By Simba Chikanza | The below is a full (part 1) response to a senior lawyer who slams calls for the magistrate Bianca Makwande to be investigated.

• – JUDGES CANNOT INVOKE JUDICIAL IMMUNITY FOR ACTS THAT VIOLATE CIVIL RIGHTS.
• – PROTECTING THE MAGISTRATE FROM CRIMINALS.

Hello Advocate P***********. Thank you for your comment regarding the story of the magistrate who imprisoned the three UN protected victims of torture, Cecilia Chimbiri, Joana Mamombe, Netsai Marova. I am very open to criticism – I know that, yes, what I did is (deemed) unconventional and could be unethical in other contexts. Yes it could certainly damage the girls’ case, if there was one. If there is one that exists, it has already been damaged, and marred beyond recovery, by well known institutional criminals. This is no longer about the law, its practice or judicial procedures, it is now about an abuse of the court systems to torture three civilians. Someone is using the respected judicial systems to extenuate torture, already investigated by UN experts.

Judging me on theory basics of law, of course, you can strike the sharpest decibels and win.

On practicals, however, my question is – why did you not make a similar complaint about the state case, that is, the denial of bail plus the circumstantial context of the case? Why not raise concerns about the subjudicial boasts by their natural oppoment Emmerson Mnangagwa that he controls all the institutions in the country, beyond the ethereal? Why did you not raise similar concerns on Mnangagwa boasts that he will use the state security to undermine judicial processes?

If a magistrate at Rotten Row was to rule that a person appearing before them is now sentenced to death with a firing squad, because they are from the MDC Alliance party, you would keep quiet and do nothing about such a violation of both the constitution and the laws of Zimbabwe? The girls’ case is worse than that of a firing squad.

As a professional, I feel you should also raise your expert equal voice on these. After that I am strongly persuaded that you will discover the identities of certain criminals who are right now bending our institutions and soling our courts. As regards torture, judges and magistrates must know that one day they will answer for their personal actions.

I am a proponent of qualified immunity and in Zimbabwe’s case, those who advocate for absolute judicial immunity say that a judge/magistrate’s immunity must remain absolute because there are remedies, in that the case can be escalated to a higher court. But in Zimbabwe’s case there is none such, and everything is in the hands of a member of the executive who even boasts so. It is in this light, that I interrogate the magistrate, and say her options for immunity have been exhausted.

Those who call for qualified immunity discount the assumption that it would precipitate a flood of litigation. They maintain that decisions that judges typically make will seldom be litigated, as appellate review will satisfy most litigants. However, in the rare circumstances where a judge abuses her authority and someone is injured, these supporters contend, it is only fair to qualify a judge’s personal immunity. They argue that the removal of absolute immunity would, over time, deter judicial abuse: judges would not be intimidated, but they would be more careful to safeguard the rights of all parties.

PROTECTING THE MAGISTRATE FROM CRIMINALS

One could say Simba, you should uphold and respect judicial immunity, you are exposing the magistrate to abuse, but I am in fact doing the opposite, I am actually working to protect the magistrate. She is not safe because her immunity has been reproached by Emmerson Mnangagwa who in Feb 2019 announced he’s unleashing the state security to destroy the legal/ judicial system. Her personal life, her job, and the entire court system have become soiled.

Speaking at Mwenezi as he added to his announcement that all institutions are branches of his political party, ZANU PF, Mnangagwa said the state security will target the nation’s judicial systems and processes, by attacking the lawyers and doctors.

“Those who have been arrested they will approach lawyers, waiting to deploy judicial systems of defence… All those systems we shall pursue and attack…

“Hallelujah to those who choose peace and may their days be increased in the land ruled by black people. But those who chose to demonstrate their days will be shortened (shrunk).”

Mnangagwa is clearly coming after all officers of the court and the magistrates and judges need to be protected. Our courts need to be restored.

REFERENCES:

Block, Frederic. 1999. “Qualified Immunity: A View from the Bench.” Touro Law Review 15 (summer).Duffy, Shannon P. 1999. “Judges Have Absolute Immunity for Actions on the Bench, Circuit Rules.” New Jersey Law Journal 157 (September 27): 7.

Morgan, Thomas D., and Ronald D. Rotunda. 1993. Professional Responsibility: Problems and Materials. 5th ed. Westbury, N.Y.: Foundation Press.

Romo, Cheryl. 2002. “Jurist’s Infamous Case Set Judicial Immunity Precedent.” The Los Angeles Daily Journal 115 (December 30)