It cannot be explained by a sudden and somewhat mysterious change of mind on Mugabe’s part, nor can it be understood as the unfortunate by-product of the political and social conflict building up in 2000. Here again the land controversy operated as a mere smokescreen for a deliberate sabotage of the judicial system. In other words, the courts were coerced into subservience—though not totally—because it was the logical conclusion of a long-standing albeit controlled hostility and a prerequisite for the preservation of Mugabe’s political power by all means. Therefore this process belongs to a two-decade confrontation between the judiciary and the executive. At the same time it is an essential part of the survival plan worked out by Mugabe and the small clique surrounding him. An independent judiciary would never have sanctioned 142 Chapter 5 the violence and manipulation surrounding the elections that were the only means for ZANU-PF to avoid resounding defeats in 2000 and 2002. Through the years, the High Court and the Supreme Court (court of last appeal and constitutional court)2 have managed to resist several government attempts to interpret the law to its exclusive benefit. Given Mugabe’s autocratic stance, his inclination to use violence against his opponents, and the intolerant political culture of the ruling party, it is surprising that the judiciary retained its autonomy for so long. To explain this somewhat miraculous survival of an independent Judiciary until 2000, in the context of a neo-authoritarian regime, one must take into account several factors. Constitutional and legal safeguards played a role but cannot fully explain the judiciary’s ability to resist the executive ’s encroachments. For example, the provision enabling the president to appoint to the Supreme Court as many judges as he pleases—without a number ceiling—was in the constitution from 1981 but was never used until 2001. Therefore, one must understand what made Zimbabwe’s judges resilient and willing to uphold the rule of law against political interference and what process led to the final showdown. Constitutional Protection The Supreme Court has played a decisive role in safeguarding individual and collective liberties through an overall liberal interpretation of the Declaration of Rights included in the Summary of the Independence Constitution attached to the 1979 Lancaster House Agreement. The Declaration of Rights was said to be ‘‘fully justiciable,’’ and the Supreme Court had the authority to rule in favor of anybody alleging that his or her rights under the Declaration were infringed.3 Consequently the Declaration had a superior value in comparison to other sections of the constitution and all the laws. Derogations were only admissible ‘‘within specified limits, during periods of emergency.’’ The Declaration was de facto untouchable for ten years: a bill amending the Declaration— unless it was meant to expand the rights already stated—required the unanimous vote of the House of Assembly and the votes of not less than two-thirds of the members of the Senate, when an ordinary constitutional bill would pass in the House with 70 percent of the members’ support. Although this provision has often been vilified because as a consequence white farmers’ property rights were safeguarded, it has been instrumental in enabling the courts to protect Zimbabwe citizens from ZANU-PF arbitrary power. Not surprisingly the ruling party attempted to erode this judicial protection with Constitutional Amendment No. 9 The Judiciary 143 (Act 31 of 1989) that entered in force in 1990. If the land issue had been the unique concern of the government, it...


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