Judging by international standards

Judging by international standards

FORMER Chiefd Justice Gubbay was pushed out in a government 'clean-up'

By Roy Martin

IT IS customary in the United Kingdom for judges to be criticised. There is often debate on how judges are out of touch, or too liberal, but it is never seriously suggested the judiciary is compromised or acting for political motives. Indeed, David Blunkett, the Home Secretary, often implies the opposite: that the judiciary in England and Wales is too independent for the government’s liking.

Such debate on the independence of the judges is healthy in a mature and secure democracy, but that is not the case everywhere. In Zimbabwe, for some time, there has been evidence that the independence of the legal system in general, and the judiciary in particular, have been significantly compromised. At a conference for barristers and advocates held in 2002, a resolution was passed, known as the Edinburgh Declaration, which offered support for the rule of law and the independence of judges and lawyers in jurisdictions where these were seen to be under threat. That resolution has now been followed at a conference held in Cape Town where delegates from all of the bars throughout the world in jurisdictions where there is a divided legal profession, including the Faculty of Advocates, agreed to set up the Edinburgh Declaration Trust to provide practical support for our colleagues in such places.

Following the conference, I went to Harare with representatives from four other bars so that we could make our own assessment about how lawyers, including judges, are being treated in Zimbabwe. We spoke to a range of people involved in the justice system who represent different points of view and we deliberately sought out people from all sides of the issue to enable us to get a proper perspective. On the evidence which I have read, and now witnessed personally, my view is that the independence of the judges in Zimbabwe has been severely compromised.

There are several reasons for this. The first concerns the way in which certain judges have been treated. A high number of judges have resigned in recent times, and it seems to me that at least some resignations have been the result of political and other pressures. The former chief justice Gubbay had his courtroom invaded by people who described themselves as war veterans, a group known to be sympathetic to the government. He was informed by a government minister that his safety could not be guaranteed and these events led to his resignation.

There is also a perception that on occasions when a judge has given a decision against the interests of the government that judge has been subjected to pressure. Two justices - Blackie and Paradza - were arrested shortly after giving decisions against the government. It was generally accepted by those to whom we spoke that the arrest, detention and treatment of these judges was quite unacceptable. On the face of it, their treatment also appears to have been contrary to the Constitution of Zimbabwe. Other judges have resigned and taken up appointments as judges outside the country.

Such treatment has not been restricted to judges of any particular ethnic origin. Indeed, some of the judges who have resigned were appointed by the present government.

The second concern relates to the land reallocation programme. Land which has been taken by the government is reallocated by them. It is agreed by everyone that a significant number of senior judges have been granted farms by the government. Some of the judges and the land in question were identified to us specifically and they appeared to be large holdings.

The grants were made by the government and the farms can be taken back at any time without compensation. Whatever justification might be put forward for granting land to judges, judicial independence can only be regarded as having been compromised in these circumstances, in particular where many cases before the courts relate to the legality of the land allocation programme.

The third concern relates to ways in which the government has treated the judicial process. Court orders have been ignored or disobeyed by the government and those sympathetic to their cause, even when there has been no challenge to their validity and the orders include those concerning land transfers and the unlawful occupation of land.

The allocation of cases in the High Court has been taken away from the court registrar and assumed by the judge president of the High Court. It is believed that cases are not allocated on a random basis but in a way which favours the government. At the very least, this creates the potential for abuse and gives rise to the suspicion of political motivation. For example, there is concern about the allocation of cases arising from the general election in 2000. In total, 36 petitions were lodged challenging the validity of the election of government supporters, and we were told that of these, only 15 petitions had been given a first hearing and that seven or eight of these petitions had been successful.

All of the successful petitions were appealed by the government but only one of these appeals had been listed for a hearing by April 16 this year. In that one case, no decision had been given. Of the remaining election petitions, another 15 had been heard at first instance but no judgment had been handed down by 16 April. The rest of the cases have not even had a first hearing.

The next general election is scheduled for May 2005, and the result of the delays in the listing and determining of these petitions is that proper challenges to the election process will have been delayed for so long that the outcomes become academic.

The beneficiaries of these delays will be government supporters.

There is also a pattern of personal attacks on judges by the government-controlled press which often appear to be linked to a decision by a judge that is seen as hostile to the government.

The Sunday Mail, a government newspaper, recently carried a story in its "Under the Surface" column in the following terms: "Just when the government thought the revolution at the courts was over, there seems to be something stinking there. Under the Surface smells some Justice Gubbay residue and this residue stinks so bad that it is cause for concern. What makes the Gubbay residue even more dangerous is that it has the colour that we can identify with and speaks our mother language, but the thinking stinks of colonial ideas. Of course some will say, let’s have some democracy, but why leave a snake in the house? One day the snake will strike while we concentrate on pressing issues and it will be too late to hit its poisonous head."

The result appears to be quite clear. The government of Zimbabwe is not prepared to respect the rule of law, the independence of the judges and the judicial process, or the constitution. As lawyers in other parts of the world, what can we do? The Edinburgh Declaration Trust has received the support of bars in Scotland, England and Wales, Ireland, Northern Ireland, Australia, New Zealand, South Africa, Zimbabwe and Hong Kong. It will give barristers and advocates the opportunity to provide practical and financial help not just to lawyers in Zimbabwe but in other places around the world where the independence of the courts and the ability of the legal profession to practise and organise freely and independently are under threat.

In advance of the formal setting up of the trust, funds contributed by the bars have already been used to provide support for the defence of judges in Zimbabwe, and practical support in the future will include the provision of materials and subsistence to any lawyer anywhere in the world where the trustees feel the need arises.

The Edinburgh Declaration Trust will therefore support our colleagues who find themselves facing state interference and intimidation by offering them practical and moral support as they endeavour to uphold the principles of their profession and democracy.
Roy Martin, QC, is vice-dean of the Faculty of Advocates
JOIN THE DEBATE ON THIS ARTICLE ON THE NEWZIMBABWE.COM FORUMS
debate@newzimbabwe.com