Did Mugabe attack the Judiciary last Saturday?

DID President Mugabe attack the Judiciary last Saturday? Is there a war between the Judiciary and the Executive, or is someone trying to foment one? Should the judges feel intimidated?

A layman's observations

Justice Priscillah Chigumba's judgment on Wednesday on the purported ban by police of public demonstrations in the Harare CBD was spot on. It confirmed Zimbabwe is a constitutional democracy and that even the police are required to follow and adhere to the law in letter and in spirit.

The real danger to our democracy is when such judgments are abused by the media and politicians to impugn the reputations of judges and the courts by imputing political motive or personal intention to them.

There is a risk of imparting levity to judgments which are constitutional and constitute the pillars of our democracy.

Where did the rain begin to beat us?

Prior to the purported ban there had been demonstrations. These later turned violent, very violent too. Property was destroyed. People were injured. Police then decided it was unsafe to allow another demonstration so soon in light of what they had just witnessed, and the declared intention by some of the demonstrators to march to State House.

A High Court ruled the Constitution allowed people to freely demonstrate. There was more violence, including burning of a police vehicle. It was obviously up to the police to make a convincing case to the courts why further demonstrations posed a risk.

On Saturday President Mugabe said the judge was "careless and negligent" in ruling in favour of the demonstration, which turned violent as police clashed with the demonstrators. He didn't say the judgment was wrong per se or that it shouldn't have been made.

It is the role of the police to maintain and enforce law and order — even in a democracy.

On demonstrators, President Mugabe said: "Of course we can't allow them to continue with these violent demonstrations unimpeded. Enough is enough." To me the operative word is "violent demonstrations".

Looked at in that context, there is no way a judge would have known that the demonstration would turn violent. It was up to the police to make their case. The judge could not sanction a demonstration, let alone a violent one.

Similarly, it is mischief to assert that President Mugabe attacked judges for sanctioning demonstrations because judges don't enjoy any such power.

Judges only uphold constitutional provisions. It is the Constitution which allows people to demonstrate or to petition their Government, not judges.

In this case, what President Mugabe said could not be allowed to continue are "violent demonstrations". To the best of my knowledge, limited though it is, there is no provision or section in our Constitution which permits "violent demonstrations" and as such there can be no way a judge could possibly sanction one.

To then claim that President Mugabe attacked or intimidated the Judiciary for sanctioning something that doesn't exist in the Constitution, that is, a "violent demonstration", is mischief. It cheapens the serious work judges are impelled to perform by the Constitution.

In fact, there appears to be determined efforts by opposition politicians and sections of the media to drive a wedge between the Judiciary and the Executive, or to turn judges into political creatures, and to insinuate that they distort judgments pursuant to undisclosed political agendas.

That is the mischief Justice Priscillah Chigumba sought to preempt in the preamble to her judgment on Wednesday. It was a point addressed to both, those for and those against demonstrations. But more importantly, a self-inflicted blow for those who often make the loudest noise when court verdicts go against them. To that end, the judge's remarks are worth reproducing:

"Before I come to the relief that I am going to grant to the applicants, I wish to say the following. Judicial authority derives from the people of Zimbabwe and is vested in courts in terms of Section 162 of the Constitution," she said. "Section 164 of the Constitution states that courts are independent and are subject to this Constitution and to the law which they must apply impartially, expeditiously and without fear, favour or prejudice."

She went on: "Independence, impartiality and effectiveness of the courts are central to the rule of law and to democratic governance… The Constitution stipulates that the role of the court is paramount … in safeguarding rule of law in a democratic society."

The judge duly suspended the police ban on demonstrations for seven days to allow the State to put its papers in order. She said the purported ban was unprocedurally done and thus in violation of the Constitution. She said it was not the role of police to make laws via statutory instruments.

Like we pointed out in yesterday's Herald, the State bungled its own case. There was nothing about the judge taking a personal or political position in her ruling. She simply stated the law.

For someone to then read in that ruling "an island of defiance" of the Executive by Justice Chigumba is most strange, not least because her preamble to the ruling removes all personal interest or views from it. She is stating the law in its cold principle, without emotion or seeking to challenge, let alone defy, the President.

The judge's preamble is very important. It is opposition political parties themselves which have often made scurrilous claims about President Mugabe packing the court with Zanu-PF sympathisers. It the opposition parties who are wont to complain about a compromised Judiciary when judgments are delivered against them. They have sought to impugn the integrity of the Judiciary by claiming decisions which go against their interests are politically-motivated.

Justice Chigumba has done her duty; the law must be followed scrupulously, and judicial pronouncements read as such, without imputing political motive to them. She hasn't done either the pro-demonstrations or those against any favour.

Which takes us to the heart of the demonstrations themselves, and more importantly, some of their declared aims and objectives. There were protests against SI 64 of 2016 banning imports which came into effect on July 1 2016. Then kombi drivers said there were too many roadblocks and that police were extorting bribes.

Now there is NERA and Tajamuka saying they want to force Zanu PF and President Mugabe to relinquish power.

Now Tendai Biti who won the day is not just a prominent opposition figure and a lawyer. His party is part of NERA which is pushing for more demonstrations (hopefully only those permissible by the Constitution). He knows more than an average demonstrator the ways of the law and the Constitution. He knows how leaders come by power in a democracy. They are voted in and out.

Nowhere does our Constitution legalise demonstrations to remove an elected president from power. The people alluded to by Justice Chigumba are the ultimate authority on how leaders get into power, not demonstrators. Some of the demonstrators voted for the current Constitution in 2013.

We don't believe Biti expects judges to make "brave judgments" in future in support of those who seek to unconstitutionally-remove an elected government from power through demonstrations, violent or otherwise, nor the same judges to be lenient with those who destroy property and violate the rights of others pursuant to their democratic right to demonstrate. That would certainly be careless and negligent. It's a fair deal. There is no provision for violent demonstrations in our Constitution.

You can get your pound of flesh Shylock, but no drop of blood on the floor.