Last Saturday, Zimbabwe woke up to screaming headlines that President Robert Mugabe has torn into judges over the matter in which he had been dragged to court by his erstwhile lieutenants, former Zanu PF secretary for administration Didymus Mutasa and ex-spokesperson Rugare Gumbo.
Everson Mushava
The pair is seeking nullification of the Zanu PF December congress resolutions, arguing that the constitutional changes adopted at the event were illegal, especially clauses that gave Mugabe sweeping powers.
Mutasa and Gumbo are also challenging their dismissal from the party claiming an executive that came out of an illegal meeting would not have the powers to fire them; hence their dismissal was as illegal as the congress that authored it.
The matter is now before the courts despite Mugabe once warning all the party’s disgruntled members against taking court action, but pursue internal recourse, an injuction Mutasa and Gumbo refused to heed.
But obviously miffed by Mutasa and Gumbo’s defiance, Mugabe last Friday turned the heat on the judiciary while speaking at the official opening of Africa Chrome Fields’ (ACF’s) smelting plant in Zibagwe, Kwekwe.
He said he would question the qualifications of any judge or magistrate who would agree to preside over the matter between himself and his former top allies.
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He claimed the matter did not fall under the jurisdiction of the courts as it was a Zanu PF internal matter.
Mugabe’s utterances were quickly viewed in the context of threats to the judiciary, with top lawyers saying the statements were regrettable and would actually result in Mutasa and Gumbo failing to receive a fair hearing.
“I think it’s unfortunate that the President has had to go down that route. Judges must not operate in circumstances that induce fear and intimidation.
These statements might be regarded as pre-empting the judicial decision-making process and it also puts a dent on judicial independence. If Mutasa and Gumbo’s case has no merit, let the courts make that determination,” United Kingdom-based constitutional lawyer Alex Magaisa was quoted as saying.
“But when such statements are made, it suggests that there is real fear that the case has merit and the only way to win it is to intimidate the judges. This gives a poor impression at a time when Zimbabwe is slowly finding its way back into the broader community of nations.”
Another constitutional law guru, Lovemore Madhuku, said Mugabe was ignorant of the law as there was no matter that could be said to be outside the ambit of the judiciary.
But Information minister Jonathan Moyo attacked Magaisa and Madhuku, accusing them of twisting Mugabe’s words. “It is amateurish and gutter politics for a lawyer, such as Alex Magaisa, to claim as he did that President Mugabe’s challenge to the jurisdiction of the court in Mutasa’s case is allegedly ‘in bad taste’ and allegedly ‘has a net effect of inducing fear among the judges given the position he (the President) held’,” Moyo said in a statement.
Despite Moyo’s spirited defence of Mugabe, the Zanu PF leader’s utterances could reveal a lot about the 91-year leader’s character and the party that he leads, as reflected in Gumbo’s response to Mugabe’s unprovoked attack on the judiciary.
Gumbo said Mugabe knows he would lose the case, hence the salvo on the judiciary. Gumbo said Zimbabwe was a constitutional democracy and no one was above the law, calling his outbursts sad and unfortunate.
Mugabe’s statements, Gumbo said, showed that there was selective application of the law in Zimbabwe and Mugabe views himself as someone who is above the law. He said it also reflected that justice was a preserve of a few preferred citizens, particularly those favoured by Mugabe.
“It shows that Mugabe and Zanu PF are above the law. We made our court case because we are satisfied that we will win. The courts should be allowed to decide on the merits of the case, rather than intimidating them,” Gumbo said at the weekend. “His (Mugabe) interest is in keeping power rather than respect of the laws of the land. It is, however, up to the people of Zimbabwe and the judges not to be influenced by the intimidation.”
He added: “There is selective justice in Zimbabwe. Some favoured ones always get the best justice while the worst goes to those unfavoured ones. Justice is always manipulated to suit them.” Interestingly, when Mugabe first warned Mutasa against taking party issues to court, war veteran’s leader Jabulani Sibanda was languishing in remand prison for making statements about Mugabe and his wife Grace in the raging factional fights in Zanu PF.
Following Grace’s tirade against former Vice-President Joice Mujuru, Sibanda warned Grace that “power should not be sexually transmitted.” Of course he had to pay the price – being arrested. Gumbo said Mugabe only wanted justice when it favoured him.
“He saw it prudent to have Cde Sibanda arrested over party issues and wants Cde Mutasa to pursue internal recourse?” Sibanda was arrested because his statements posed a threat to the First Family’s power and in the same vein, judges were threatened because Mutasa and Gumbo’s court case poses a threat to his power. This is not the first time Mugabe had been taken to court.
In 2013, a Zimbabwean citizen Jealousy Mawarire took Mugabe to court to force him to declare election dates to end the power-sharing government between his party and Morgan Tsvangirai’s MDC-T. Mugabe quickly said he was bound by the ruling of the courts. He did not attack the judiciary and he proceeded to win, but controversially, in the resultant elections.
Even years back during the chaotic land reform programme, Mugabe kept stone silent when the judiciary was under siege from Zanu PF supporters who invaded the Supreme Court in protest over judgements made on land issues.
Justice Antony Gubbay resigned in the ensuing melee. Political analyst Alexander Rusero said it was important to understand Zanu PF’s political philosophy. He said Zanu PF came to rule Zimbabwe through a protracted liberation war, not through a court process and that in itself shows that Mugabe would only respect the law when it suits him. “Zanu PF uses rule by law, not rule of law,” Rusero said.
He said Mugabe was facing a litmus test to respect the law as he promised when he proclaimed election dates after Mawarire’s challenge. Mugabe, Rusero said, promised that he would adhere to court process and it was not for him to declare that the courts had no jurisdiction over the matter. “He was supposed to allow the courts to decide on whether it had jurisdiction over the matter or not, not Mugabe.
Such utterances coming from a President would surely influence the outcome of the process,”he said.
Soon after independence, Mugabe promised to respect human rights and the supremacy of the Constitution, but this took a new turn at the turn of the century when his government was slammed over the chaotic land reform.
Mugabe made this controversial statement in 2002: “We will respect judges where the judgments are true judgments.
We do not expect that judges will use subjectivity in interpreting the law. We expect judges to be objective. We may not understand them in some cases, but when a judge sits alone in his house or with his wife and says ‘this one is guilty of contempt’ that judgment should never be obeyed. I am not saying this because we would want to defy judges.
In fact, we have increased their salaries recently. But if they are not objective, don’t blame us when we defy them.” Rusero added: “Mugabe’s utterances on the Mutasa court case are purely in the interest of politics, not the law. You can look at the land issue; it is unjusticeable in the country 10 years on.
“It is evident that when Mutasa was fired, the party did not follow due process. It will be hypocrisy on the part of Mugabe to say Mutasa should face the same people who fired him to fight his expulsion.
Zanu PF is facing a constitutional crisis and a legal vacuum following its December constitutional amendments.” Zanu PF changed the party’s constitution at the party’s December congress that is now a subject of a court battle. But constitutional law expert Derek Matyszak, in his latest research work titled Is the Party above the law? pointed out that Zanu PF was failing to adhere to their own constitution and that had a bearing to the way the national constitution was going to be applied.
The MDC-T has always accused Zanu PF of interfering with the judiciary. High Court judge Justice Chinembiri Bhunu in 2013 blasted Tsvangirai after he accused the judiciary of being compromised, and two years on, Mugabe’s utterances all but confirmed that Zanu PF indeed wielded unwavering influence on the country’s court process, not for legal ends, but political expediency.
But Chief Justice Godfrey Chidyausiku has already warned the media and people about making comments on issues before the courts. He said it was sad political cases were flooding the courts and warned people that the courts were not a political tribunal.
This is despite the courts previously presiding over many political matters, notably, the Mawarire election case, the war for the control of the MDC between Welshmen Ncube and Arthur Mutambara to mention only but a few.
Last year, Speaker of Parliament Jacob Mudenda referred to the court the dispute over MPs between Tsvangirai and his former secretary general Tendai Biti.
