By Farai Maguwu| The recent High Court Judgement on the MDC internal feuds has drawn massive public interest and divided opinion. Some are saying Nelson Chamisa must respect the court ruling to show that he respects the rule of law and national institutions as set up by provisions of the country’s Constitution.
Others however think the ruling was a political ruling by a politicized judiciary. They drew parallels to Emmerson Mnangagwa’s military-assisted ascendency to the presidency which the same High Court ruled to have been constitutional despite abundant evidence of military tanks having been rolled onto the streets and having former President put under house arrest for days and ultimately being forced to resign, something Mugabe himself would tell the media later. Some ministers survived assassination attempts on the fateful night
So how do we make sense of the double standards by the High Court of Zimbabwe which okayed a military coup and now outlawing the dramatic ascendency of Nelson Chamisa to the MDC presidency following the death of Morgan Tsvangirai. If the judiciary failed to interpret the National Constitution in the case of Mnangagwa whose rise violated, not just one, but several provisions of The Constitution, why would it all of a sudden read the rules to Nelson Chamisa
To understand this legal logjam, there is need to put this judgement into proper political and historical contexts. And the political context can only be understood if one goes back to 2000 and understand the metamorphosis of a once dynamic judiciary into a shadow of its former self.
Whilst all other state institutions such as the military, intelligence services, Police and public service had been politicized and ZANUfied at independence, the judiciary had remained the only institution that maintained some degree of independence until 2000.
When former President Robert Mugabe ran out of political capital due to economic mismanagement and an appalling human rights record and also as facing a calamitous electoral defeat at the hands of the then newly formed Movement for Democratic Change, he turned radical and declared war on the white farmers who seemed sympathetic to the MDC. Mugabe and ZANU PF, who had enjoyed the benevolence of the white community since independence, behaved like jilted lovers and became suicidal in every sense of the word. They regrouped the forgotten war veterans and armed some of them to deal with the MDC and the White community. Hundreds of MDC supporters and a few white farmers were killed. A revolutionary name was given to the violent land grabs – 3rd Chimurenga, meaning 3rd war of liberation. The first Chimurenga was fought between 1896 and 1898 whilst the second was fought from the early 60s to 1979. Whilst history has failed to estimate how many Zimbabweans were killed during the first Chimurenga, it is estimated the 2nd Chimurenga could have claimed as many as 50 000 lives. By naming the land grabs a war of liberation Mugabe and ZANU PF sought to encourage and justify the violence associated with the exercise. They had to strangle the law and the justice system to ensure injustice and criminality is institutionalised.
Chaos and violence characterised the farm grabs. More than half a million farm workers lost both livelihoods and shelter. Within a short space of time Zimbabwe turned from being a net exporter to a net importer of food. Most ZANU PF officials emerged with multiple farms and till now they are resisting a land audit.
The only institution that stood between order and chaos was the judiciary. When the judges ruled the violent farm invasions unconstitutional, ZANU PF threatened the judges. In about 15 months seven judges were forced off the bench by ZANU PF and replaced by those believed to be loyal to the party who went on to receive farms and benefitted from every economic – political decision that contributed to the destruction of our country, including the 2015 diabolic and criminal RBZ debt assumption bill which forced jobless and poor Zimbabweans to pay for the farm implements and finances borrowed by ZANU PF officials and their hangers-on. I must add that judges and magistrates have not been spared the effects of the socio-economic crinkum crankum brought upon us by ZANU PF where hard work, professionalism and honesty have been rendered unfashionable. Teachers and Nurses earn far far less than rank marshals, majority of whom primary or secondary school drop outs.
One of the world renowned judges, justice Anthony Gubbay, was forced to step down in 2001 after being threatened with violence by war veterans. Chinamasa, then Justice Minister, allegedly told him his physical security could not be guaranteed if he remained on the bench. Another High Court judge, Justice Michael Gillespie, who resigned and relocated to Britain, said he could not continue to serve on the bench when the conditions did not allow him to remain impartial: ‘The judges have been threatened publicly by war veterans with attacks upon, and occupation of, their homes… By this means the Executive has contrived to politicise the Bench, if not in fact, then at least in the perception of many ordinary people… A judge, finally, who finds himself in the position where he is called upon to administer the law only as against political opponents of the government and not against government supporters, faces the challenge to his conscience: that is whether he can still consider himself to sit as an independent judge in an impartial court’, he said
The capture of the judiciary between 2000 and 2002 by ZANU PF through forced resignation of judges and ‘packing’ of the bench with those considered to be politically correct has severely corroded the justice delivery system. A case in point is the 2002 court challenge by Morgan Tsvangirai where he disputed Mugabe’s victory. The High Court of Zimbabwe did not hear the case up to the time of the next election. In 2005 Tsvangirai approached the Supreme Court which reserved judgement. The petition was briefly heard by High Court Judge Ben Hlatshwayo and then put on hold…..to date. Morgan Tsvangirai has since died and three more hotly disputed Presidential elections have since been held.
Thus whilst the courts have done excellent work on cases such as child protection, rape and stock theft, they have been under extreme pressure where political cases are concerned. In fact I am not aware of a serious electoral case where Zimbabwe’s courts ruled against ZANU PF. Zimbabwe’s justice delivery system has also been found wanting when it comes to economic crimes. The government is filled to the brim with big criminals who must be languishing in prison for prejudicing the country of several billions. The liquidity crisis in Zimbabwe is artificial as powerful government officials and the ruling party are robbing the central bank at will. The Reserve Bank Governor in Zimbabwe is in reality the Secretary for Finance for ZANU PF! If Zimbabwe had a well-functioning judiciary most of our top officials in govt, both past and present, will be in maximum prison for undermining our national interests. We have scores of people who murdered political opponents and allowed to continue roaming the streets.
From time to time we also have had Judges who make very brave judgements but often there is a price to pay for the Judge or the ruling is simply ignored. I must emphasize that the problem is not the person of the judge but the Institution that has been brought under intense distress by the ruling party. This reminds me of my 5 weeks in detention in 2010. When I was finally granted bail one Magistrate told me to spare a thought for the magistrate handling my case. He said ‘don’t ever think he has anything personal against you. This matter was too hot to handle and decisions were imposed’.
I must conclude by saying ALL institutions in Zimbabwe are designed to serve the interests of ZANU PF and NOT the nation. This is why the country has been collapsing like a deck of cards in rapid fashion. Its because there are no functioning institutions. Our jails and police cells are designed to torture political opponents. Hence there is no running water in the cells, inmates are given very little, badly cooked food, no blankets, lice feast on you…they are meant to dehumanize, to torture the soul, mind and body of inmates. I remember well what Roy Bennett said when he came out of jail. He said the day he entered Prison they asked some inmates to defecate in a pair of prison garb. They then forced him the wear it whilst it was dripping with human waste. A day or two later Lawyers went to prison to check on him. The Prison officers then tried to give him clean clothes and he refused them.
And our Justice system has been conditioned to ensure ZANU PF officials do not see the inside of these torture chambers presented as prisons, unless they have crossed the path of the powers that be. Our financial system is criminal, rewarding those that do not work whilst prejudicing the hard working public who now spend long hours in banks trying to withdraw their money. They have dried up the financial system whilst stashing billions of USD in their homes. Our Police officers are NOT allowed to arrest ZANU PF officials. They have been transformed into the ruling party militia. Consequently every indicator of normalcy has died. No fuel, no water, no jobs, no electricity, potholes everywhere, buildings are decaying due to lack of maintenance. Everything is not working, simple!
To say Zimbabwe’s institutions need reform is an understatement. We need a complete overhaul of the institutions to ensure they serve the people with integrity and impartiality. For this to happen only the Zimbabwean citizens can do it by relentlessly demanding to be governed better. Our country, government and society at large need a new thinking, fresh ideas and a new social contract between government and the people. All our institutions – Police, military, intelligence services, prison services, the justice system and the entire public service need to be freed so they serve the citizen and not a political party.