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Why fighting against Malaba and Patriotism & The Judiciary in Zimbabwe

11 Jun 2021 at 15:42hrs | Views
Dr Masimba Mavaza
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems, where the executive and legislative branches overlap.

The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances. The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica model is a common type of separation, there are governments that have more or fewer than three branches.

The three branches of power are the three components which are very important. The branches are separate but working to get her to complement each other.

Like in a motor vehicle. There is water in the radiator. There is fuel and there is oil. These three are all essential in a motor vehicle. The can not function without one of the other.  If any of the three gets in the way of the other the whole car will not move. If water mixes with oil there will be a significant impediment to the smooth functions of the whole car. Like wise if the fuel mixes with water the car will not move.

So the three branches need to work in harmony for the whole car to move.
If any of the three exist in direct conflict with the other then there will be no progress in the day to day functions of the car.

There are Perils of antagonism between or among the three branches of the state in Zimbabwe. The branches of power are bush bracing and flexing muscles against each other. The antagonistic behaviour of the branches in Zimbabwe exhibits great serious consequences for the nation.

The Collision, if not addressed urgently, could threaten state security in the long term. In actual fact Zimbabwe is compromising it state security by playing their banter in the public domain.

Not only does this behaviour affects our security, this Collision and antagonism threatens our social fabric and statehood. It reduces the nation to a state without values and principles.

As has been seen when the judiciary lodged their power hungry model in the executive Zimbabwe suffered a big time. The Turmoil between the three branches of the state repel investment and reduces employment. All economies are affected and the suffering of many becomes unbearable.

The recent spat in the three arms of power has exposed the key challenges in Zimbabwe today?  This has exposed patriotism or lack of it.

Zimbabweans in all walks of life have lacked the sense of belonging. We need a sense of collective belonging in a shared motherland. Zimbabwe is the only country we can call ours in the whole country.

Zimbabwe need to under go some lessons of self actualisation. We need to have a broad dialogue and agree on a code of national values. These are not new values. We have them. They are called uBuntu/Hunhu. We need a re-set of u Buntu.
Judicial issues in particular.

 In Zimbabwe there is a severe misconseption concerning the doctrine of Separation of Powers. There is enmity exhibited by the judiciary against the Zimbabweanship. The courts believe that they have to be human rights activists. This misplaced belief is the number one destruction of our nation.
Many believe that the the existence of Separation of Powers between the  government and the judiciary is best evidenced by acrimony and schism between the two branches. The one believes punishing the other is the way to assert your dominance. Many believe that the doctrine works when the two branches are at loggerhead and when the country grounds to a gridlock. This misconception has embarrassed the country while some idiots celebrated the confusion.

On the contrary Separation of powers does not mean working in conflicting terms. It means working in complementary terms.
6 Separation of powers is best likened to water and oil in a car. The two work towards the same purpose, ensuring that the automobile pulls efficiently and reach its destination for the sake of passengers and the driver. However, the two liquids never mix. The fact that the two liquids separate and never mix does not mean that they are enemies or that they do not function to the same objective.

Similarly the judiary and the government must not mix but they work in tandem to pull the state automobile for the safe arrival of citizens to the socio-economic destiny
Neither arm of the state should be beyond patriotism.  Ministers and judges are servants and must all serve patriotically.

Patriotism means all, including judges (and particularly judges who weild so much power, must serve with the strictest and highest standards of patriotism) Patriotism means respecting the judicial oath. It means serving with dignity. This serving with dignity includes the excise of impeccable integrity that resist the swaying of political wind, be it foreighn or domestic.

Where national interests are at stake, Zimbabweans, including judges, must close rank and come together. We must learn to fight together for the benefit of our country.

judicial squabbling, rancur and remonstration does not only hurt the dignity of the office and confidence in the dispensation of justice, it opens door to lawlessness. This threatens national security.

In any state, the judiciary must be a beacon of reason, integrity and continuity. When everything else is shaking, citizens must have faith that they will have recourse in a judiciary that is independent and honourable. This Act and the Concordat vest in the  Chief Justice very considerable responsibilities in respect of the judiciary and of the business of the courts of Zimbabwe. The Chief Justice exercises these responsibilities through the Judges'  and the Judicial Executives. If the office of the Chief Justice is belittled then the respect of the whole justice system flies through the window. The principles of judicial accountability can be compromised if the judiciary fights its personal administrative problems in public.  There is no secret that many judges do not like Luke Malaba personally because of his head strong and unorthodox way of administration. But there are many ways to tackle that than to get at him through courts in a constitutional spat.

We have already discussed the peculiar constitutional position of the judiciary and the conventions that protect their independence. There are numerous ways in which judges are restrained and which together, ensure that judges are accountable for their actions. So Malaba could be held accountable for his poor administrative skills without dragging the name of the country into mud.
We must know that someone is accountable for their actions. In many areas accountability means that, just like football managers, an individual who fails to perform satisfactorily in their job should be sacked or should resign. Some people have called this form of accountability, 'sacrificial accountability', meaning that the only solution is for the individual concerned to no longer continue in their role.

In the case of the judiciary, however, safeguards are needed to ensure that Judges are free to make their judicial decisions without fear or favour and thus to preserve their independence. For example, if a politician or senior judge felt able to sack a particular judge, or remove him or her from a case, simply because they did not like the decision reached, the principle of judicial independence would be greatly undermined and there could be no possibility of a fair trial. It could also lead judges to make decisions they felt might be more acceptable to whoever had the right to decide whether they should continue serving as judges or be promoted. If, for instance, the permanent or continued appointment of a part-time temporary judge was in some way determined by one of the parties to the case, there would be a real risk that independent and impartial judicial decision-making could be subverted by self-interest.

Apart from this, however, it is clear that judges are not subject to this 'sacrificial accountability'. However, they are subject to a different form of accountability, which has been referred to as 'explanatory accountability'. Put simply this form of accountability means that individuals can be asked to give an account as to why they have behaved in a particular way. The judiciary is subject to this form of accountability in a multitude of ways. Taken together, these ensure a considerable degree of accountability.

So the revenge judgement executed by some judges in a bid to rid the judicial system of Malaba is not reasonable.
Judges did show to a greater extent that they are controlled by the current affairs and not by law. Many lawyers took to Twitter showing their support for Dr KIKA in actual fact they were saying Malaba must be be put in the same group with the Executive.

It is normally prudent for the courts to stick to law and Ming out politics.
Within this approach, patriotism is a fundamental virtue.

The judges must reject moral significance of national borders and claim for equal rights and obligations to all human beings regardless of their origin and nationality.

By the term "patriotism" Maclntyre understands a special kind of loyalty towards one's own nation because of its particular features, merits and achievements (Ibid., p. 286)1. Patriotism is the same kind of virtue, according to MacIntyre, as marital fidelity, love to one's own family, friendship and all other kinds of loyalties that result from natural and social relations in which we are engaged. Patriotism such understood is also distinct from "constitutional patriotism" by which Jürgen Habermas means loyalty towards a constitution, a set of rights, instead of loyalty towards one's own nation.

The judges must not have a bias because the people believe them and thus respect their duty to be fair. A high quality, independent judiciary that is appointed on the basis of professional abilities is enshrined in the Basic Law – and that includes judges from overseas.
It is a shame that the judges allowed their judicial fights take a centre stage in the public.

Zimbabweans must grow and stop fighting themselves.  Judges must maintain the dignity of their office and must not engage in public fights.
All what can be said now is that Zimbabwe needs serious judiciary reforms.

Source - Dr Masimba Mavaza
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