South African-based Zimbabwean lawyer Tererai Mafukidze continues with his series on the Zimbabwean judiciary, particularly focusing on the chief justices.
AT the end of April 1990, Zimbabwe’s first indigenous black chief justice, Enoch Dumbutshena, reached the retirement age of 70 years. He was therefore required to leave office.
The man who was to replace him as chief justice, Anthony Gubbay, decided to write to President Robert Mugabe suggesting that Dumbutshena’s term be extended for at least two years. There was a historic precedent for this — as notably happened with Hugh Beadle.
Gubbay says he did this in “an effort to retain his outstanding personal and professional qualities to the country”. In the letter to Mugabe, he pointed out that “Enoch Dumbutshena had secured for the judiciary of Zimbabwe an international reputation of high standing.”
Mugabe declined, but did not provide reasons. Gubbay states: “I suspect that the government believed that Dumbutshena CJ was not sufficiently on side and that under his direction and influence the Supreme Court was giving too many judgments against it.”
Dumbutshena retired and accepted appointment as a judge of appeal in Namibia. He also accepted appointment to the bench of the Transkei High Court before South Africa achieved democracy.
He also accepted special appointment by the Government of Lesotho to hear the dispute on the restoration of the Crown — a decision he made with longstanding repercussions for Lesotho’s constitutional order. It is the judgment that resulted in the coronation of King Letsie III.
During the early 1990s, Dumbutshena entered politics. He led the Forum Party of Zimbabwe and contested the 1995 elections. His party performed dismally. He quit politics.
Anthony Roy Gubbay
Gubbay had been appointed judge of the High Court in May 1977 by Rhodesian prime minister Ian Smith. He was promoted by Mugabe to the Supreme Court after Independence in 1980. Mugabe appointed him chief justice on 5 August 1990.
On his own appointment as chief justice, Gubbay says it was a surprise decision: “I was never told why the President chose me to succeed Enoch Dumbutshena as chief justice.
It was unexpected. I did not regard myself as in the running. First, I have been appointed to the judiciary by the Smith regime in 1977.
Secondly, it must have been appreciated that Dumbutshena CJ and I had worked closely together and shared a determination to accord persons their basic rights. Almost invariably, we had always been on the same side in such judgments.
Thirdly, it had been widely forecast that in pursuance of the policy of affirmative action, a black judge would be appointed.”
Gubbay was born on 26 April 1932 in Manchester, England. He grew up in Zimbabwe. He was educated at the University of Witwatersrand in South Africa and at Cambridge in England. He commenced practice as an advocate in Bulawayo upon admission on 6 June 1957.
In 1959, in the early years of practice, Gubbay was briefed with others to challenge the detention without trial of 100 African nationalists who supported Joshua Nkomo.
One of his earliest clients in this regard was Joseph Msika, who later on became Zimbabwe’s vice-president. Gubbay also represented Joshua Nkomo in 1966 when he challenged his restriction to one of the country’s remotest areas.
In 1975, Gubbay also defended Moven Mahachi when he was charged with assisting persons who left the country to join the liberation struggle.
The late former president Robert Mugabe and Zanu nationalist Edgar Tekere were some of them.
Mahachi managed to escape the death penalty. Gubbay took silk in May 1974, and was appointed by Smith to the position of High Court judge in May 1977.
Gubbay vs Godfrey Chidyausiku
On 14 December 2000, Mugabe addressed the extraordinary Zanu PF congress. During his speech he stated that: “The courts can do what they want. They are not courts for our people and we shall not even be defending ourselves in these courts.”
On 21 December 2000, the Supreme Court led by Gubbay handed down its judgment declaring that the government-sponsored land invasions were illegal.
Two days after delivering the judgment, the leader of the Zimbabwe National Liberation War Veterans’ Association, Chenjerai “Hitler” Hunzvi, attacked the Supreme Court and demanded that all its judges resign within 14 days or else.
Reacting to the threat, Gubbay requested and met the Acting President and two cabinet ministers seeking protection for the judges.
At the meeting, Gubbay was attacked by the Acting President and ministers.
He states: “No sympathy was shown to the judiciary’s predicament. Quite the reverse, it was said to me ‘you say you feel threatened by the war veterans; but they are threatened by your judgments. You are not giving the right direction to your judges.’ The Acting President went on to blame me for a boast he claimed was being circulated by the white farmers that: ‘We have the Supreme Court in our pocket’. The meeting ended with my being accused of aiding and abetting racism’.”
In early January 2001, the Judge President of the High Court, Justice Godfrey Chidyausiku, while delivering a speech opening the legal year at the Bulawayo High Court, publicly accused the Supreme Court of bias in favour of white commercial farmers.
He accused Gubbay of having pre-judged the land issue. Chidyausiku referred to Gubbay’s 1991 criticism of the proposed land constitutional amendment that would remove the power of the court to determine the fairness of compensation to be paid for land expropriated.
And said the remarks by Gubbay then: “…gave an implicit assurance to the white commercial farmers that if they sued the government after being evicted they would win their cases. This encouraged the farmers to sue and they have won their cases as promised.”
Chidyausiku also angrily attacked the Supreme Court because in November it overturned his own judgment setting aside an earlier Supreme Court ruling against state-organised land seizures.
Chidyausiku also accused other judges of obstructing Mugabe’s political campaign to hinder the president’s “revolutionary land programme”.
On 17 January 2001, Gubbay issued a public “severe reprimand” and rebuke of Chidyausiku. Jonathan Moyo, then minister of Information, said that the reprimand “smacks of a kangaroo type of reprimand” and also called for an international tribunal to investigate the judiciary.
Gubbay had said: “In the tense situation prevailing in Zimbabwe at present, the judge president should avoid making inflammatory statements.”
He said Chidyausiku had made “an astonishing and quite unwarranted attack” on him and the other judges who had delivered judgments against the government on the land issue. He also pointed out that in each case, the government’s own lawyers had agreed with attorneys for white farmers that “their position was legally indefensible”.
Chidyausiku, he said, “cannot defend the failure to obey court orders on the basis that land distribution is a political and not a legal issue.
Such an attitude conflicts with the rule of law and his oath of office”.
“His attack on myself as chief justice is essentially a political attack,” said Gubbay. “I will not follow the judge president into the political arena. His allegations are rejected.”
Chidyausiku’s allegations that Gubbay had “promised” white farmers success in the courts were “simply untrue and offensive”.
Gubbay also referred to Chidauysiku’s public condemnation of the overturning of his ruling by the Supreme Court. He said: “No judge should appeal to the public to support his view. The reason is obvious. He is seeking to undermine the very legal system of which he is part.”
Gubbay said he had stopped short of formally advising Mugabe that Chidyausiku’s “removal from office ought to be investigated”.
Instead, he had decided to reprimand Chidyausiku publicly and told him “to refrain in the future from such conduct”. The four other Supreme Court judges – one white, two blacks and an Asian – supported him fully, said Gubbay. Chidyausiku told the state-controlled Herald newspaper that he and Gubbay had met and had “frank exchanges and I expressed my opinion”.
In the morning of 24 November 2000, several hundreds of veterans of the Zimbabwe liberation struggle had invaded the Supreme Court just as it was to commence the hearing of a matter concerning land. They threatened the judges and assaulted the police orderly.
The then minister of Justice Patrick Chinamasa told Gubbay that unless he resigned the government could not guarantee his safety.
The same threats were made to Justice Nick McNally and his other colleague Justice Ahmed Ebrahim. As a result of the threats, Gubbay resigned in February 2001.
Ebrahim soon followed. McNally refused to resign and continued in office until he reached the mandatory retirement age in December 2001.
When Gubbay resigned, Philip Chiyangwa, a Zanu PF MP for Chinhoyi, told The Standard newspaper that he was “delighted but not yet satisfied…my mandate is not complete without the removal of the entire Supreme Court justices. These are Wilson Sandura, Simba Muchechetere, Ebrahim and McNally’.
Of his own resignation, Gubbay states: “At the end of June 2001, I left the bench with a heavy heart. It was clear to me that the judiciary was up against the executive whose express object was to staff it with those black lawyers sympathetic to its political designs. In this it has been successful.
The Supreme Court soon lost three of the judges who served with me. Immediately after my departure its composition was increased from five to eight.
The High Court lost six of its judges, most of whom resigned, during or after 2001, in the face of personal adversity.”
…To be continued
*About the writer: Advocate Tererai Mafukidze is a member of the Johannesburg Bar. He practises with Group One Sandown Chambers in Sandton, Johannesburg. His practice areas at the Bar are: general commercial law, competition law, human rights, administrative and constitutional law.