This is a continuation of a series of popular articles by South African-based Zimbabwean lawyer Advocate Tererai Mafukidze on the history and evolution of the judiciary in Rhodesia and later Zimbabwe. The last instalment was on Zimbabwe’s first post-independence black Chief Justice, Philip Telford Georges from the Caribbean, and the first black indigenous Chief Justice, Enoch Dumbutshena.
WRITING about Rhodesian Chief Justice Hugh Beadle, Zimbabwe’s first black indigenous Chief Justice Enoch Dumbutshena says:
“Sir Hugh Beadle, Chief Justice of the rebel colony, is to all intents and purposes a right wing politician to whom questions of white domination are second nature. In 1948, as Minister of Justice and Internal Affairs, he told a meeting of African strikers in Bulawayo that his government was not ‘prepared to negotiate with a band of lawless hooligans’… And in 1959 Sir Hugh, then Chief Justice of the High Court of Southern Rhodesia, presided over a tribunal which inquired into the banning of the African National Congress (ANC). Sir Hugh and his tribunal produced what can only be regarded at this stage of our history as an unenlightened document in which ordinary expressions were given subversive meanings.
“The government of Sir Edgar Whitehead had at that time declared a state of emergency and detained more than 500 leaders of the African National Congress. Sir Hugh, a man endowed with an excellent judicial mind and education, found nothing to commend in the organisation of the ANC or the grievances that had led Africans to form a political party whose aim was to gain political influence for Africans.
“The report was a negative document which supported the government of the day. One would like to believe that had Beadle objectively examined the events that led to the formation of the ANC and its objectives, Southern Rhodesia would have been saved the embarrassment that promoted (Unilateral Declaration of Independence) UDI. Mr Robert J. Chikerema, now Vice-President of Zimbabwe African Peoples Union, and George Nyandoro, its Secretary-General, spent four years in detention, when, in fact, their party had not been guilty of violence. They had not broken even a solitary glass pane or thrown a stone. The attitude and the approach of Sir Hugh Beadle to the political problems of 1959 were sadly coloured by the same prejudices which produced UDI and the resultant state of war between Europeans and Africans. ”
Three liberation fighters were to become the first executed political prisoners in Rhodesia. Three Zanu activists, James Dhlamini, Victor Mlambo and Duly Shadreck, had been tried and convicted of petrol bombing a car driven by Pieter Oberholzer, a white reservist who later on died from the burns.
The three were sentenced to death. Appeals against the conviction and death sentence in Rhodesia had failed. A request to the Rhodesian government to commute the death penalty had failed.
Meanwhile, the British government, whose authority Rhodesian Prime Minister Ian Smith did not recognise, granted pardons to the three convicts. On 6 March 1968, the three were hanged by Smith’s government.
There was a huge international outcry against the executions. Death sentence became a weapon of choice for the Smith regime with the result that by 1972 225 people had been sentenced to death since UDI in 1965.
Referring to the Dhlamini case and others, Dumbutshena stated that the Africans would not have been executed had they been white and Beadle “applied his mind to the legal implications of the prerogative of mercy. But he shut his mind’s eye and put on the blinkers of racial prejudice.”
Dumbutshena went on to praise judges John Fieldsend and Dendy Young who resigned in protest and articulates his ideal justice system: “I have long held the view that the unadulterated democratic processes are the bedrock of impartial justice. In countries in which the minority are in power and in which that minority provides the judges, courts of law dispense justice in accordance with the wishes of the ruling minority. The judges tend to identify themselves with their kind and share, without shame, the social and political aspirations of their community.”
He considered Fieldsend and Young exceptions to this rule.
Dumbutshena’s commitment to the armed struggle as the only hope for African liberation was unshaken. “Perhaps in this long and bloody struggle lies the hope that one day the Africans of Zimbabwe will walk with their heads in the air.”
He had confidence in the future victory of the armed struggle, stating: There is no doubt that Africans will win the war of liberation. We are all certain of that, but it will take us a little longer than it would have done, had we not blundered.”
In 1967, Dumbutshena had left Rhodesia via Botswana on foot, and gone into exile in Zambia where he took up employment with the Zambian justice ministry before setting up his own law firm. He continued to practise law in Zambia before returning home in 1979.
About his departure, Dumbutshena said: “I left Rhodesia in 1967 because the security police used to visit my house in the early hours of the morning. I would be driven to a checkpoint. One day they detained me and several other Africans.
It was not until 10am that I was freed. I discovered afterwards that a judge before whom I was appearing had refused to continue with the trial until I was released. I was the only black barrister at Advocates’ Chambers. Because I was harassed by security police, I felt isolated. I arranged to go to Zambia. I was driven by a white friend and his wife to the border between Zimbabwe and Botswana. Then I crossed the border and walked and walked right through the night.”
He did not have a passport, having been denied one by the Rhodesian government.
Describing his own appointment to the bench as the first black judge in independent Zimbabwe, Dumbutshena noted that in 1980 the new black government had inherited three appeal judges and eight puisne judges.
These were all white and male. Barely four years later, nine of the eleven judges left. Five of them went to South Africa. The government had to recruit judges from Ghana, Tanzania and the West Indies. Senior white magistrates also left. The judiciary organised crash courses for magistrates and it worked. “I am very proud of our magistrates,” he added.
On his own appointment to be chief justice, Dumbutshena accepted that his appointment was some kind of black advancement.
Comparing his appointment to that of Justice Anthony Gubbay who succeeded him on retirement, Dumbutshena said: “My successor is Mr Justice Gubbay. I may have been appointed Chief Justice because I was an African. The appointment of Mr Justice Gubbay as Chief Justice was not based on colour. He is white. He was appointed because he was the most senior judge and an excellent judge.”
Describing the appointment of black judges in newly independent Zimbabwe, Dumbutshena had this to say: “In Zimbabwe the appointment of black judges to the bench introduced new attitudes to justice. From the beginning of my appointment I had the misfortune to handle sensitive cases. I declared detentions unlawful and unconstitutional. I acquitted the Air Force men accused of conspiring to destroy war planes. When I announced the verdict of the court the packed courtroom was upon its feet. Both black and white cheered. It was a new experience and the birth of a new trust and confidence in the judiciary. For my sins I was appointed chief justice.”
Of the sensitive cases that Dumbutshena handled before he was elevated to chief justice, two deserve mention. The first is the York Brothers case in which the two were arrested and charged with illegal possession of arms of war. The brothers were acquitted by Dumbutshena. This angered the government which went on to detain the acquitted brothers.
The second is the sensational trial of the six airmen. It commenced in the High Court in Harare and ran for 20 days, between 23 May 1983 and 22 July 1983. Judgment was delivered on 31 August 1983. Dumbutshena had recently been appointed to the position of judge president.
He had only been appointed a High Court judge in May 1980.
Prosecuting the accused Air Force officers were Honour Mkushi and Ishmael Chatikobo (later judge of the High Court of Zimbabwe and Botswana). Defending the accused persons were Harry Ognall QC and Ian A Donovan. Ognall is best known for his prosecution of Peter Sutcliffe, dubbed the Yorkshire Ripper, for 13 murders in the 1970s and 1980s. Ognall QC was later to be appointed a High Court judge in England.
At Independence and throughout the 1980s, Zimbabwe faced the threat of destabilisation from apartheid South Africa. The regime was keen to ensure that Zimbabwe was not stable.
It wanted to prevent the Zimbabwean government giving support to the South African liberation movement in exile, particularly the ANC and PAC.
It was therefore no surprise that on 25 July 1982 saboteurs entered the Thornhill Air Force Base at Gweru. Using explosives, they destroyed or damaged a number of aircraft, buildings and other equipment. The loss sustained was estimated at over $7 million.
These saboteurs were never apprehended and their identity was never established.
The police then arrested six officers who at the time were serving officers in the Air Force of Zimbabwe. The most senior of these was Slatter who was an Air Vice-Marshal and the Chief-of-Staff of the Air Force. The six officers were all arrested after the sabotage and were eventually charged under section 50 of the Law and Order (Maintenance) Act [Chapter 65], the allegations being that they aided, abetted, incited or procured the sabotage that had taken place.
This was unique. It stood or fell on their alleged confessions. The state case stood or fell on the statements made. There was no evidence at all that implicated any of the accused in the commission of the offence with which they were charged and such evidence as was led could do no more than supply corroboration to certain aspects of warned and cautioned statements made by the accused.
The statements had been confirmed by magistrates in various centres around Zimbabwe as required by law and presented at trial by the prosecutor. The defence attacked the statements on two bases: firstly, that the confirmation proceedings were themselves invalid because the air force officers had all been denied access to their lawyers, in contravention of both the Criminal Procedure and Evidence Act and the constitution; and secondly that the statements were in any event inadmissible because of the undue influence that had induced the accused to make them and that they were also denied access to their lawyers.
The acquittal incensed the government with the minister of Home Affairs, Hebert Ushewokunze, accusing Dumbutshena of class bias. An appeal against the acquittal was unsuccessful.
Then Zimbabwean Prime Minister, Robert Mugabe, went on to appoint Dumbutshena as the first indigenous chief justice. Dumbutshena proceeded to decide several important matters and to defend the rule of law and human rights in his judgments.
One such important judgement involved probably Smith. The Supreme Court had decided that parliament was wrong to suspend payment of his salary and allowances.
The Speaker of Parliament, Didymus Mutasa, declared that parliament would not abide by the court decision. Led by Dumbutshena, the judges of the Supreme Court issued the following statement on 9 November 1989: “We, the judges of the Supreme Court of Zimbabwe, take a serious view of the statement published in The Herald of 9 November and attributed to the Speaker of the House of Assembly, the Hon Didymus Mutasa, concerning the ruling of the Supreme Court in the appeal of Ian Douglas Smith.
“The statement displays the contempt with which the Speaker holds the Supreme Court and his utter disregard of the rule of law. The Hon Didymus Mutasa is reported as having said that the suspension of payment of salary and allowances in respect of Mr Smith was a matter that rested exclusively with the sovereignty of parliament. It was the supreme law-making body and its decisions were not subject to court rulings. We understand the Speaker to mean that the parliament can disregard the laws of the land and the courts of law can do nothing about it.
Parliament may not by its actions contravene rights upheld in the Declaration of Rights. The duty of deciding whether parliament’s action contravene such rights is not given to parliament. Otherwise they would be judges in their own cause. An impartial body is entrusted with the duty. We, recognising our human weaknesses, are the body to whom that duty has been entrusted by the constitution. We are satisfied that our decision was correct, but that is not the point. The decision was ours to make. We have made it.
“The Constitution of Zimbabwe lays down the separation of powers between the Executive, the Legislature and the Judiciary. Parliament makes the laws. The duty to interpret the laws made by Parliament is assigned to the Judiciary. The Judiciary presides over the observation of the rule of law. Parliament cannot disobey its own laws. If it does the courts of justice will determine whether parliament has contravened the provisions of its own enactments.
“We, the Judges of the Supreme Court, feel strongly and are greatly offended by the Speaker’s attitude towards the rule of law. What the Speaker was saying is that parliament makes the law and parliament is exempted from obeying its own laws. It is a view that disregards with contempt the rule of law and the courts of justice.
“We regard this matter so seriously that we sought to express our strongly felt views to the Minister of Justice, Legal and Parliamentary Affairs and the Acting President. We were informed that both of them are out of town. We shall give our reactions after we have had an audience with His Excellency the President, who is out of the country. We would be failing in our duty if we were to let the country believe that what the Speaker said in his statement accords with the law in Zimbabwe. I trust a crisis situation can be averted, but I must make it clear that a crisis A has been created.” – DUMBUTSHENA CJ.
On 14 November 198, Mutasa made a further statement to the House of Assembly, in which he said inter alia: “As Speaker of the House of Assembly, I am duty bound to respect the decision of the House to suspend Mr Smith’s Parliamentary salary and allowances, notwithstanding the judgment of the Supreme Court” ( Hansard , col 2064).
He announced the appointment of a committee of mostly legally qualified members of the House, the terms of reference of which were: (a) to examine the implications of the judgment of the Supreme Court on Mr I.D. Smith’s salary during his suspension from membership of the House of Assembly and to determine whether the House of Assembly should withdraw its resolution; (b) to determine whether the rights of Parliament as embodied in the Privileges, Immunities and Powers of Parliament Act and other conventions were interfered with; (c) to examine any other matters which are pertinent to the issue or related to it; and (d) to report, with recommendations, to the Standing Rules and Orders Committee as a matter of urgency.
The then Minister of Justice, Legal and Parliamentary Affairs, the current President Emmerson Mnangagwa, made a statement to the House on 21 November 1989, in which he said:
“I feel it is my duty as the minister responsible for the administration of justice in this country that I make this statement clarifying these issues. Government wishes to reaffirm the power of the judiciary to interpret the law. In terms of our law, there are three organs constituting government, namely, parliament, the executive and the judiciary…The main function of the Judiciary is to interpret laws, adjudicate and pronounce on rights and obligations and to determine whether there has been a breach of any provision of the Declaration of Rights.
“The duty of the Judiciary to determine whether or not there has been a breach of the Declaration of Rights is conferred upon them by s 24(5) of the constitution. The duty of the Judiciary to interpret and to strike out any laws which are inconsistent with the constitution and to declare actions as unconstitutional arises from the provisions of s 3 of our constitution which provides as follows: ‘This constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this constitution that other law shall, to the extent of the inconsistency, be void.’
“Whilst government does not always agree with all the decisions and judgments made by the judiciary it nevertheless respects the right of the judiciary to make pronouncements on all matters of law. In this instance government respects and recognises that the Supreme Court had jurisdiction to entertain the claim by Mr Smith and to interpret the law as it saw fit. In the present instance government has studied the Supreme Court judgment and is satisfied that the judgment is sound and correct in law.
“But that, however, is not the major point. The important point is that courts have the power to interpret the law as they see it fit. Inevitably, a decision or judgment of the courts on a matter involving a personality as notorious as Mr Smith of the UDI track record is bound to draw considerable criticism from members of the public.
That is a healthy development in a democratic society such as ours. Whether Mr Smith will get paid or not is a matter for parliament to decide. If parliament decides not to pay it would have to take the necessary corrective legislative measures or otherwise regularise its decision.”
In April 1990, the committee appointed by the Speaker submitted its report to the House, but the report was not considered before Parliament was dissolved preparatory to the 1990 general election. When Parliament reconvened, it decided to accept the recommendations of the committee and to pay the appellant in accordance with the Supreme Court ruling.