Below is a transcript of the live debate in parliament during the day as Zengeza MP, Job Sikhala together with Norton MP Temba Mliswa took the minister of Justice over interference in the judicial system by Chief Justice Like Malaba.
The embarrassing matter was also briefly discussed 6,000 miles away in the British House Of Lords.
It was today established with the minister that Malaba has truly interfered with the judges of the Supreme and High Courts.
HON. SIKHALA: My question is directed to the Minister of Justice, Legal and Parliamentary Affairs. My question today is specifically about justice and not parliamentary and legal affairs. In line with Section…
THE HON. SPEAKER: Order. You cannot remove the full title of the Hon. Minister which has been constitutionally given to him – [Laughter.] – You have no authority to do that.
HON. SIKHALA: It is alright Mr. Speaker Sir. My question is directed to the Minister of Justice, Legal and Parliamentary Affairs. In light with Section 164 of our Constitution that guarantees the independence of the Judiciary in our country; what is your Ministry doing vis-a-vis issues of interference and judicial capture that are currently being raised by judicial officers in our country? What is your Ministry doing to reassure both the public and also members of the judiciary that our country will continue upholding the independence of the judiciary?
THE HON. SPEAKER: Hon. Sikhala, your question is on a knife edge. It was not explicit.
HON. SIKHALA: My question to the Minister of Justice, Legal and Parliamentary Affairs…
THE HON. SPEAKER: Can you be linked please?
HON. SIKHALA: Am I not connected Mr. Speaker Sir?
THE HON. SPEAKER: No you are not. You are now connected.
HON. SIKHALA: Issues that are being raised concerning the interference of the Chief Justice Luke Malaba on how to deal with officers and other judges of the superior court in our country has become a matter of national concern in as far as the independence of the judiciary is concerned?
THE HON. SPEAKER: What is the question?
HON. SIKHALA: What is the Ministry doing so that judicial officers remain independent and their roles are not interfered with?
THE HON. SPEAKER: Hon. Sikhala seems to be repeating something that is before the courts.
HON. SIKHALA: Not that one Mr. Speaker Sir. I am talking about the memo that was written by the judges of late.
THE HON. SPEAKER: This is why I had said you should be clear.
HON. SIKHALA: Not on that issue that is before the court…
THE HON. SPEAKER: You are talking about a memorandum.
HON. SIKHALA: Yes.
THE HON. SPEAKER: That is clear now.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I will respond broadly and then go to the specific request that Hon. Sikhala has asked. Our Constitution guarantees the independence of the judiciary officers. In so far as they are dealing with specific cases, even the Chief Justice cannot interfere with whatever they are doing, be it a judge or a magistrate. That is enshrined in the Constitution. There are also several provisions that insulate our judicial officers so that in the exercise of their duty they must feel safe from whatever victimisation that they may encounter. It also extends to the provision regarding their removal – where the President would be requested to set up a tribunal to investigate that question against specific parameters. You cannot just wake up and say I do not like Justice so and so and a tribunal is set up. Certain requirements have to be satisfied.
Coming to the so called memo, I have not seen the memo and I would like Hon. Sikhala to favour me with that so that I can study it and see how it is interfering with the functions of our judicial officers. I thank you.
HON. SIKHALA: Thank you Mr. Speaker Sir. My supplementary follows also on the same route of the independence of the judiciary. What is the Minister’s view vis-à-vis the special projects office being manned by one Thabani Vusa Mpofu in the Office of the President and Cabinet whose rule is to interfere with the functions of the judiciary both at lower courts and superior courts?
THE HON. SPEAKER: Hon. Sikhala, will you favour the Minister with a copy of the memo in due course?
HON. SIKHALA: I will favour him with the memo Mr. Speaker Sir.
THE HON. SPEAKER: Thank you.
HON. ZIYAMBI: Thank you Mr. Speaker Sir. Firstly, my personal opinion does not arise when I am executing my duties. I am guided by the parameters that I am supposed to follow, the Constitution and the laws of Zimbabwe. Again, if the Hon. Member feels that there is interference in so far as the functioning of the judiciary is concerned, he can favour me also again with whatever interference he feels is being done. As far as I am concerned, the judiciary is so much independent to do whatever they want and I cannot even interfere with their work myself. I thank you.
HON. T. MLISWA: Mr. Speaker Sir, to be specific it is the Special Anti-Corruption Unit which has been given the mandate to investigate and prosecute, yet in the Constitution those powers are given to ZACC and to the Prosecutor General and the ZRP. From a constitutional point of view, where does the Special Anti-Corruption Unit fit? Which section of the Act? We would like to know because they are acting illegally. The three institutions I have mentioned are the ones which should do that in the Constitution…
THE HON. SPEAKER: Order, order. Your question has gone into some quagmire because it is not related at all to Hon. Sikhala’s question on the independence of the judiciary and some referred interferences – [HON. MEMBERS: Inaudible interjections.] – Order! That is a different question alltogether.
HON. T. MLISWA: Hon. Sikhala mentioned and we can check the Hansard, the name of Thabani Vusa Mpofu. He is the one who is heading the Special Anti-Corruption Unit. That is where I am coming from. He mentioned that name and his role is head of the special anti-corruption unit. That is how I brought it in. I do not know if that makes sense.
THE HON. SPEAKER: No, it does not. What you need to have done is to indicate to the Hon. Minister what extent the gentleman concerned is interfering with the judiciary.
HON. T. MLISWA: This is why I said, in the Constitution, the Special Anti-Corruption Unit is not there. So it is interfering. It is ZACC which can investigate the ZRP and the Prosecutor General’s Office. That is where I am coming from. I am coming from a very constitutional manner and I do not think there can be any better explanation than that. It is not there in the Constitution. That is why I am saying the role that he is playing, where is it in the Constitution…
THE HON. SPEAKER: Order, order. That is a different fundamental question.
HON. T. MLISWA: I will ask it with your indulgence. Thank you.
THE HON. SPEAKER: You are not demonstrating to the Hon. Minister. The question of interference with the independence of the judiciary – that is where I am coming from.
HON. T. MLISWA: He is interfering because he is arresting people and investigating them when he has no mandate constitutionally. I do not know if you now understand me. So that is interference.
THE HON. SPEAKER: No, the judiciary does not arrest the people. So, there is no connection. I want a connection raised by Hon. Sikhala that there is interference with the judiciary.
HON. T. MLISWA: I stand guided. I will ask this it as a question.
HON. B. DUBE: Thank you Mr. Speaker Sir. My supplementary is following up to what Hon. Hon. Sikhala asked the Minister, to what extent does the Ministry consider the implications of the now withdrawn circular which had been directed by the Chief Justice which was more like revising or approving judgments before they are out, especially taking into account that the chief justices of Africa had to also write a memo to that effect. How is the Ministry guaranteeing us on that aspect?
THE HON. SPEAKER: Alright, I got it Hon. Dube. The difficulty of the Chair is that you are now chasing a moribund memo which the Hon. Minister had requested. How can we chase after a dead donkey? We cannot – [HON. MEMBERS: Inaudible interjections.] – Order, order. Hon. Sikhala, what you need to do is you do not speak and address the Chair while you are seated. You rise and you are recognised and you seek clarification.
HON. SIKHALA: I am saying this Mr. Speaker Sir is that the question which was asked both by Hon. Mliswa and Hon. Dube are fundamental because they touch the core and root of the independence of our Judiciary. Can I seek your indulgence that the Minister gives us –
THE HON. SPEAKER: Order, please do not mislead the House. Hon. Mliswa has admitted that his question is fundamentally different –so no reference to it. Stick to the clarification that was raised by Hon. Dube.
HON. SIKHALA: Mr. Speaker, the memo that I gave reference to is partially not related to the one Hon. Dube gave reference to. The one that I am referring to is the one by our own Judicial officers but the one which Hon. Dube referred to was a memo by the Chief Justice of Africa to our Chief Justice when he gave a directive that all judges must submit all judgments before delivery to him to which the Chief Justice of Africa had to intervene to say this is an assault at the root of the core of the independence of the Judiciary. That is the one which Hon. Dube was referring to.
THE HON. SPEAKER: So which one was withdrawn?
HON. SIKHALA: That memo which the Chief Justice has given directive to judicial officers.
THE HON. SPEAKER: That is the one you were supposed to give to the Hon. Minister.
HON. SIKHALA: No, that is not the one. The one that I am talking about is the one by our own local judicial officers – but Mr. Speaker, I would beg that if the Hon. Minister will do us a favour to give us a written Ministerial Statement on the state of the Judiciary so that we will be able to extensively enquire on some of those things that we want to understand as the House.
THE HON. SPEAKER: You mean on the independence of our Judiciary?
HON. SIKHALA: On the independence of our Judiciary.
THE HON. SPEAKER: Alright. You are still going to favour the Hon. Minister with that memo.
HON. SIKHALA: Yes, I will do that.
HON. ZIYAMBI: Mr. Speaker, my duty as the Minister is not to supervise the Judiciary insofar as how they conduct their work. I give policy directions and whenever they have internal memos, I do not vet them; neither do I request for them, but from what I got from Hon. Dube there was a memo by the Chief Justice which the Chief Justice eventually withdrew. So if he withdrew the memo there was some acknowledgement of error by the Chief Justice and I am not sure why he still wants to pursue a dead donkey, so to speak. I thank you – [HON. SIKHALA: Its impact on the independence of the Judiciary. The Judiciary is all about the confidence of the Judiciary outside.] –