The tale of a captured judiciary

THE year 2020 did not see any major judicial decisions, but was replete with prolonged postponement of trials.

At one time, chief magistrate Munamato Mutevedzi threatened to sit on a Sunday for trial of former University of Zimbabwe vice-chancellor, Levi Nyagura who is facing charges of fraudulently awarding a PhD degree to former First Lady, Grace Mugabe.

Mutevedzi was challenging what he said were unnecessary postponements of several anti-corruption cases.

Magistrate Bianca Makwande also bemoaned unnecessary delays on graft cases and said continued postponement of the cases was resulting in a gridlock of pending matters at the courts.

Early this month, controversial businessman Delish Nguwaya, who is believed to be linked to the First Family and was allegedly fraudulently awarded a US$60 million tender to supply Covid-19 material through his Drax company, was removed from remand.

Magistrate Ngoni Nduna said Nguwaya had been remanded more than 10 times and the State was not showing interest to prosecute him.

Trends at the courts show that a majority of officials who have been nabbed for corruption continue to perform their duties normally whilst their cases are still pending at the courts.

This resulted in magistrate Trynos Wutawashe refusing to entertain several bail relaxation applications by offenders still employed by the same companies or organisations they allegedly defrauded.

Individuals who have spoken against President Emmerson Mnangagwa's government have also been tried in the AntiCorruption Court.

Well-known government critic and journalist Hopewell Chin'ono late this year challenged the courts for taking him into that Anti-Corruption Court when criminal charges levelled against him had nothing to do with corruption.

The foiled July 31 mass protests saw several civic society leaders getting arrested.

Government used the Covid-19 imposed lockdown to silence dissent with several civic society leaders, political activists and student leaders arrested and brought before the courts.

These include Transform Zimbabwe leader Jacob Ngarivhume, human rights lawyer Doug Coltart, Amalgamated Rural Teachers Union of Zimbabwe secretarygeneral Robson Chere and MDC-Alliance (MDC-A) vice-president Tendai Biti and deputy chairman Job Sikhala, Harare West legislator Joanna Mamombe, Netsai Marova and Cecelia Chimbiri who the government alleges faked their abductions, to name a few cases.

In 2020, an increased number of opposition political activists, rights lawyers and civic society leaders were brought to court mainly on charges of attempting to subvert a constitutionally elected government, inciting public violence and obstructing or defeating the course of justice.

Political analyst Eldred Masunungure said in fragile democracies such as Zimbabwe, the rule of law is overridden by a system whereby those in government apply the law selectively -depending on their interests at given situations.

"What is there is application of the rule by law, resulting in the catch-and-release judiciary system, where offenders are never brought to book. Those who speak against the government are persecuted by prosecution. A democratic government is one that has an independent judiciary system which enables impartial justice delivery so that all offenders are prosecuted fairly," Masunungure said.

Lecturer at the Great Zimbabwe University, Fidelis Duri said: "It's rhetoric to say that we have the rule of law in Zimbabwe. As it is right now the law is used to punish those who are against the establishment." While the creation of the Zimbabwe AntiCorruption Commission was a noble idea, its credibility was lost when Justice Loice Matanda-Moyo, who is wife to Foreign Affairs minister Sibusiso Moyo, was elected chairperson of the body because her husband is a well-known protégé of the President.

In another case which set tongues wagging this year, High Court judge Justice Erica Ndewere on November 5, locked herself in her office and refused to accept a letter of suspension after President Mnangagwa, following recommendations from the Judicial Service Commission (JSC), set up a tribunal to inquire into her fitness to hold the esteemed office of a judge.

Her suspension resulted in analysts describing it as judicial capture after there were reports that she had refused to take orders from the Chief Justice Luke Malaba not to grant bail to opposition and civil leaders like the MDC-Alliance vice chairperson Job Sikhala and former Tourism minister, Prisca Mupfumira.

"The whole judiciary system is jeopardised by the mere fact that the President appoints judges and it becomes difficult for them to maintain their independence, and as a result there is judicial capture," Duri said.

Marry Mubaiwa, the estranged wife of Vice-President Constantino Chiwenga, is one public figure who also frequented the courts throughout the year and her appearance was characterised by dramatic events which captivated the nation and both local and international media.

Mubaiwa is facing charges of attempting to kill Chiwenga while he was on life support in South Africa, as well as money laundering. She also stands accused of assaulting her maid at Hellenic Primary School.

When she last appeared at the Harare Magistrates Courts on November 30, two warrants of arrest were issued against her for not coming to court due to poor health.

Later during the day, Mubaiwa, who is being represented by prominent human rights lawyer Beatrice Mtetwa, arrived at the courts in an ambulance.

Members of the public watched as the visibly ailing businesswoman with swollen hands and legs was put onto a stretcher into the court premises and wheeled into the courtroom. She had two medical aides throughout the court proceeding, as she sat on a wheelchair in a lowly manner not befitting any offender, let alone a woman once of high stature.

Following the incident, Mubaiwa approached the High Court in a bid to get her passport back so that she could seek medical attention outside the country, owing to the poor state of local health institutions.

Mtetwa argued before Justice Benjamin Chikowero that Mubaiwa's husband, who is also Health minister on top of being VP, had earlier that week flown to China (as he frequently does) for medical care. She also wanted the same.

But Chikowero demanded to see her in person, stating that he wanted to assess her wounds before he passed his ruling on whether to release her passport or not. Again, the frail Mubaiwa was brought to court struggling to walk through the courtyard. After the hustle, Justice Chikowero then decided that he did not want to examine her anymore. He reserved his ruling on the application.

The case of Zimbabwe Miners Federation (ZMF) suspended boss Henrietta Rushwaya on allegations of attempting to smuggle 6 kg of gold worth US$330 000 also consumed the attention of citizens and media. The names of the First Lady Auxillia Mnangagwa and her son Collins were also dragged in the saga, prompting authorities to issue statements absolving the First Family.

Rushwaya is jointly charged with Pakistan businessman Ali Muhammad, Central Intelligence Organisation operatives Stephen Tserayi and Raphios Mufandauya and her ZMF colleague Gift Karanda. All of them, except Muhammad, were denied bail.

Despite the seriousness of her offence, State prosecutors did not initially oppose her bid to freedom and proposed that she be granted $90 000 bail but withdrew the consent after Nduna ordered submission of compelling reasons why she should be granted bail.

Journalist Chin'ono had posted earlier on his Twitter handle prior to Rushwaya's appearance in court that the State was not going to oppose her bail and he was arrested for that.

Again, Chin'ono's case was characterised by drama as he was brought to court well after working hours. Through lawyers Mtetwa and Gift Mtisi, he challenged his placement on remand arguing that he had been over-detained by the police, an application which was however dismissed.

He argued that he had not committed any offence but was just exercising his duty as a journalist. He was arrested while he was on bail on another case on allegations of inciting public violence during the July 31 mass protests. On both cases, he appealed for bail at the High Court after the lower courts denied him.

Hence he quizzes the discretion of the judiciary system when notorious armed robber Musa Taj Abdul, who was arrested during a shoot-out with police in Beitbridge, having been on the run for 20 years, easily got an unopposed bail at the High Court.

Abdul however did not taste any bit of freedom, as he was arrested and detained for fresh armed robbery charges before he had even deposited the bail money.

Tapiwa Kasema, the prosecutor who consented to his bail, was also arrested and brought before the courts on criminal abuse of office charges.

Under almost similar circumstances, City of Harare MDC-A mayor Jacob Mafume, who was facing allegations of parcelling out land was also arrested barely a week after he had been granted bail for attempting to bribe a key witness in his criminal case.

It is a common phenomenon at the courts that government critics are incarcerated while Mnangagwa acolytes are freed, signifying judiciary capture.

An independent judiciary system, as enshrined in Section 164 of the Constitution, is key in upholding the rule of law and democratic governance.