Why Zimbabwe needs judiciary reforms to be open for business

THE Zimbabwean Constitution enshrines the principle of separation of powers among three distinct arms of government, which are the executive, consisting of the President and Cabinet, the legislature, which is the Parliament, and the judiciary (Courts).

Nevertheless, the independence of the judiciary from the executive has been largely indistinct. The implementation of the principle of separation of powers in Zimbabwe, including guarantees for judiciary independence, is important for the revival of the country's image and economy.

Investors would want to invest in countries where they are assured that there is observance of the rule of law and all are equal before the law. They would be certain that if they take their grievances and disputes to court, their cases will be dealt with justice and fairness.

To guarantee the protection of human rights and limit the power of the executive, it is essential that the judiciary and the legislature exercise their functions independently so that no single arm of government has excessive powers that may be open to abuse.

Government is commendable for availing funds towards improving and refurbishment of infrastructure for the local courts throughout the country to enhance an efficient delivery system. However, law experts argue that the judicial service commission has to undertake serious major reforms in operations to combat the polarisation of the law between government critics and its cronies.

The law appears to be favouring government protégés while the executive is using it to suppress dissent and incarcerating 'detractors', in what Alex Magaisa, a law lecturer at Kent University said as a law fare by President Emmerson Mnangagwa's regime.

"It (Mnangagwa regime) has normalised selective application of the law, aided by the lack of resistance to it," Magaisa posted on his Twitter handle recently.
Law experts have called for consistence in how cases are dealt with at the courts in terms of bail applications, sentences, and many other court processes. Inconsistences in court rulings on similar cases have destroyed public confidence on the judiciary system.

Minister Obadiah Moyo was involved in a US$60 million COVID-19 scandal, in which he was being accused of flouting a tender in favour of controversial businessman Delish Nguwaya's Drax International company but was awarded $50 000 bail on his first bail application attempt.

During that same period, journalist Hopewell Chin'ono, who was being charged of inciting public violence after he had posted a tweet, was denied bail at the magistrates court and several times at the High Court.

In another matter which was brought to the courts, State prosecutors did not oppose bail for suspended Zimbabwe Miners Federation president Henrietta Rushwaya on her initial bail application on charges of attempting to smuggle 6 kg of gold despite the seriousness of the matter. It was only after magistrate Ngoni Nduna demanded compelling reasons for the unopposed bail when the State made a u-turn.

In several attempts at the courts, Vice-President Constantino Chiwenga's exwife Marry Mubaiwa's application to have her passport released so that she seeks treatment abroad was dismissed.

Cases at the courts are dealt with their own merits, but Mubaiwa was denied her passport on almost similar circumstances with Chin'ono and author Tsitsi Dangarembga, who managed to have their passports released so that they seek medical attention abroad. Mubaiwa had to file an appeal at the Supreme Court for her to have her passport released, which is still pending.

The latest report on the State of Human Rights by the Zimbabwe Human Rights (ZHR) NGO Forum shows that in the past two years since Mnangagwa assumed power, hundreds of people were, beaten, tortured and harassed and some were even killed in State sponsored brutality. Following a coup that ousted Mugabe in 2017, the military have become part of the day-to-day running of government in the guise of enforcing law and order in the country.

The use of the army by Mnangagwa to consolidate power and thwart dissent has resulted to gross human rights abuse but no prosecution has been done.

Director for Southern Africa Human Rights Watch Dewa Mavhinga said until the government orders a prompt investigation on serious human right abuse that have been perpetrated by security officers over the past two years, constitutionality will remain a tale in the Zimbabwe judiciary system.

Mavhinga says impunity fuels continued right abuses and destroys the whole essence of the rule of law.

"Court sentences and orders act as deterrent measures to offenders. If someone commits an offence and is not taken for litigation, then they may repeat again, act as if they are above the law and continue perpetrating violence," he said.

Last year, High Court judge Justice Erica Ndewere was suspended on allegations of gross misconduct in the performance of her duties, not long after she had granted MDC-Alliance vice chairperson Job Sikhala bail.

This, according to government critics, cultivated a culture of fear among the judicial officers who would compromise their independence in fear of reprisal from government.

Late October last year, the judges wrote a letter to Mnangagwa complaining that Chief Justice Luke Malaba was interfering with their duties by ordering them to submit their written judgements to him first before passing them in courts.

"President Mnangagwa should work to restore public confidence in the independence and competence of the Judicial Services Commission (JSC), by openly defending and enforcing the principle of separation of powers," said Mavhinga.

"The principle of separation of powers is an important guarantor of human rights which is an essential element for any functional democracy."

The predictable denial of bail to perceived government critics is also another issue which has resulted to public losing confidence in the courts. In cases where anti-government critics are involved, it has become a common phenomenon that the courts cannot rule in their favour.

So strong is the perception that at one time, Harare City council director Tendai Kwenda who was being charged for criminal abuse of office, told a magistrate that he would not apply for bail at the lower court and opted to make his application at the High Court. He considered it a waste of time since he knew he was not going to be awarded bail.

"A fair and independent system is seen by adherence to process and substantive principles established in terms of the law. When you see patterns that are becoming household, which go against these principles, then it speaks to a potentially compromised system," said Musa Kika executive director of the of the ZHR NGO Forum.

In its December 2020 monthly monitoring report, the Zimbabwe Peace Project condemned the government for selective application of the law especially during the COVID-19 lockdowns, which have seen a spike in human rights violations.

Ordinary citizens and opposition party activists have been arrested for violating COVID-19 regulations but high profile people who violate the same regulations are not prosecuted. Opposition party activists, such as MDC-A vice president Tendai Biti, Jim Kunaka, and several other activists and have been arraigned before the courts for violating COVID-19 regulations.

Recently the MDC-T party was permitted to hold an extraordinary congress that was held without observing COVID-19 health protocols. Ousted leader Thokozani Khupe even tested positive of coronavirus soon after the congress.

Chillspot Records duo of Arnold "Fantan" Kamudyariwa and Tafadzwa (DJ Levels) Kadzimwe as well as show promoter Simbarashe "Dhama" Chanachimwe were jailed for convening a music gala in Mbare, while 52 others were fined for attending the same gathering.

But Kuda Tagwirei, a business mogul believed to be aligned to Mnangagwa reportedly organised a gathering that same New Year's Eve that night but was not prosecuted.

Some cases at the courts have dragged for over two years without prosecution. Nguwaya was eventually removed from remand on his COVID -19 tender scandal which implicated former health minister Moyo.

Former director in the ministry of public service Ngoni Masoka was also removed from remand on abusing NSSA funds after he had been on remand for six months without being prosecuted.

Kika said: "Sufficient and robust accountability must be insisted upon. For instance, the JSC must not tolerate judiciary officers who do not deal with cases timeously. Where the judiciary system is captured, rule of law and constitutionalism are sacrificed to advance the interests of the power holders. Our democracy is therefore compromised."

While Mnangagwa has pledged to use the court to deal with corruption, he still needs to put in place effective mechanisms to deal with corruption in the judiciary system itself.

Musa Taj Abdul, a notorious robber was granted unopposed bail at the High Court but had been on the run for over 20 years. The prosecutor was however also arrested on allegations of failing to follow directives from the National Prosecuting Authority, which has left the public doubting competence of the judicial officers.

"If Mnangagwa's government is serious about socio-economic development then it has to make a clean break with the past and take clear steps to restore the rule of law and the independence of the judiciary. The best way to re-engage the international community is to demonstrate by consistent action, clear commitment to the principle of separation of powers and the independence of the judiciary system," Mavhinga said.

The ZHR NGO Forum implored the government to embrace a culture of constitutionalism on human rights and respect of the rule of law.