Judiciary versus Executive: Tyranny has gone too far

From the common angle, it really looks like an ordinary employer-employee conflict over pay.  Looked differently, it is something much more than that.  It is a historic battle, the first of its kind on the Zimbabwean land.  The conflict started long back but had remained latent for a while, but then everyone has got their limits.  What has happened is the inevitable of overstretching someone’s patience and abusing loyalty.

So if the battle is not over salary, what is it about?

One of the grievances of the striking magistrates is the government’s unwillingness to implement the Judicial Services Act which seeks to move the whole bench from the Public Service Commission to the Judicial Services Commission.  Precisely, the Judicial Services Act seeks to establish a truly independent judiciary, in line with the spirit of 79B of the constitution of Zimbabwe.

As made explicit in our constitution, Zimbabwe has embraced the doctrine of separation of powers for the simple reason that our history makes it so easy for us to mistrust politicians with power.  The whole idea is to preserve and work towards a full civilisation of good governance which entails a clear discrimination of powers, an independence whereby each power conducts its deliberations free from external influence, and a dependence whereby the actions of each are subject to scrutiny by others.

History has made the executive, (headed by the president) to be the chief suspect of these safeguards against tyrannical instincts.  And sure enough, the executive in Zimbabwe has not disappointed.  Although always under pressure to create an independent judiciary, they have never been sincere. That explains why the Judicial Services Act took generations to pass.  It was only signed by Joyce Mujuru, who was the Acting President after the Judge President Justice Makarau breathed fire.  Still the same, that was it.  Nothing else was done.

Since 1980, the executive has systematically stripped the judiciary of its dignity and independence, making it a subsidiary of the executive.  You will remember the firing of the Chief Justice Anthony Gubbay, the invasion of the Supreme Court by the war veterans, the harassment of judges and many others.  The crusade did not stop then.  Meanwhile the groans of the judiciary grew louder.  No wonder why the cry, Give me liberty, or give me death.

The executive, for the purposes of foreign policy needed a judiciary that simply appears to be independent.  The truth on ground, however, leaves a lot to be desired.

While judges of the superior courts are executive appointees, perhaps the security of tenure offers protection against potential assaults of the executive.  Section 88 (2) of the Constitution provides that the judges’ salary shall not be reduced during his tenure of office.  This however is academic security.  In a hyperinflationary economy like ours, not adjusting salaries accordingly is tantamount to reduction.  The executive has not been able to abstain from offering bribes to judges to win favourable decisions.  

This is the lighter picture.  The real picture is worse than that.  The bench has been invaded by the executive.  Real judges have been chased and imposters have been put in place.  Politicians find their way to the bench were they hide in judicial regalia, yet they are too ready to shout party slogans.  No wonder why the questionable decisions that come from the bench.  My apologies to the Chief Justice Chidyausiku, but it is heartbreaking when you look for politicians and you find them dressed as Judges.  Where then is the separation?

The inferior courts do much of the donkey-work in Zimbabwe.  They are closer to the society and handle the day to day cases.  These are worse than the superior courts.  These are literally owned by the executive.  Magistrates work under one master and yet they are paid by the other.  They work under the Judicial Services Commission and are paid by the Public Service Commission.  Thus they are paid by the executive, which determines their conditions of service.  They have no security of income or security of tenure.

If they pass rulings that rile the executive, they are easy to victimize.  They can be posted to work anywhere without a say as a way of victimization.  Their salaries can be tempered with.  The Public Service can decide to transfer a judicial officer to another department, even in a different capacity.  

In a democratic context, independence entails adequate salaries so that officials are above the dangers of stooping.  

The executive in this country has used this weakness to maintain a grip on the judiciary.  Certain members of the magisterial bench have also become politicians in judicial robes.  They have received farms and other benefits, while those who are not useful to the executive are languishing in abject poverty.  That explains why the Judicial Services Act is facing resistance from the executive, because it creates a truly independent judiciary capable of keeping an eye on the executive without fear of victimization.

This is the battle which has culminated in the recent action by judicial officers.  It is important for us as a nation to see the truth, to realize that this is not about salaries.  History could be in the making.  The government has failed to uphold the spirit of the constitution as far as the judiciary is concerned.  Their lackadaisical response to the strike is testimony that they don’t really care.  They actually wish to replace all the judicial officers with militias.

It was an unfortunate oversight that the parties negotiating in the SADC brokered talks focus on the electoral laws and ignore the independence of the judiciary, which is saddened with the duty to interpret those laws.

But why does the executive hate an independent judiciary with such passion, to the extent of starving judicial officers by paying them a little less than US$16, and bugging even their toilets?

It is all for the sake of power.  They are not comfortable with having someone check upon them and they are fast sliding into the overdrive of tyranny.  History cannot acquit them.  The judiciary has got a duty to ensure that the supreme law of the land is well interpreted, and the rights contained are protected.

In carrying out this constitutional mandate, the judiciary has been undermined by the dealings of the executive which unfortunately ends up abusing even the legislature.

Three basic methods have been employed by the executive meet its immoral ends.

The first one has been an open defiance, simply ignoring court orders.  In the 1980s, several orders were made by the courts for release of detainees as well as orders for compensation.  The executive found refuge in the Liabilities Act which offers a shield against attachment of state property.

In January 1999, two journalists were kidnapped by the military police and were severely tortured for more than a week for publishing a story about an alleged coup.  After an application was made, the Supreme Court ordered the Commissioner of Police to institute an investigation.  The Commissioner openly refused saying the matter involved highly sensitive matters of national interest.  We do not know which exception in law he was basing his refusal on.  But we clearly remember the President fuming that the journalists had forfeited their right to legal protection by acting in such a blatantly dishonest manner’.  Again we are unaware of such a legal exception to the protection of a citizen’s rights.  

The second method was simply changing the fabric which caused discomfort.  Thus the executive sponsored and influenced the changing of certain laws to absolve it from compliance and suit its needs.  

Since May 11 1990, amendments to the Declaration of Rights, as well as any other provisions of the constitution, could now be passed by at least two-thirds of the new unicameral Parliament.  Before that, a unanimous vote of the Assembly, the lower house, in what was then a bicameral house was required.  The executive went for a kill, pulling down every safeguard against tyranny in our constitution and barricading themselves against any kind of scrutiny.

During the 17 years honeymoon up to this date, what the executive (or is it the executive-owned legislature) has done to our constitution is exactly what the devil would do if entrusted with the bible.

Real civilisation offers protection to the weak citizen against the powerful state.  In our case, the executive has through numerous amendments barricaded itself against a poor citizen whose only weaponry is a vote.  

The third weapon of destruction has been the Presidential Powers (Temporary Measures) Act.  One example of the gross abuse of the Act against the judiciary was when on 8 December 2000 the President issued a Proclamation seeking to validate the results of the June elections which were being challenged by the opposition in 37 constituencies.  The effect would have been to overthrow the jurisdiction of the court which was waiting to hear these cases.  This proclamation was declared null and void by the Supreme Court.  However, the official mind of the dictator had been revealed.  

The crusade against the judiciary goes on and on.  The executive has almost taken control of all the three arms of government.  What kind of a democracy are we?  A constitutional democracy?  No!  The constitution had got so many patches and it can be changed so easily by a dominant party in Parliament.

A parliamentary democracy?  No!  The parliamentarians are told which song to sing, and how to dance to it.  It is called the party line’.  Margaret Dongo has got a way of expressing it:  they are all wives of one person.  I have no reason to disagree.  At the end of the day, the executive has become like an octopus, with its tentacles in all the arms of government.  What then shall we call Zimbabwe?  Perhaps we are an executive democracy.  In the West they call it dictatorship.

In accurate terms, it is this dictatorship which the judiciary is currently fighting.  Salaries are just part of the story.  It is a historic battle that will define a new course of history in this country.  The judiciary has no army of its own.  It has no police force.  How can it effectively stand up against a tyranny that is armed to the teeth?  All players in the legal fraternity need to be alert to the revolutionary fervour in the sector.  There maybe no other chance to tell the bullying executive that enough is enough.  

The free-the-judiciary-crusade must gather the remnant of the civilized of our society and fearlessly confront the enemy with whatever ammunition we have.  The time for a showdown is now.

The judiciary cries for much more than salaries.  Give me liberty, or give me death!