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A tale of two dead jurists


IN eight days between the 3rd and 11th of May, Zimbabwe lost two prominent personalities with such divergent backgrounds and footprints on the socio-political and legal landscape that is probably only matched by the factionalism in the country’s political parties and the polarity in the society especially since the turn of the century.


The late former Chief Justice Godfrey Chidyausiku
The late former Chief Justice Godfrey Chidyausiku

On May 3, Zimbabweans learnt of the death of immediate past-Chief Justice Godfrey Chidyausiku and eight days later, eminent Namibia-based Jurist and liberation war icon, Simpson Mtambanengwe passed away thousands of killometres from the land he laid his life to free from colonialism.

President Robert Mugabe’s Zanu PF party took days to confer heroes’ status on Chidyausiku probably a sign on the internal disagreements over his contribution especially the former CJ’s connections to the pre-independence colonial State.

Mugabe is yet to say a word on Mtambanengwe, who was declared a national hero by the Namibia government. The Zanu PF leader presided over Chidyausiku’s burial on Saturday, hours after jetting into the country from another controversial jaunt to the Far East for a “routine medical check-up on his eyes only.”

Mtambanengwe was a pioneering Zanu cadre following the split with Zapu in 1963, escaped to Zambia and worked as the party’s external affairs secretary.

Opposition Zimbabwe People First elder, Rugare Gumbo worked with Mtambanengwe during the struggle.

“He was the link between the party and the Organisation of African Unity, the Commonwealth and the United Nations.
He is a hero in every sense of the word, indeed a great stalwart of our struggle. Mtambanengwe was part of the revolutionary council the predecessor to the Dare before losing his position to John Mataure in 1973,” Gumbo said.

But Zanu PF spokesperson Simon Khaya-Moyo on Friday said the ruling party had not been formally notified of Mtambanengwe’s death.

“There has not been any formal communication. We will respond to it when we are notified officially,” Khaya-Moyo said.

Constitutional law expert and political activist Lovemore Madhuku said of Chidyausiku and Mtambanengwe: “They represented a particular generation of lawyers, a transitional group with Western orientation and the African born, bred and trained lawyer. They did their best but were not particularly good, you would not regard them as perfect.”

Mtambanengwe worked in the Judiciary up to the Supreme Court, and later was appointed chairperson of the Zimbabwe Electoral Commission in 2010 before leaving in a huff prior to the 2013 general elections controversially won by Mugabe.

The late former Supreme Court judge and Namibia's former Chief Justice Simpson Mtambanengwe
The late former Supreme Court judge and Namibia’s former Chief Justice Simpson Mtambanengwe

“He was pushed out for being politically incorrect” it was reported with Mugabe having quickly accepted the “resignation.”

In an article published on his blog in the aftermath of Chidyausiku’s retirement from the bench at the end of February this year, legal expert Alex Magaisa described the late former CJ as a “judge of the revolution.”

“His tenure as head of Zimbabwe’s judiciary has been eventful and controversial. Probably the most overwhelming impression under his leadership is that the judiciary has been subject to capture by the executive arm of the State,” Magaisa said.

After being appointed as head of the country’s Judiciary in the mayhem that rocked the country at the turn of the century Chidyausiku literally became Mugabe’s midfield legal enforcer on the issue of the controversial land reform programme. For this he has received plaudits from the establishment and brickbats from critics of the regime and its scorched earth policies that have been blamed for the economic decay.

Magaisa had a low opinion of Chidyausiku’s approach to legal interpretation characterising it as “narrow and dry.”

“There can be no doubt that the most significant legacy of the Chidyausiku era is encapsulated in his work on the Land Question. Indeed, when the story is told in future, the history of the land revolution will be incomplete without an articulation of Chidyausiku’s game-changing role. To call him a judge of the revolution would therefore be an apt description.”

Little, however, has been said of Chidyausiku’s political preferences during the liberation struggle. A top government and Zanu PF official said on condition of anonymity: “He was in the service of the Rhodesian State…rewarded with an MP seat for Harare in Ian Smith’s racial Parliament.

“The disappearance of Edison Sithole, his fellow partner, mentor and political associate remains unresolved. Sithole paid the ultimate price, they were tsika nditsikewo (very close) in 1975 going to the University of Rhodesia’s Law Department. Chidyausiku did not run away after the dastardly act. It’s a mystery.”

Gumbo said he knew little about Chidyausiku except “for the fact that he was an MP in Rhodesia.”

“They (Chidyausiku and Mtambanengwe) both contributed to the country in different ways. We should not be selective in conferring heroes’ status to those who contributed to the development of our country or look at this with ethnic lenses. It pains some of us, we should celebrate our diversity. Contradictions and differences should never define who we are and our future as a people,” he said.

Former Intelligence minister Didymus Mutasa agreed.

“Mtambanengwe is a hero of the struggle. He was a pioneer and a longstanding member of the Dare. The problem we might have is that those with the mandate to confer heroes status have no idea of who the people they are supposed to adjudicate on are,” said Mutasa.

While crediting Chidyausiku with nominating him for appointment to the bench in the early 80s another retired judge Justice Chris Greenland in an obituary said:

“His legacy is not good. Chidyausiku failed to uphold the rule of law. When a judge assumes office he/she takes an oath to act ‘without fear, favour or prejudice’. Chidyausiku failed to uphold this sacred oath.”

“Chidyausiku veered off the path set by his erstwhile predecessors, being unable to maintain the sacred requirement that all are equal under the law, as epitomised by Lady Justice being blindfolded and, therefore, blind to difference in status, race, colour or creed,” Greenland said.

“The inference was that this was a reward for Chidyausiku having headed the group that welcomed President Mugabe back into the country after the Lancaster House settlement.”

Zanu PF sources added that during the struggle Chidyausiku was part of a society then known as “Capricon” which according to Rugare Gumbo advocated for gradual change than revolution.

“It was a society that wanted evolution than revolution. I would not be surprised that he might have been part of it,” Gumbo said.

Liberation war fighter Bernard Chinyadza aka Parker Chipoyera said Mtambanengwe had lost favour because of his forthrightness.

“But he fought for the likes of Mugabe to be released from jail. Now he is dead and we wait to see what decision will be made. However, a precedent has already been set. The likes of Hamadziripi and Mandizvidza were ignored at death while those that worked with Rhodesians have been honoured, Chidyausiku included,” Chinyadza said.

Another war veteran Happison Nenji whose nom de guerre was Webster Gwauya said Mtambanengwe must not be ignored.

“Differences happen everywhere, but should never define who we are. There is no doubt that Mtambanengwe is a national icon and hero of our liberation,” he said.

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