HARARE High Court judge, Justice Priscilla Chigumba, yesterday declared that the country’s judiciary operates independently and must be allowed to function without fear, favour, prejudice or interference by other arms of the State.
BY CHARLES LAITON/OBEY MANAYITI
Chigumba made the remarks as she trashed a ban on demonstrations imposed by police in Harare last week.
The judge’s ruling came after President Robert Mugabe last Saturday described as “negligent and reckless” for judges to sanction political demonstrations against his Zanu PF government.
“Judicial authority is enshrined in Section 162 and 164 of the Constitution. Courts are independent and must act without fear, favour or prejudice,” she said.
“It is essential to the rule of law that courts operate without interference in a democratic society.”
In her ruling, Chigumba also ordered the police to follow proper procedures required in coming up with a statutory instruments in order to enforce any prohibition orders.
Chigumba’s decision to lift the ban follows an urgent court application filed by opposition parties under the National Electoral Reform Agenda (Nera) banner, Democratic Restoration Assembly (Dare) leader, Gilbert Dzikiti, Harare resident Stanrick Zvorwadza and the Combined Harare Residents Association (CHRA), where they challenged the legality of Statutory Instrument 101a of 2016.
- Chamisa under fire over US$120K donation
- Mavhunga puts DeMbare into Chibuku quarterfinals
- Pension funds bet on Cabora Bassa oilfields
- Councils defy govt fire tender directive
Keep Reading
The application was in response to police officer commanding ZRP Harare central district, Chief Superintendent Newbert Saunyama, who had issued an order purportedly under the Public Order and Security Act (Posa), which was gazetted on September 1, 2016, as Statutory Instrument 101a of 2016, banning protests in central Harare for a two-week period running until Friday next week.
But, Chigumba said Saunyama, Police Commissioner-General Augustine Chihuri and Home Affairs minister Ignatius Chombo, had no authority to pronounce the statutory instrument imposing a ban on protestors.
“Statutory Instrument 101a, is, hereby, declared invalid and the declaration is suspended for seven days in order for the respondents to rectify the invalidity,” the judge said
The judge further said at the expiry of the seven days, the respondents would be expected to notify the applicants, through gazetting, publishing in local newspapers and inviting interested parties to also submit their input after explaining to them the reason why the ban on demonstrations would be necessary.
Chigumba said in the matter before the court, the police’s conduct was not impartial and fair, as Posa procedures and requirements were not followed, adding the protestors’ rights were violated.
In his submission, human rights lawyer, Tendai Biti, who represented the applicants, said Zimbabwe was not Syria, Mogadishu or Juba that it needed such laws to curtail terrorism attacks.
Biti said there was nothing in the country’s Supreme law allowing Saunyama to “simply wake up on the wrong side of his bed” and pronounce a statutory instrument.
“There is nothing authorising the officer (Saunyama) to make this law,” he said, adding it was only Parliament that had the right to make laws.
Before the ruling, the Attorney-General’s representative, Happy Magadure, tried to convince the judge that the matter was not urgent, adding the High Court had no jurisdiction to entertain the case, but his submissions were thrown out.
Addressing journalists after the hearing, Biti said the judgment was a very brave one in that the court had maintained its principle of judicial independence.
“On the merits, we are pleased to say that the court was able to say Statutory Instrument 101a of 2016 was unconstitutional and that it was made without respect to section 68 of the Constitution, [and] that it was made without any authority,” he said.
“Policemen can’t make laws. In our view, this judgment, since the Constitution became law in 2013, is one of the most important judgments we have had from the point of view of Zimbabweans, who have the right to march and to demonstrate.”
Meanwhile, Nera members and pro-democracy pressure groups yesterday hailed the ruling as a victory for constitutionalism.
“It’s a victory for the rule of law, a victory for constitutionalism. This ruling should send a very clear and unequivocal message to the beleaguered Zanu PF regime that the people’s fundamental human rights and liberties are sacrosanct,” MDC-T spokesperson, Obert Gutu said.
“As the MDC, we are very happy and excited at this ruling. Going forward, we hope that the ZRP shall not continue to conduct themselves like Adolf Hitler’s Gestapo. The ZRP are not a law unto themselves.”
Dzikiti, who was one of the applicants, said Chigumba’s ruling “is a reminder that Zimbabwe is a republic and not a monarchy, which panders to the whims of Robert Mugabe”.
“We salute the bravery of Justice Priscilla Chigumba against the backdrop of threats and victimisation by Mugabe in his speech some days ago. We have stood up to tyranny and we will never allow injustice to hinder our road to democracy and liberty,” he said.
MDC spokesperson, Kurauone Chihwayi said: “Our judges should not take political instructions from outgoing Presidents or political parties. The MDC joins the nation in celebrating this victory and views it as a giant step towards the land of Canaan.”
Tajamuka/Sesijikile executive member, Hardlife Mudzingwa, said the High Court ruling had given them the impetus to continue piling pressure on the Zanu PF regime to relinquish power.
