Doing justice to farming

Doing justice to farming

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• 'Stay with us...and constitute a nation based on national unity'

By Gugulethu Moyo

BEING a farmer can be a tough business in Zimbabwe. More so if you do it part-time.

For one part-time poultry farmer, the office of a judge's clerk proved to be, for a while, a prime location from which to sell fresh chickens.

The meat would be marketed in the clerk's office while the farmer worked solemnly in his own office to earn non-farm income from his High Court job.

The predictable traffic of Court regulars - high-earning lawyers in private practice, government legal advisors, prosecutors, litigants, court functionaries, judges and sometimes witnesses - were a near-captive market. It could have been a profitable enterprise.

That was until lawyers started complaining: they complained to the Judge President, until, finally, she put a stop to the burgeoning trade in chicken body parts. The intrepid part-time farmer in question was a High Court judge; his clerk was doubling-up as a salesperson; and the lawyers who complained were concerned that the sales activity - which sometimes involved fairly aggressive selling techniques - in the judge's chambers undermined the proper administration of justice.

Anecdotes of this nature pepper day-to-day life in Zimbabwe's legal community. One High Court judge, for instance, is said to favour supplementing his salary by doing a bit of roadside marketing from the courtyard in Harare, where he's often seen selling tomatoes and cabbages out of the boot of his official issue vehicle.

These and other true stories are traded often, among lawyers, to illustrate the extent of the tie-in between the enormous problems besetting the administration of justice in the country and the ubiquitous involvement by judges in small-scale farming enterprises.

So when Judge President Makarau decried this month, in a widely-publicised speech marking the beginning of the legal year, the parlous state of Zimbabwe's judicial institutions - which she said was caused by government under-spending on the judiciary - the litany of tales started doing rounds again: 'Well, the government has already taken steps to improve the pay packages of judges,' observers said.

'Gono [the Governor of the Reserve Bank] has just approved the purchase of a fleet of 4 x 4 vehicles for judges that will be given to judges to help them with their farming activities.'

'Besides,' observers said, 'when judges accepted farms, government thought that it had done away with the burden of maintaining a fair remuneration for their judicial service.'

'Those judges who have farms are expected to supplement low salaries with farm income,' the story goes.

'The only ones we sympathise with are the uncompromising ones who refused to take the farms.'

And herein lies one of the central problems of the administration of justice in Zimbabwe today. When, in 2000, at the start of the Zanu PF government-instigated agrarian revolution, members of the judiciary allowed themselves to be co-opted into a legally murky land redistribution scheme, the independent viability of Zimbabwe's judicial institution was lost.

Judges who stood their ground in those days and ruled that the executive had violated constitutional protections of property rights and due process were hounded out of office. Many of those who stayed on the job accepted government offers of farms whose legal ownership was subject to litigation in the courts over which they presided. Other judges, namely Ben Hlatshwayo and Tendai Chinembiri Bhunu, were reported to have 'invaded' farms and installed themselves in the place of the owners that they dispossessed.

Few who witnessed this process can forget the series of nihilistic manoeuvres of that time. When President Robert Mugabe and several ministers, prominent among them Justice Minister Patrick Chinamasa, took it in turns to condemn judges who ruled against farm acquisitions as 'relics of the Rhodesian era', one High Court judge even joined in the attacks, alleging that Supreme Court justices had pre-decided in their favour all the cases brought by dispossessed white commercial farm owners. The judge in question, Godfrey Chidyausiku, was later elevated to the position of Chief Justice in the fast-track judicial reform process that accompanied the land reform programme.

Rather than defend the time-honoured and proven model of separation of judicial, executive and legislative power that lies at the heart of most stable democracies, many judges took ill-conceived steps that made them look like willing collaborators in unlawful executive action. As many judges of the old bench were pressured to leave office, others jumped in to fill their shoes.

In a radical philosophical shift, a majority of newly-appointed judges in the 're-constructed' Supreme Court approved the same farm acquisitions that had been ruled unlawful by their predecessors; at the same time many judges became tenants on the newly-appropriated farms. The tenancy arrangements were tenuous; 'defaulting' tenants can have their leases withdrawn at any time.

Later, this new breed of farmer-judge applied for and accepted concessionary interest rate loans under financing schemes for new farmers. Loans do not always have to be repaid in cash. It seems that in-kind payments may suffice to square the debt because in a seemingly reciprocal arrangement the new-era judges, with one or two notable exceptions, repeatedly demonstrated a tendency, especially in high-stakes political cases, to lend the judicial process to the service of the state.

Judges who refused offers of farms were overlooked in the appointment system and regarded by the establishment as reactionaries.

The result has been that the value of stock of the judiciary plummeted. In a now infamous sound-bite, President Mugabe warned judges that court decisions that went against government policy would not be enforced.

'After all we pay our judges very well,' he ruled. Nothing about the judicial institution has been the same since then. Today, lawyers who would previously have viewed appointment to judicial office as the high point of a career in law, would not, for one minute, consider occupying judicial office. And, in recognition of this, the executive seems to have stopped asking those most distinguished in the legal profession to serve on the bench.

Now, it seems that to be appointed to the bench you must be a trusted hand - a fully paid-up subscriber to the politics of the landed ruling elite. But, another tragic twist that the judicial dealmakers failed to predict was that they would become, as appears to be the case now, one of the least-valued partners in the new political order. Gone are the days when judges were well paid. Now they 'beg for sustenance' and their function 'is not valued', as Justice Makarau confessed last week.

Those who took the farms have to juggle judicial and farming roles in order to try and make ends meet from operating agricultural concerns in a hostile economic climate. Court work is often set aside while judges manage labour-intensive, under-capitalised farming ventures. So serious are the compromises made and the conflicts of interest arising that lawyers sometimes remark wryly that one of the hardest legal cases of
the day is to figure out whether a judge is wearing a farmer's hat or a judge's wig.

It may, therefore, not come as a surprise that the Judicial Service Act, signed into law this week - which, in theory, introduces measures to secure the financial autonomy of the judiciary by placing the power to determine judges' salaries and perks in the hands of an independent body - is greeted with a large degree of cynicism by many in the legal
community.

'This law does not change much,' lawyers say. Having tied-up their independence with so many financial strings, Zimbabwe' s judges are yet to solve the hardest case of all: how to, with credibility, cut the strings attached to the agrarian revolution within the judiciary.

The writer is Gugulethu Moyo, a Zimbabwean lawyer who works for the International Bar Association. This article was first published in the Zimbabwe Independent of 26 January 2007
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