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Judges under pressure: the Madzimbamuto case
By
Dr Alex T. Magaisa
A FEW weeks
ago, I wrote in these pages applauding the speech given by the Judge
President, Justice Makarau, my old mentor.
I found her stance remarkable, particularly in view of the brouhaha surrounding the purchase of a luxury vehicle for Governor Gono by the RBZ.
It seems that the pleas of the judges have been heard, which is all very well for them, but one hopes that the thrust of Justice Makarau’s speech is not lost in the stampede to gratify and regale the men and women of the law.
Whilst the response to the plea of judges, some of whom were clearly becoming pauperised, deserves commendation, there is understandable disquiet at the objects of gratification that have been provided, when the operational aspects of the justice system, including the needs and expectations of the impecunious foot-soldiers, i.e. the clerks, messengers, interpreters, require urgent prioritisation.
But the greatest uneasiness arises from the perception of the hasty response as an attempt to mollify judges with material possessions and the consequent hazard it poses to the autonomy of the judiciary. It is important that the interpreters of the law be reminded that even though their station in life means that their cries tend to be more easily heard by those controlling the national purse, the supreme duty is to the law and justice and hopefully the material gifts will do nothing to sway them from their judicial mission.
Today, I would like to relate a story - one that will be familiar to the judges, to my colleagues in the Law or anyone who has had the pleasure of reading Constitutional Law, and many Zimbabweans who lived during the colonial period after UDI. It will also be very familiar to the generation of politicians currently in charge of the country’s affairs, because they were adversely affected by its consequences. Of the hundreds of legal cases that I read during my four years in law school, the case of Madzimbamuto v Lardner Burke stands out. It had everything that intensified both my interest and curiosity about the nature of the law and the conduct of those charged with its administration and interpretation.
The case arose in
Rhodesia, as Zimbabwe was known then, in the context of the Unilateral
Declaration Independence (“UDI”) by the Smith government
on 11 November 1965. The case, which went through three courts and seven
judgements in all, occupies several hundred pages of law reports, the
reading and understanding of which is a daunting task.
I do not intend therefore, to burden the reader with the complexities
of this case but would like, in the simplest terms to which one can
possibly reduce the case, to use it to make a point about judicial independence
in the face of undue pressure from the executive. In my desire to unscramble
the case for the reader, I have inevitably run the risk of over-simplification,
which may upset some my legal colleagues, but I proceed with the hope
that they will understand and forgive, in the comfort of knowing the
principal object of this contribution.
Mr Daniel Madzimbamuto was a nationalist, fighting alongside others, for majority rule, whilst Mr Lardner-Burke was minister in charge of justice in the Smith government. Madzimbamuto was detained under a state of emergency shortly before the Smith regime announced UDI, stating that Rhodesia had become an independent sovereign state and proclaimed a new Constitution (“UDI Constitution”) to replace the 1961 Constitution (“Old Constitution”). Under the Old Constitution, the State of Emergency under which Madzimbamuto was being detained was due to automatically expire after 3 months. As that deadline approached, the Smith government extended its duration and to maintain the detention of individuals detained under the previous emergency.
Mrs Madzimbamuto brought a legal challenge on behalf of her detained husband. Her application was remarkably simple – she asked the Court to declare that her husband’s detention was illegal and for his release. Mrs Madzimbamuto’s arguments were that all actions and laws made under the UDI Constitution lacked legal validity in light of the existence of the Old Constitution, which the British had declared to still the legal mandate and that UDI was void and of no effect. The reality on the ground however, was that, for all intents and purposes, the Smith regime retained effective control of the country, including the civil service and the security structures.
The case was significant because it was a clear test of the legal authority and legitimacy of the Smith regime, which on its side, argued that it had successfully created a new order and the illegitimacy of its tactics were irrelevant because it was in effective control. The judges in the Rhodesian courts were therefore being asked to make a hard decision, one that brought into sharp focus the clash between allegiance to legal principle and the demands of political expediency.
The matter went through three courts: the General and Appellate Divisions of the High Court of Rhodesia and the Privy Council in the UK. Overall, despite differing somewhat in their decision on the legality of the Smith government, the judges in the Rhodesian courts came to the conclusion that its actions and laws were valid on grounds of necessity, being necessary measures for the maintenance of peace and order. It was decided that the security situation in the country required that the state of emergency be allowed to continue. It did not matter to the judges, that Madzimbamuto’s rights were being violated or that the “insecurity” to which they referred was a result of people trying to assert their civil rights. In fact two of the judges in the Appellate Division even accepted that the UDI Constitution and the Smith government had acquired legal status. Not surprisingly, the Smith regime hailed the decisions as victories because they gave it de facto recognition.
Interestingly, one judge in the Appellate Division, Mr Justice Fieldsend was not willing to accept the legality of the UDI Constitution but even he was prepared to recognise the actions of the government, on the basis of necessity.
A remarkable event happened when Mrs Madzimbamuto decided to take the battle to the Privy Council in the UK – being the final forum of appeal during that time. The Solicitor-General of Rhodesia made a radical announcement, stating that the orders of the Privy Council would not be obeyed by the Rhodesian government. Zimbabweans today will be familiar with similar reckless statements that have been made by government ministers to threaten and push judges into submission.
The Solicitor-General’s political announcement, clearly in defiance and contempt of the judicial authorities, was surprisingly accepted by the judges but most notably, Justice Fieldsend resigned in protest. Three Africans who were on death row, who could have appealed to the Privy Council were executed within the week of that announcement. What is significant here is that the judges in Rhodesia had effectively recognised the legal authority of the Smith government. The judges kept office and recognised the UDI Constitution, even though they had been appointed under the Old Constitution, which they had sworn to protect and obey.
The Privy Council decided in favour of Mrs Madzimbamuto, holding that the actions of the Smith government lacked legal validity. It stated that it was not for the judges to recognise the acts of an illegal regime. But the victory was only of theoretical significance, because the Rhodesian judges refused to accept the decision of the Privy Council. This refusal prompted one of the judges of the High Court, Mr Justice Dendy Young, to resign in protest.
So in Justice Fieldsend and Justice Young, the story has two unlikely heroes, besides Mrs Madzimbamuto, the unsung heroine of the case. The two judges had remained faithful to their oath and refused to be cowed into submission by the illegal regime, and therefore asserted their independence by resigning and refusing to serve under the circumstances. It is worth noting here, that when independence finally arrived in 1980, the new government duly recognised Justice Fieldsend by appointing him as the first Chief Justice of Zimbabwe. I like to think that the nationalists had recognised the integrity with which he had carried himself, sticking to principle rather than submitting to political expediency. It is ironic therefore, that the same people who once recognised the value of judicial independence, appear to have adopted the same tactics of the Smith regime in the Madzimbamuto case – bullying judges and putting them in very difficult conditions.
The judges faced the risk of losing their jobs if they had refused to recognise the Smith government and it could therefore be said that in deciding as they did, they were protecting their own interests. But it would have been a price worth paying for adhering to their oaths and legality. Their position about maintaining law and order did not take into account that the rights of citizens were being violated by an illegal regime. Justices Young and Fieldsend set the right precedent, preferring to lose office than to capitulate to the pressure exerted by the executive. They arguably occupied a privileged position in society but they gave it up as a matter of principle.
As Zimbabwe moves towards ever more uncertain times, the courts will be called upon to make very difficult decisions. And as the current Zimbabwean judges may be aware, they face similar and perhaps worse pressures but capitulating to such pressures would be a betrayal of their office and indeed the millions who look to the court as the final bastion for the protection of their rights. And, as we have seen in the Madzimbamuto case, history will judge them harshly. The two men chose to do the right thing and history has deservedly been kinder to them.
I always wished to make the Madzimbamuto case more accessible beyond constitutional law classes and courts of law and I would be pleased if this contribution has achieved a quarter of that wish. I hope the present Bench will produce its own Youngs and Fieldsends, who can stand firm in the face of pressure. History will be honour them.
Dr Magaisa can be contacted at wamagaisa@yahoo.co.uk
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