By Mari Matutu | 23 April 2021
Arise and stand above the level of cowards and Ediots.
I challenge you oo citizens of Zimbabwe in all your diversities to stand up.
A judge appointed without public interview has no s162 judiciary authority. He is not a judge but a GRUDGE. Just as check drawn without sufficient funds bounces , bill number two is a bounced law. Insufficient Authority.
Put your stamp “IA”
Today as I ask you these few questions-
a) Who does not know that the courts as presided by constitutional judges, are the ones that hear and determine disputes relating to election to the office of President?
b) Who does not know that the courts as presided by judges are the ones who decide all constitutional matters?
c) Who does not know that the courts as presided by judges provide advice on the constitutionality of any proposed legislation?
d) Who does not know that Courts as presided by judges, is the one that hear and determine disputes relating to whether or not a person is qualified to hold the office of Vice President?
e) Who does not know that courts as presided by judges determines whether Parliament or the President has failed to fulfil a constitutional obligation?
f) Who does not know that the Constitutional Court as presided by judges, makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional, and must confirm any order of constitutional invalidity made by another court before that order has any force ?
g) Who does not know that the Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction?
h) Who does not know that courts must be independent and are subject only to the Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice?
i) Who does not know that the independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance?
j) Who does not know that neither the State nor any institution or agency of the government at any level, and no other person, must interfere with the functioning of the courts;
k) Who does not know that the State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness and to ensure that they comply with the principles guiding judiciary delivery?
l) Who does not know that an order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them?
m) Who does not know that justice must be done to all irrespective of status
n) Who does not know that the role of court is paramount to safeguarding human rights and freedoms and rule of law?
o) Who does not know that members of the judiciary, individually and collectively, must respect and honour their judicial office as a public trust and must strive to enhance their independence in order to maintain public confidence in the judiciary system?
p) Who does not know that Members of the judiciary must not solicit or accept any gift, bequest, loan or favour that may influence their judicial conduct or give the appearance of judicial impropriety?
q) Who does not know that every person has a right to a fair, speedy and public hearing within a reasonable time before an independent, competent and impartial court, tribunal or other forum established by law?
r) Who does not know that the current role the president is doing in the appointment of judges after public interview is a ceremonial role of as head of state in terms of s110(1) of constitution and not as an executive role which must leave the principle of separation of powers in place as directed by s3(2)(e)?
s) Who does not know that by directing the president to appoint a judge without public interview is relegating the duty to appoint judges by president to a purely executive duty just as he appoint ministers and permanent Secretaries under executive arm of state?
t) Who is blind to see that the bill is avoiding merit and transparency in the appointment of judges, yet s9 direct legislation that promote merit
?Fellow citizens having asked these a-t questions of today, which are common cause, how then do we have
i) an amendment of constitution that intend to put a constitutional court appointed by a president without public interviews yet those courts will decide his election or his decisions’ constitunality?
ii) How then do we have judges that accept a favour among all citizens, to be appointed as judges without proving competency to anyone or proving their independence nor other influence behind their appointment, become national judges that will give justice for all? Yet s165(2) still stand and forbid a judge to receive a favour.
iii) How then do we have judges who have attained retirement age, accepting a favour and benevolence of staying on a top up contract between a president and a judge? Yet that same judge has to give justice without looking at one’s status?
iv) How then do we expect competency, impartiality and independence in a person that has an appointing authority who is part of disputes that come before his/her court everyday? Yet they want to appoint without interviews or public involvement?
v) How then my fellow citizens, do we expect freedoms, rights and rule of law, to be upheld when the wish, judgement or decisions of one person in the name of president, consulting another lot he would have appointed or has been appointed by his stooges by the name Judiciary service Commission, is all what shall run our judiciary. Yet judges have to be competent.
vi) How do we expect presidential elections petition hearings to be impartial when one person has staffed 7 people of his own choice on the bench disguising as a court? Yet election have to be free, fair and credible.
vii) How then my fellow citizen, do we expect to challenge the constitutionality of decisions of president when the same president has staffed 7 individual masquerading as judges on the bench? Yet a court has to be impartial.
viii) May I further ask you this, how does a judge who never went before public either to apply for the post, be nominated from universal set of citizens, or tested of his or her competency through interviews suddenly hold “Public Trust”? Yet s165(2) talk of PUBLIC TRUST.
ix) Where does that “Public Trust” originate from? Yet s165(2) still stand stating that judges have to have public trust.
x) Where is the public or their trust when they are not involved in the process. Yet they want to appoint without public involvement.
xi) Should that same clause not be changed and state the trust they hold in exercising the new role. Not my trust. Yet I am part of public being bared from the selection of such judges
xii) Who in the whole process is regarded as public, who then confers that which a judge must honour as public trust as Principle in terms of s165(2)? Fellow citizen even if a dog has canines, it does not use them against one that feed it. The canines are best used to crush the bones of what the master throws before its feeding trough.
xiii) How does an individual appointed in the name of president’s trust and judgement on who to appoint suddenly become “Public Trust”?
xiv) If s177(1) still state that “a person is qualified for appointment as a judge of the Constitutional Court if he or she is a Zimbabwean citizen, is at least forty years old and has a sound knowledge of constitutional law.” I must then follow that a President has to be a person with sound knowledge of knowing how to test and detect a person with sound knowledge of constitutional law or have sound knowledge of constitutional law himself. How the president’s own sound knowledge of constitutional is tested is another issue but no one can deny that Constitutional Court is a Specialised Court where expertise is of paramount importance. Yet competence is a requirement.
As I have lodged my own questions to you, challenging your conscience and emotions, I believe you may have your own questions too. The more question we all have, the more responsibilities we have as citizens in terms of s35(4). Stand up or they stand on you.
As I conclude and give you confidence that 2013 constitution was the best reform we had, It is upon us as citizens to exercise our political right in s67(2)(d) to resist and refuse an unjust and unlawful bill.
Your resolve is in s86(3)(e) which I quote as whole
“No law may limit the following rights enshrined in this Chapter, and no person may violate them—
(a) the right to life, except to the extent specified in section 48;
(b) the right to human dignity;
(c) the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;
(d) the right not to be placed in slavery or servitude;
(e) the right to a fair trial;
(f) the right to obtain an order of habeas corpus as provided in section 50(7)(a).”
All we need is to prove from the a-t questions, that are common cause, if a fair trial for election of president dispute, or decision of a president, or human violation by state institutions, can be tried fairly by judges who are appointed by president without public interviews?
The obvious answer is no fair trial, because before the matter is heard the incumbent president has 7 people who he trust and have a duty to please the appointing authority.
It is clear that Supreme Court is the highest final court that decide all disputes that do not relate to constitution but equally so, their decisions are final and leaves us all without remedy. The stooges shall decide in favour of interest of appointing authority. Just as what Chinese are doing in Hwange. They are serving interests of individuals and they drill holes on graves of citizen’s beloved ones. If a judge is to preside over such a case after being appointed without interview, what will be the difference between him and the Chinese as they are both appointees of one person?
As s86(3)(e) states that no law can limit or violet right to fair trial as is enshrined in s69, all we need is to challenge by way s67(2) and put it bare that
i) a judge appointed without public involvement has no s162 judiciary authority and is not a judge but a grudge,
ii) Without interview we cannot prove competency yet competency of a judge is an ingredient of fair trial,
iii) Without advertising to public and allowing all citizens to apply, or nominate without anyone being refused chance, there is no way we can prove independence of whoever is appointed as judge. Yet independence is an ingredient of fair trial
iv) By having a single person appointing 7 judges that seat on a bench to decide if his decision or his election is constitutional, there is no way impartiality can be achieved. Yet impartiality is an ingredient of fair trial
v) If being appointed to be a judge of Constitutional Court or Supreme court without going through interview or having your contract extended by a president after attaining 70 is not a favour or a privilege, then our Cambridge or Oxford dictionaries must find some other definition to suit the new version. Yet it is by principle in s165 that judges must not receive favours.
vi) If merit has fallen from the favour of legislature such that they all ignore section 9(1)(a) which I shall quote
“The State must adopt and implement policies and legislation to develop efficiency, competence, accountability, transparency, personal integrity and financial probity in all institutions and agencies of government at every level and in every public institution, and in particular—
(a) appointments to public offices must be made primarily on the basis of merit;”
Then where else shall s9 ever work and is going to enforce the compliance of appointment by merit when the specialised court of the constitution is staffed with dubious characters who never proven any competence to anyone.
vii) How then can we say the legislature who sat and debated or voted for this bill were promoting and upholding constitution or even representing the interest of any of us?
As we get to 15 May 2021, there shall be no Constitutional court Judges with our authority, No Chief Justice or Deputy Chief Justice with our authority. Yet s162 is clear that the Judiciary authority is derived from us and vested in courts as listed in the provision, as the composition of Constitutional Court, Supreme Court and High Court is mentioned in sections 166, 168 and 170 respectively.
As at 15 May 2021 those courts will not be properly and constitutionally constituted. We must stand up and say what ever is done by who so ever is null and void as s2 states and it is without our authority.
As we all now know that after the lapse of 7 years from 2013, authority of Judges of Supreme Court Acting as Constitutional court ended in May 2020.
We do not have any Constitutional court as we speak and all these issues cannot be resolved by any court because there is no court in place.
It is word against word. The matter has been put into our hands by s35.
Do not be intimidated by Parliament processes or words like amendment of constitution. They can only exist if you give them room. Just like a woman can choose to call someone who rapes her as her husband.
I refuse. What about you
BBT Mari