Don't lead us into constitutional crises but deliver us from contempt of court

DEAR President Emmerson Mnangagwa,

Your Excellency, while the past week has been eventful and historic in several respects because of the High Court judgment that effectively "retired" Chief Justice Luke Malaba, for some of us it has been a déjà vu moment as we have been plunged into a constitutional crisis on two fronts.

The inadvertent constitutional crisis created chiefly by the Executive is not unfamiliar territory. Are we being dramatic in using the term constitutional crisis? I think not.

A constitutional crisis in a constitutional sense is a crisis or conflict between branches of government brought about by a refusal to adhere to the dictates of the Constitution by one of the branches with a clear indication of no political willpower to resolve the conflict.

Easily then, a crisis can be triggered by a sitting President refusing to vacate office when asked to do so by either Parliament or the Judiciary. That would be a constitutional crisis because it is a conflict between the branches brought about by a refusal (by the President) to align to the Constitution's rules that are intended to resolve that dilemma.

Your Excellency, every country has some constitutional crisis or the other but some more than others. In the USA, some examples can be found during the tenure of Donald Trump and Richard Nixon. Closer to home, South Africa had the notorious "Coloured Voters" case (the Harris case) where Parliament purported to overrule the powers of the court to pursue its segregationist policies.

Around 2000, Zimbabwe had a lengthy constitutional crisis and the initial protagonist was the then Attorney-General Patrick Chinamasa, who later became Justice minister and was joined by Cabinet colleagues in judgments relating to the land reform exercise.

This crisis resulted in the hounding out of office of several judges including the then Chief Justice Anthony Gubbay. In Zimbabwean legal history, our constitutional crises are almost always triggered by acts aimed at scandalising the courts, and this was no different in 2000. Scandalising the court is a subcategory of contempt of court.

In Chinamasa's case, our then Chief Justice Gubbay, penned a significant judgment concerning the offence. Chinamasa was charged over a statement which appeared in the Press concerning the sentencing of an accused which he felt was too lenient. He said then: "The Attorney-General's office is shocked and outraged by this judgment and the sentences have brought about a sense of shock and outrage in the minds of all right-thinking people."

Your Excellency, this sounds eerily similar to a statement released by Justice minister Ziyambi Ziyambi almost 21 years later, does it not? Ziyambi's statement goes way beyond this, however, as it refers to judicial capture and veiled threats about poking bears in the eye.

Candidly, the minister breached section 164 of the Constitution which states that no person may interfere with the functioning of the courts. In Chinamasa's case, the court found that his Press comments constituted contempt of court specifically because they scandalised the court.

So, if we remember and credit him for nothing else, let us remember that because of Chinamasa's sharp tongue, the courts were able to give meaning to the charge of scandalising the court under a constitutional democracy where freedom of expression is guaranteed.

The judgment has become the "African yardstick" for balancing the need to protect the court and freedom of expression in general. It has been cited and relied on by some of the most superior of courts globally especially in the southern African region. The case is, therefore, good law and even better precedent for us to use here.

Your Excellency, the Supreme Court has defined the crime of scandalising the court as being committed by "publication either in writing or verbally of words calculated to bring a court, a judge or the administration of justice through the courts generally, into contempt."

Basically then, this offence is committed where statements made by an individual or a body are meant to ridicule the court, undermine its authority, lower its reputation in the eyes of the public or cause the public to lose confidence in the Judiciary.

Does this mean the courts cannot be criticised? Not at all but we need to distinguish between protected criticism and criticism that strays into contemptuous conduct and this is what the court dealt with. Legitimate criticism of the courts that is courteous and yet balanced does not fall within the ambit of this offence, which means that when analysts and academics critique a judgment, provided it does not undermine the authority of the court, such comment falls under legitimate constitutional protection and thus is not contempt of court.

The court found that Chinamasa's words had the effect of undermining the authority of the courts. If we use the Chinamasa test, there is no doubt that any court would find Ziyambi's statement to undermine the authority of the courts particularly because the minister suggests that the judgment of the court should be disregarded because the judges have circumvented their legal reason and abandoned it for ulterior causes. Bluntly, the statement tells us that government does not respect, recognise, or intend to abide by the judgment.

Your Excellency, threatening the independence of the Judiciary is precisely what makes this form of contempt serious enough to trigger a constitutional crisis. The action itself is a violation of the Constitution and a breach of the oath of office taken by members of the Executive. When the Executive indicates that it intends to disregard unfavourable court orders and asserts that change must be made to the Judiciary because of the judgment, that is breakdown of the rule of law and the genesis of the death of constitutionalism. Interestingly, Chinamasa would later go on to make arguments about transforming the Judiciary after his contemptuous rant.

The culture of scandalising the courts and undermining the Judiciary did not start with Ziyambi. If anything, it is an inherited culture within the governing party. The lengthy constitutional crisis that I alluded to earlier, started in early 2000.

In previous articles, I referred to this as the Judicial crisis because many judges opted to resign because of the kind of criticism and intimidation that came from the Executive. The Information minister at the time, who needs no mention of course, said of Justice Fergus Blackie's judgment which was critical of Chinamasa's conduct: "There is no doubt that fair-minded and law-abiding citizens will see this judgment for what it is: An outrageous, sinister, highly personalised crusade made by someone who should be packing his bags".

Justice Blackie resigned shortly after the ruling but not before being arrested. Chinamasa would go on to state: "We must begin to exorcise from all our institutions the racist ghost of (former Rhodesian leader) Ian Smith, and we do so by phasing out his disciples and sympathisers."

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Paul Kaseke is a legal advisor, commentator, policy analyst and former law lecturer with the Wits Law School. He writes in his personal capacity.