In an interesting press statement issued this past week, Advocate Chamisa’s spokesperson and MDC director of communications, Luke Tambarinyoka had this to say of the recent High Court judgment about the MDC name usage rights “… as for Justice Bere’s judgement, we believe it is political, controversial, appealable and contestable.”
It may appear to be a political statement by a political party, but its unintended consequences are that it disregards the authority of the courts and effectively scandalises both the judge and the court (though in theory the two are one).
By Paul Kaseke
Why is this important, you may ask? Well, scandalising the court is an offence — one which current Finance minister, Patrick Chinamasa, knows all too well about after being found guilty of it in his then capacity as Attorney General in 2001.
In Re: Chinamasa , a judgment of the Zimbabwean Supreme Court penned by then Chief Justice , Anthony Gubbay , Chinamasa was taken to task over the following statement which appeared in The Herald concerning a judgment that he disagreed with: “The Attorney General’s office is shocked and outraged by this judgment and the sentences have brought about a sense of shock and outrage in the minds of all right-thinking people.”
If we are being fair, in some sense his statement is not as far reaching as the MDC statement in that he did not seem to imply any political or ulterior motive by the judge. His words just indicate that he was dissatisfied with the outcome and that many others would be — for reasons of common sense. As a worst-case scenario, one would say that he was suggesting that the decision would have been decided differently by all right-thinking people — impliedly excluding the judge from this. The MDC statement on the other hand, suggests that the court was politically controlled and was not legally sound. In Chinamasa’s case, the court took exception and found that it constituted contempt of court specifically because it scandalised the court.
Thanks to Chinamasa, the courts were able to give meaning to the charge of scandalising the court under a constitutional democracy where freedom of expression is guaranteed.
The judgment In Re: Chinamasa, was the perfect opportunity to deal with this concept and has become the African yardstick for balancing the need to protect the court and the freedom of expression in general. It has been cited and relied on by some of the most superior of courts especially in the Southern African region, because of the careful balancing act the court performed. Former Chief Justice Gubbay defined the crime of scandalising the court as being committed by “publication either in writing or verbally of words calculated to bring a court, a judge or the administration of justice through the courts generally, into contempt”.
Basically then, this offence is committed where statements made by an individual or a body are meant to ridicule the court, undermine its authority, lower its reputation in the eyes of the public or cause the public to lose confidence in the judiciary.
Legitimate criticism of the courts that is courteous and yet balanced does not fall within the ambit of this offence, which means that when analysts and academics critique a judgment, provided it does not undermine the authority of the court and cause the public to lose confidence in the judiciary, such comment falls under legitimate constitutional protection and thus is not contempt of court.
The court found that Chinamasa’s words had the effect of undermining the authority of the courts and found him guilty of contemptuous conduct. If a Zimbabwean court relying on the Chinamasa test as it is sometimes called, had to determine the same in respect of the MDC statement , I have no doubt they too would find it to be an act of scandalising the court, particularly, because the suggestion is that the judge was moved by political reasoning and not by legal logic — a very serious charge to be brought, especially by the country’s largest opposition. It could send a message that the courts must be disregarded, because they serve political interests only and lead to a lawless State where court orders are rubbished as politically driven acts. The degree of influence the MDC is a further reason why the party must be careful of such statements.
It also seems hypocritical to me that such a statement would come from the MDC, which in 2013 accused Zanu PF of doing the same thing with the Mawarire court case. The MDC was also quite vocally during the judicial crisis of the 2000s and condemned statements made by the Executive that had the effect of undermining the courts and their independence. The standard should apply to all — not just Zanu PF and in this case, we must call a spade a spade. The MDC statement was probably drafted under emotion and in the heat of the moment, but the criticism of the court must be withdrawn, as it quite literally scandalises the court.
The culture of scandalising the courts and undermining the judiciary is one Zanu PF has been well known for. If one thinks back to the early 2000s, where there seemed to be a sustained attack on the judiciary by the government (the judicial crisis I referred to earlier), many judges opted to resign, because of the kind of criticism and intimidation that came from the Executive.
As an example, Professor Jonathan Moyo who was Information minister during the period, said of Justice Blackie’s judgment which was critical of Chinamasa’s conduct, “there is no doubt that fair-minded and law-abiding citizens will see this judgment for what it is: Outrageous, sinister, highly personalised crusade made by someone who should be packing his bags”. Justice Blackie resigned shortly after the ruling before being arrested.
As if competing for the prize of most attacks against the judiciary, Chinamasa further stated: “We must begin to exorcise from all our institutions the racist ghost of (former Rhodesian leader) Ian Smith, and we do so by phasing out his disciples and sympathisers.” The late Chenjerai Hunzvi referred to Justices Gubbay and Ibrahim as they were then, as “evil devils who had to go” at a time when the war veterans set up camp at the Supreme Court dancing and demanding that the judges who ruled against farm invasions resign.
Former President Robert Mugabe, once described a judgment by Justice Uchena that allowed the late Roy Bennett to contest elections while imprisoned, as “plainly stupid”, which then forced the judge to reverse his own decision and prohibit Bennett from contesting the elections.
During the judicial crisis, he also stated on state television “the judiciary should stay out of politics and refrain from instructing the President”. The pattern shows that the undermining of courts is largely a Zanu PF trait, but MDC can easily be mistaken for Zanu if the statements are reflective of its views. After the attacks on the judiciary, Justices Michael Gillespie, Ishmael Chatikobo, Sandra Mungwira, Nick McNally, Ahmed Ibrahim and Michael Majuru resigned from office — which demonstrates just why the courts need to be protected from attacks — regardless of who makes those attacks.…just saying!
Paul Kaseke is a legal adviser, commentator, analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as director and current group chair of AfriConsult Firm. He writes in his personal capacity. You can give him feedback via email: firstname.lastname@example.org or follow him on twitter @paulkasekesnr