Has the Judiciary got the spine?

By Paidamoyo Muzulu | Mar 6, 2026 | 4 Min read

THE bench, judiciary, is the third leg of liberal democracy.

When the first constitution was written in United States of America, it clearly stated that the country had to have a gridlock of democracy, with the bench checking the excesses of parliament and the executive.

This was not merely theoretical, it is in practice.

To insulate the bench from political pressure, judges are appointed for life.

This gives them the leeway to interpret and rewrite the law in the best interests of the country.

The most contentious issue in the US are gun laws, but the bench has consistently ruled that the people have the right to bear arms.

This is even in the face of high gun crimes in that country.

The bench in Roe case legalised abortion.

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However, with conservative and Christian president, Donald Trump, the Supreme Court has rebanned abortion.

It was made possible by Trump appointing three conservative justices to the bench in his first term — 2016 to 2020.

The nine-member bench today has six conservative justices, with the remaining three being liberals.

Trump, for all his excesses and irrational policies, has long thought that the bench was in his pocket. However, this is not true.

Last week, the Supreme Court bench ruled his trade tariffs illegal.

Trump ranted and raved in the post court ruling.

He even called the bench stupid, but the judgment stood and the tariffs are gone.

The New Yorker wrote: “The ruling in Learning Resources, Inc v Trump is more important as a welcome signal that even this court is willing, at times, to stand up against an overreaching President.”

The paper continued: “Of the justices who disagreed with him, Trump said, ‘They are very unpatriotic and disloyal to our constitution and are swayed by foreign interests.’ This is, perhaps, not the best strategy for dealing with a branch that is not only coequal but whose members possess lifetime tenure.”

This is not only interesting, it in practice reestablishes and reaffirms the Judiciary as independent and coequal member of the State.

Zimbabwe today is in an uncharted territory.

The Constitutional Court will have to rule on the constitutionality of an omnibus Constitutional Amendment No. 3 Bill.

The Bill in essence wants to extend the tenure of the President and parliament from five years to seven, among other things, without going through a referendum.

While we may not know how they will rule, previous rulings by some of the judges in cases that involved the Executive gives us glimpses of their thinking.

In the case of Markham v Minister of Local Government challenging the minister’s powers to give directives to councils, we had a split judgment and some of the judges wrote their separate judgments.

This was unique, last seen in the days of Justice Wilson Sandura, who some in the legal circles called him the dissenting judge.

Unlike the US, in Zimbabwe there is no culture of researching on the leanings of our Justices. We rarely know their religious beliefs, ideological leanings. The few we know is mostly those from the military background.

We remain in the duck about who is liberal or conservative.

We still struggle to understand some because they have never written reported judgments beyond writing “I concur”.

It is interesting to note that Chief Justice Antony Gubbay was haunted out of office making a ruling that displeased the Executive.

We also remember that the Sadc Tribunal, then based in Namibia, also ruled against Zimbabwe in the case of Ben Freeth and Campbell v Zimbabwe on if the land reform was racist and if white farmers were due to receive compensation from the state.

We know many on the bench today appeared as if they had no opinion on the land question. It is now established that the Government of Zimbabwe two decades later accepted to settle US$3,5 billion compensation to former white commercial farmers.

Could this have been avoided? Probably yes.

The Commercial Farmers Union then had come up with a plan to transfer five million hectares of land over five years in an organised manner and fund some of the processes.

The courts could have passed just and not politically rulings.

The Constitutional Court has an opportunity to defend and uphold the constitution.

It can save the country from future problems when we need to rewrite the Constitution to constrain leaders we do not want back to five-year cycles.

It is curious that the amendment on the election of the President by Parliament has not been tied proportion representation as an electoral system.

There is one conceivable argument, the drafters of the Bill are aware that Zanu PF may lose elections when there are no constituencies.

They know they can implement gerrymandering in drawing of constituencies.

It is a fact some constituencies are over-represented.

These facts were raised in previous court challenges on delimitation and the courts have not ruled on them definitely.

It is interesting that the countries that some of defenders of the Bill have cited have strong and independent institutions.

Can anyone here imagine the young brother of King being arrested?

Can anyone imagine here Justices going against the President on a matter they know is close and dear to him?

Germany leader Otto von Bismark is famously known for the quote: “Big questions of the day are decided by iron and blood.”

However, times have changed and now we put our trust on the bench.

Surely, on that score alone, the bench should not be swayed by sentimentality or self-preservation but by the law and constitution only.

When the gavel goes down, Zimbabweans shall know if the bench has spine to rule against the Executive, whose only interests are holding on to power for its sake.

Or they recoil into own shells and pretend Zimbabwe is a parliamentary system like the United Kingdom and then apartheid South Africa where parliament is supreme.

I’m out!