Brenna Matendere

The Zimbabwean judiciary is compromised due to State capture, and needs an overhaul, says Alex Magaisa, a UK-based law expert.

He was a panellist at a virtual dialogue convened by the Southern Africa Political Economy Series Trust (SAPES) Thursday evening.

The debate ran under the topic: Judicial Capture in Zimbabwe: Myth or Reality.

Judges are being whipped to produce decisions that favour the executive, Magaisa averred.  

That the bench has been making unanimous decisions—with hardly any dissent—shows that the judges are being manipulated, said Magaisa.

“If you look at the Zimbabwean situation, you will have to struggle to find a case where there is a dissenting judgment. It’s not by accident; it’s a pattern,” said the Kent University law lecturer who advised the late former Prime Minister and opposition Movement for Democratic Change (MDC) leader, Morgan Tsvangirai.

In 2018, the Supreme Court unanimously threw out a challenge by Nelson Chamisa, the MDC Alliance president who was contesting his loss to President Emmerson Mnangagwa at the July elections.

Chamisa, the bench argued, failed to avail the necessary evidence to prove electoral fraud.

Opposition supporters had previously poured into the streets as the results of the harmonised elections were being announced, prompting the army to deploy in conjunction with the police and killing several people, according to a subsequent inquiry led by ex-South African president, Kgalema Montlante.

In March year, the bench concurred that Chamisa had ascended to the presidency of the MDC illegitimately and ordered a new party congress to choose a new leadership.

Chamisa and his sympathisers maintain that the decision was meant to weaken the young opposition leader who narrowly lost to Mnangagwa, the current president who was installed by the army following a November 2017 military coup.

The bench, which the president participates in choosing, was also unanimous in ruling that the army-supported removal of Mugabe was not a coup.

The army rolled out tanks during the forced takeover, reportedly held Mugabe hostage until he resigned as parliament had already set off an impeachment process and took control of the State broadcaster as well as the then Harare International Airport.

Mnangagwa was the chief elections officer for the late ex-president Robert Mugabe during three presidential polls that some believed he lost to Tsvangirai but rigged.  

In the run-up to the coup, Mnangagwa skipped the border for South Africa fearing for his life when Mugabe accused him of rebellion and as the current president’s foes were reportedly mobilising law enforcement agents and the judiciary to arrest and prosecute him as punishment.

Another panelist at the dialogue, Thomson Chengeta, an international law expert said sitting establishments must promote the independence of the judiciary as it would also protect them when out of power.

“We remember the case of the current president. When he had misunderstandings with the late Mugabe, he had to flee the country. However if he trusted the country had an independent judiciary, he could have sought remedy at the courts,” he said.

Magaisa accused the judiciary of selective application of the law and cited cases in which the courts have invariably denied government critics bail.

Such critics include journalist Hopewell Chin’ono and Job Job Sikhala, of late.

On the hand, individuals seen to be aligned to top government officials and the ruling Zanu PF has been speedily granted bail despite facing serious charges.

As a remedy to the capture of the judiciary by the executive, Magaisa said, the public law system must be overhauled.

“Some people may say let’s re-train the judges. But it is not a matter of putting them in a class for lectures. The matter is political. The judges are influenced by the political climate existing and an overhaul will be the best way to regain judicial independence,” he said.

Magaisa accused the executive of bribing the judiciary, which over the years has been receiving lofty benefits like farms, agricultural equipment, expensive cars and monetary perks.

Judges who have handed down decisions unpopular with powerful politicians have been victimised.

At the height of the accelerated land redistribution programme in the early 2000s, ex-president Mugabe relieved all the white judges of their duties on suspicion that they could support the displaced commercial farmers.