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SA ConCourt ruling on Nkandlagate - Zimbabwe should transform to a fully Constitutional Democracy

26 Apr 2016 at 23:20hrs | Views
The South African Constitutional Court made a land mark ruling on Nkandla case fews weeks ago. By and large this episode donated a golden opportunity for us as Zimbabweans to introspect, ruminate and engage in 360 degree performance appraisal of our Judiciary system. The SA Concourt noted that the President of the Republic failed to uphold, defend and respect the Supreme law of the land by failing to adhere to and abide by the remedial action by the Public Protector. The Public Protector's remedial action against President Jacob Zuma over the upgrades to his Nkandla home were binding, Chief Justice Mogoeng Mogoeng said.

Kudos ought to be granted to the Judicial System of South Africa for showing some semblance of independence and championing the rule of law. The SA bench proved that it is not susceptible to manipulations from the Executive and does not pander to the whims and caprices of the Executive. The ruling also vindicated the vociferous calls by Democratic Alliance and Economic Freedom Fighters in as far as adhering to the tenets of Constitutionalism is concerned.As Zimbabwe its imperative that we transform to a fully Constitutional Democracy such that our Constitution can act as a biblical David against goliath of corruption.

The Nkandlagate ignited a lot of brohouha within political circles in South Africa with some calling for the ouster of President Zuma on the grounds that he had become a liability and an albatross around the neck of the ANC governing party.

The ruling was in stark contrast with the situation in Zimbabwe where a President of the Republic has the audacity to tell the people that 15 Billion USD worth of Diamonds was embezzeled. No one approaches the ConCourt for answers. Its bussiness as usual ,there is deafening solemn, statuette silence and the so called Civil Society remains mum. Such apathy is pathetic.

Suffice to say in Zimbabwe pointing an accusatory fingers against the Executive is considered taboo and gravely sacrilegious and can attract dire recriminations and ramifications.When Gubbay ruled that the land reform was illegal, he resigned under duress.His ruling was condemned by the Executive and by this the Executive flouted the cardinal principles of the doctrine of Seperation of powers. Justice Gubbay's Office was stormed by rogue and seemingly intoxicated War Veterans. He was called a Manchester man with links wth the CIA and the uncouth, foul- mouthed Prof Jonathan Moyo went further and castigated what he considered to be anti-land reform lawyers as night lawyers going to see night judges in a night court to seek night justice. That marked the genesis of the erosion of rule of law in Zimbabwe. This episode marked the miscarriage and deathknell of the judicial system in Zimbabwe and heralded a new era of Zanupf government flirting with the Courts if the case of the Supreme Court's nullification of MDC Speaker of Parliament in 2008 is to go by. That was a quentissential case where the Zanu pf led government tried to subvert and regain what it lost in an election. Good prevailed over evil and the man who had brought the case before the Constitutional Court, Jonathan Moyo was left in the cold with egg on his face. The MDC's Lovemore Moyo won the Speakership agian.

However, we still expect a tectonic shift from the Zimbabwean bench. We still expect the bench to carry out its duties with dignity and decorum.It is imperative that Courts in Zimbabwe are depoliticised by any means. Judicial independence means, at least, that the judiciary is neither dominated nor controlled by the political branches and that it is disentangled to the extent possible from the forces that influence those branches' policy choices. Courts must not be used to achieve political ends. Courts should not be used as pawns in politics but in Zimbabwe we witnessed the brutal expurgation of Judges considered to be anti-land reform by the government. Up to now Zanu pf government still has this abhorrent penchant of using state institutions to achieve political ends. Such is common among Rick flaire political characters though undesirable.

The Office of the Public Protector is a Constitutional creature and it has the same powers as the office of the Ombudsman in Zimbabwe and other countries.The Office of the Ombudsman is little known in Zimbabwe and it is not vested with legally binding powers. It can only offer recommendations, this speaks volumes and ought not to be overlooked.

The Office of the Ombudsman is more of a paper tiger in Zimbabwe and this allow government departments and institutions to work unmonitored thereby creating a breeding ground for corporate governance malfaesances and dereliction of duty thereby reducing State institutions and departments to mere incubators of mediocrity.When an important office like this is not legislatively empowered to execute its duties and responsibilities, the result will be flagrant disregard of ethics among other fiduciary responsibilities by government departments and institutions. Acts of ommission and commission will be perpetrated with impunity and the end result will not be different from the Enron Scandal, breakdown of everything and total, irrevocable nd irretrievable collapse of everything!

Source - Wilton Nyasha Machimbira Political Scientist
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