How many Justices Dube-Banda does Zim have?

Guest Column: Paidamoyo Muzulu

ZIMBABWE has had a long history of violence. In fact, it was a country raped by colonialists using violence in 1890 and gained its independence nearly a century later in 1980 through a violent liberation struggle.

In the period in between, courts were subjected to political pressure and gave politically correct judgments, for example the Madzimbamuto case.

Even after independence, the courts could not stand in the way of then Prime Minister Robert Mugabe between 1982 and 1987 during Gukurahundi massacres.

Zapu leaders paid the ultimate price, dying in prison without trial as judges could not pass judgments that could anger Mugabe and his henchmen.

Then Zapu leader and former Vice-President Joshua Nkomo was coerced into signing the Unity Accord in 1987 to save his comrades who were rotting in prison and the majority of the rural folk in Midlands and Matabeleland provinces who had become collateral damage to Zanu PF’s war to create a one-party State.

However, the 1990s saw a new breed of jurists like Wilson Sandura joining the bench and living up to their oaths to deliver justice.

Sandura became an enigma among the general populace for his judgments that more often called out the State when it abused its power.

He became what many would refer to as a dissenting judge at the Supreme Court. Political correctness was not one of his personal traits. Reading his written judgments is a pleasure to most who love law.

The ex-parte judgment by Judge President Justice George Chiweshe on the constitutionality of the November 2017 military coup is still being debated among lawyers and many are not convinced that the judgment was legally sound.

It is seen in some circles as a sanitisation of the coup by the courts. It is interesting that the arguments put forward for the case are still scant more than two years after the judgment.

Last Friday, a judgment by Justice Christopher Dube-Banda in the case pitting Vice-President Constantino Chiwenga against his estranged wife, Marry, was a breath of fresh air.

It was a case that many were interested in to see if the courts could still be independent in the new dispensation.

Chiwenga had chucked his wife out of their Borrowdale Brooke mansion and took custody of their three minor children without a court order.

In addition to this, the former army general had deployed Presidential Guard officers at the house and their Orchid Gardens business premises in Domboshawa to keep Marry out.

“Whatever the reasons are, I do not agree that a spouse may be removed from the matrimonial home outside the parameters of the law.

“To my mind, she may move out of such a home either by her consent or after conclusion of due process. She cannot be refused entrance to the matrimonial home by members of the military.

“In fact, it is unacceptable and anathema to the constitutional values of this jurisdiction that the military may be used to settle a matrimonial dispute.

“This is frightening and undermines the values inherent in our Constitution, which are the rule of law, supremacy of the Constitution, gender equality, fundamental human rights and freedoms and good governance,” Justice Dube-Banda said.

He added: “Section 74 of the Constitution provides that no person may be evicted from their home without an order of court made after considering all the relevant circumstances. What happened to applicant is eviction as envisaged in section 74 of the Constitution. She was unlawfully refused access to the matrimonial home.

“What happened to the applicant must be a cause of fear and concern to all law-abiding citizens, wherever they are and their station in life.”

This was a strong censure to the VP. However, for some reason, he decided to appeal against the judgment, with his lawyers arguing Justice Dube-Banda misdirected himself.

Reading the judgment slowly, one cannot help but understand the rationale behind the court’s decision.

Probably Chiwenga is doing a pre-emptive strike on the possible ramifications of Justice Dube-Banda judgment.

The long and short of the judgment is that Chiwenga abused his position, and self-helped himself, which is not permissible at law.

More worrying is the fact that Chiwenga is a whole Vice-President and took oath to uphold the Constitution — not some sections, but the whole of the supreme law.

In other jurisdictions, his suitability for office would be under scrutiny.

There can be no better way than conclude in Justice Dube-Banda’s own words: “There cannot be in a constitutional democracy a law for the powerful and a law for the weak. It is in such instances that this court must come to the rescue of the weak and down trodden.

“It is in such instances that this court must stand firm and apply the law without fear or favour.”

How many on the bench can raise their heads, hand to the heart and say the same when faced with a case where the powerful are before them as litigants?

The courts can be the last frontier for people’s rights and we carefully watch how long they can stand the scrutiny.

Paidamoyo Muzulu is a journalist and writes here in his personal capacity. He can be contacted on muzulu.p@gmail.com

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