THE name Charles-Louis de Montesquieu has been immortalised in the history of political theory and jurisprudence.
His seminal treatise, Spirit of the Laws, has been celebrated as one of the most well-articulated pieces of political theory and jurisprudence.
The 18th century French social and political philosopher coined the term “trias politica” or “separation of powers” which provides that the political authority of the state should be categorised into legislative, executive and judicial.
The intention of the doctrine is to avoid the concentration of power in one arm of the state as well as the provision of checks and balances.
Unfortunately, in the Zimbabwean context, this doctrine applies abstractly since it is mutilated in practice.
Former president Robert Mugabe was accused of purging the judiciary, handing out “gifts” of land and goods to ensure the judges’ loyalty, and providing instructions for prosecutors to continuously incarcerate opposition members without trial for as long as possible.
The ushering in of the new dispensation came with an aura of positivity as the populace thought the political playing field had improved.
Alas, they were wrong!
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An analysis of how the judiciary has been functioning under the second republic has left many portraying it as a typical case of “old wine in new skin”.
The selection of judges, treatment of judges that issue judgements that seem to be unfavourable to the ruling elite, decisions handed down by some judges on opposition political players, and amendments to the constitution among others are testament to the fact that the judicial system is on a tailspin under the new dispensation.
The High Court’s decision that ruled the November 2017 coup as constitutional has been described by many analysts as the genesis of judicial capture.
“The actions of the Defence Forces in intervening to stop the take-over of first respondent’s constitutional functions by those around him are constitutionally permissible and lawful in terms of Section 212 of the constitution of Zimbabwe,” reads the High Court judgment, in part.
The principle of independence of the judiciary is provided for in section 164 of the constitution which underscores the rule of non-interference by any other person in the affairs of the judiciary.
Writing in The rule of law in a constitutional democracy with particular reference to the Zimbabwean experience, the late cabinet minister Eddison Zvobgo noted that: “We tend to think that the independence of the judiciary means just independence from the legislature and the executive.
“But it means much more than that. It means independence from political influence, whether exerted by the political organs of government or by the public or brought in by the judges themselves through their involvement in politics.”
The treatment of perceived ‘radical’ judges who deliver anti-establishment rulings speaks to the dearth of judicial independence and degeneration of democratic values.
Last year, former High Court judge Erica Ndewere was fired by President Emmerson Mnangagwa following recommendations by a tribunal for “gross incompetence” including failure to clear her workload within a reasonable period, and failure to properly study the file of a convicted prisoner, and his sentence when she set aside his jail term on appeal.
She denied the allegations arguing that Chief Justice Luke Malaba was infuriated following her defiance of his illegal directives in court cases brought before her that involved former Tourism minister Prisca Mupfumira and Citizens Coalition for Change (CCC) legislator Job Sikhala.
Ndewere challenged her dismissal without success.
The recent dismissal of High Court Judge Justice Edith Mushore for absenteeism has also been viewed sceptically with experts arguing that she could be paying the price for ruling that Malaba had ceased to be Chief Justice upon reaching the age of mandatory retirement.
In a democratic society, judges should be allowed to make autonomous decisions as was the case in Malawi in 2020 when the Constitutional Court declared null and void the re-election of former president Peter Mutharika.
In a unanimous decision five judges, with Judge Healey Potani presiding, said: “It has been our finding that the irregularities and anomalies have been so widespread, systematic, and grave such that the integrity of the results has been seriously compromised”.
The treatment of Sikhala and the ailing Marry Mubaiwa has proven to be a reflection of how the judiciary is being allegedly used to settle political and personal scores.
Sikhala and Godfrey Sithole have been languishing in remand prison for months and their attempts to get bail have been thrown out on numerous occasions.
Interestingly, Zanu PF’s Gokwe-Nembudziya legislator Mayor Wadyajena who stands accused of allegedly siphoning US$5 million out of Cottco and is out on bail.
This is ultra vires section 165 of the constitution, which states that “justice must be done to all, irrespective of status”.
These contrasting rulings on bail have led constitutional law expert Lovemore Madhuku to admit that Sikhala and Sithole’s issue is a political case that might be difficult to get recourse through legal means.
Media analyst and law student Mlondolozi Ndlovu said: “The second republic has failed to respect judicial independence as far as high profile political cases are concerned.
“A number of magistrates and judges are failing to make decisions because of the invisible hand attempting to control them.”
The constitutional amendment that gives the President power to appoint senior judges like the judge president and chief justice has been described as another form of interfering with judicial operations.
Constitutional law expert Greg Linington argues that the appointment of judges should be based primarily on merit.
“For example, in 1986 Fergus Blackie was appointed to the High Court bench by virtue of being the most senior member of the de facto bar,” he said.
“This was in spite of the fact that during the pre-independence UDI period he had sat in Parliament as a member of the Rhodesia Front Party.
“Similarly, Enoch Dumbutshena was appointed Chief Justice in 1984 (the first black Zimbabwean-born Chief Justice) even though he had been involved in the ‘internal settlement’ and had given judgment against the state in a number of controversial cases,” Linington added.
However, Ndlovu notes that giving the president the power to appoint judges contravenes the separation of powers doctrine.
“Therefore, there is a need to go back to the constitution and allow Parliament to exercise the power granted to it by the constitution,” Ndlovu said.
Nonetheless, some analysts said the executive is in power to administer the affairs of the state as it sees fit and to fulfil its electoral promises.
This implies that in the event that any political party assumes power it can also reconfigure the bench to fulfil its electoral mandate because no president wants to work with an antagonistic judiciary or legislature.