By Dr Masimba Mavaza | Just towards the new year a document which was aimed at attacking our judiciary system was circulated. The author of the document was none other than the suspected Baba Jukwa Mr Edmund Kudzai. Edmund is a prolific writer who came to fame during the baba Jukwa time. He was arrested and his trial did not see the end of day. Many questions were raised as usual no answers.

The documents which were circulated this time were meant to soil the judiciary.

The bone of contention was based on the Mashwede case. This case is now a case of public record so it can be discussed here.
The document making rounds is fully sponsored by one
Tendai Shamhanda who is a lawyer and the son to Mashwede from Chivi Masvingo. The Mashwede own many shopping malls in and a round Harare. This family tried to build a service station at matapi police station and they abandoned their plans. At one stage Mashwede stood as MDC candidate.
As for this case which is being used vilify the judiciary Mr Mashwede bought a piece of land otherwise referred to as a Stand in our normal talk. This piece of land was bought from a deregestered lawyer Piwai Chiutsi who had issues with Trust Fund complained by one Rodgers Now based in UK. Chiutsi was sued by Biti Law Chambers resulting in that judgement. The house which despite being under judicial attachmnt was quickly changed tittle deeds. Meanwhile the Sheriif sold this property to another person resulting in the case going to court. Justice Chitapi endorsed Shamhanda through a default judgement. The other party’s effort to reverse dd not succeed. Justice Matonsi also handled it dismissing the challenge by Chiutsi. Then an appeal in the Supreme Court dismissed Chiutsi’s Sale and confirmed the sale by the Sheriif. This was before 3 judges of the Supreme Court. Chiutsi came back to High court applying for a reconsideration of the case In the meantime Biti s cleck Chaza was being prosecuted for a fake power of attorney from Rodgers and unauthotised representation. He excepted to the charges and the magistrate ordered ammendnt which was never done. They however proceeded with the case and the accused applied for review. The judgement in the application for review has since been reserved by a high court judge sitting in Harare.
Now Shamhanda Mashwede’s son has become the complainant. In a bid to confuse the judiciary system they made several applications The other application was later withdrawn after the comedian advocate was quizzed by a judge. The advocate kept going in and out of court to get instructions presumably from one Everson Samkange who is the author of the mantra judges are compromised.
In any civilised and progressive jurisdiction the judicial system, the judges and judicial decisions must be and are subjected to rigorous scrutiny. A system that has such an impact in people’s lives and indeed in the socio-economic development of a nation cannot be sheilded from constructive criticism.
However, there is a world of difference between, on the one hand, constructive criticism of an institution and outlandish attack and abuse of the same.
The reason why it is always important to respect our judges is because Judicial misconduct breaks down the very fibre of what is necessary for a functional judiciary- citizens who believe their judges are fair and impartial.  The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be accountable to legal and ethical standards. In holding them accountable for their behaviour, judicial conduct review must be performed without invading the independence of judicial decision-making. This task can be daunting.
More than any other branch of government, the judiciary is built on a foundation of public faith-judges do not command armies or police forces, they do not have the power of the purse to fund initiatives and they do not pass legislation.  Instead, they make rulings on the law. Rulings that the people must believe came from competent, lawful and independent judicial officers.
For an individual to start casting aspersions to judges is contempt at its best.
The difference between legitimate scrutiny and grotesque abuse lies in the motive of the act.
Those engaged in constructive criticism are a help to the system. Those who just abuse are a hinderence. The former is motivated by the desire to improve the system in the best interest of the nation and for posterity. The latter is motivated by supremely selfish interest culculated to redicule, bring into disrepute and undermine the system.
In this case we have a man blemishing the image of the judiciary and making incindiary and inflamatory allegations of corruption based on alleged bad decision in a single case.
Examining the individual merits of this case is not the issue. In fact doing so would be complicit to the accusor’s insanity. We accept that in every jurisdiction judges may get devisions wrong. This is unsurprising because they are not supper human.
Let us therefore assume, for the purpose of this arguement, that the Supreme Court , which is the final arbiter, got its devisio wrong, it woukd still be a far greater wrong for the Lower Court of Justice Chitapi to purport to overturn the decision of the Superior Court. In fact it is arlaming that Mr….’Mashwede s lawyers, who would have known better, made an application to the Lower Court to upet the decision of the Supreme Court. Therefore what really smacks as corruption is not “the wrong” decision of the Supreme Court (assuming it was wrong for the sake of argument). What is really dangerous is the audacity of the officers of court and a judge to ignore constitutional implications of their perilous actions and to even have the temerity to insult the judicial sysyem. Even if there was a Supreme Court error ( which is denied anyway) what we must be concerned about is the constitutional anarchy which these lawyers and a single judge (Justice Chitapi)engineered.

Judging involves the exercise of judgement. Inevitable there may be a mistake. The one thing which we all want is constitutionality and order. When Mr. Mashwede took his case to Justice Chitapi, it was not an appeal, for that course of action is not founded in our constitutional arrangement and neither is it in the Court ‘s Procedure Rules. Effectively the action amounted to an approach in the dark, outside the law and outside the rules and outside constitutional practice. In intertaining such a case before hin, Justice Chitapi forfeited the garment of legitimacy. If a judge ventures into things like that, it is clearly not out of error. All the parties involved would have known that Justice Chitapi had no power or jurisdiction to entertain an application arising from a decision from the Supreme Court. The first question that a judge in Justice Chitapi’s case would have asked is “Why is this matter before me? On what basis do you say I have jurisdiction over it?”
Judicial misconduct comes in many forms and JSCZ ethical standards address problematic actions, omissions and relationships that deplete public confidence.  Common complaints of ethical misconduct include improper demeanour; failure to properly disqualify when the judge has a conflict of interest; engaging in ex parte communication and failure to execute their judicial duties in a timely fashion.
WHAT THE AUTHOR of the flam story document must know that Behaviour outside of the courtroom can also be at issue. Judicial conduct oversight should not attempt to regulate purely personal aspects of a judge’s life.
Allegations of corruption have been made without even an attemot to substantiate them. Corruption implies a state of mind. In this case it is implied that the Supreme Court corruptly received or at least acted on a promise of a reward to make their decision. There is no attempt to say even begin to point out how this defamatory conclusion is arrived at.

Admittedly there are instances where the nature of the decision is so outrageaous that the only reasonable inference is that it was driven by corrupt entrapments. There is nothing in this case, even assuming that the decision was wrong, to cause any reasonable inference of corruption.

Zimbabweans must avoid the wanton acts of demonising the judiciary and finding it fashionable to smear and bash judges . Some are doing it for peceved political milege; others do it to sell social media articles. All this is not only cheap and pathetic but it is fundamentally dangerous.

It is dangerous because every country needs the judiciary even if no country has one that gets 100, percent of its decisions right. We need the judiciary because it is the defender of the weak as well as of the powerful. It is our bulwark against crime. It is our solace against injustice. Those who are undermining our judiciary are advocates of anarchy and lawlessness. It is unwise to try to invalidate the judiciary through spurious and malicious allegations. On a personal or individual level we will all have injured, robbed or molested friends and relatives. We will therefore have times when we will need the same judiciary that is being undermined to function and function well.
During the liberation war the Rhodesian judiciary worked under and were enforcing severely draconian legislation. It is important to note that liberation movements at the time never sought to malign or undermine those judges. This is because those mavens had the sense to distinguish between the government of the day and the judiciary. That cannot be said of the opposion in Zimbabwe today.
In fact after independence judicial personnel were retained and those who wanted to continue to serve the country and after independence did so freely.

The abuse of the judiciary must stop and stop now. It is the higjest order of corruption that threatens the fabric of our society. Those who indulge in it must be ashamed
The documents making rounds attacking Supreme Court judges and high court judges are a well calculated ploy to soil the judiciary. The judiciary must be respected and protected.
The behaviour of Mr Kudzai is misconduct by engaging in personal behaviour that calls the integrity of the judiciary into question. Furthermore, it must be done with minimal risk of unlawful intervention by forces trying to prevent unpopular, but correct, rulings on the law.
It behoves the judiciary to support measures that hold it accountable. While the majority of judges serve with honour, ethical missteps should be corrected, and major breaches of trust should be acknowledged.
To quote former United States President Theodore Roosevelt: “No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favor.”  The judges who administer justice in our countries must be seen as ethical and subject to meaningful correction when it is necessary. Nothing less than the rule of law is at stake.
The idea of trying to force the judges to make rulings which favour the rich is criminal. It is sad that some senior officers are using their proximity to the president of the country in order to arm twist the judges. The judiciary must not be controlled by one person who thinks that he is untouchable and can approach any senior person in the government.
Mashwede has developed the piece of land. But no amount of money should correct the wrong. The property was bought illegally and contemptuously. This must not be used to control our judiciary.The sale by Chiutsi needs investigarions. Hours I abused the law and used it to con Mashwede but that does not make Mashwede right. There was a counterclaim for perpertual silence which he dd not present heads of arguments cz he has done no less than 20 applications on the same issue. Law society was also a party to these proceedings. With or without name Biti Chiutsi is on the wrong side. Supreme Court made a finding that the tittle deeds were fraudently changed resulting in the dismissal of some staff members. It is sad that a judge tried to upset a Supreme Court decision when he is in a lower court.

Looking at this case on the round the Supreme Court must take notice of the document by Mr Kudzai , and ask him to justify his statements about the judiciary.
‘When historians in future look back to see how democracy and judiciary has been destroyed in Zimbabwe even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, if no action is taken against Edmund Kudzai and Mashwede and all those aiding for his monies to demonise our judges.
The Court must find them guilty of committing criminal contempt of court.
What is contempt of court?
Contempt of court basically means disrespecting the court in any way. In zimbabwe you can be punished by the court if you disrespect the court or show contempt towards courts.
Criminal contempt is exactly what Baba Jukwa has done.
Criminal contempt of court happens when you disrespect the court by publishing anything or doing something that:
lowers the authority of any court influences or interferes with any judicial proceeding (like a legal case being heard by the court) obstructs the judicial process in any other way. It is true that a citizen has the right to freedom of speech and expression under our Constitution. So, a citizen is allowed to make a fair criticism of a judge, judiciary and its functioning. If a constructive criticism is made in order to enable systemic correction in the system, the Court will not look into the issue of contempt.
However, the right to speech has certain reasonable restrictions, and an attempt has to be made to properly balance the right and the restrictions. if a citizen exceeds the limits and makes a statement which tends to scandalize the judges and institution of administration of justice, such an action could be considered as contempt of court.
Furthermore if a citizen makes a statement which tends to undermine the dignity and authority of the Court, or a statement which tends to shake the public confidence in the judicial institutions, this will come within the scope of ‘criminal contempt’.
When a statement is made against a judge as a ‘judge’, and which has an adverse effect in the administration of justice, the Court can look into the issue of contempt of court.
Our justice system is the envy of the world. We have an outstanding independent judiciary that is widely admired as an international leader. Our lawyers have a global – and deserved – reputation for excellence.
We are right to be proud of our legal system.

But we must not allow the Baba Jukwa madness to taint our judiciary. The bigger picture by Kudzai is to discredit our judiciary so that we can not count on them should elections spill into court.