TERERAI MAFUKIDZE
ACCORDING to Benjamin “Bennie” Goldin, a South African-born Zimbabwean lawyer who served as a judge on the Rhodesian and post-independence bench, Chief Justice Hector Macdonald was invited by the chair Lord Peter Carrington to spend a week at the Lancaster House talks in London in 1979.
The Lancaster House talks led to a ceasefire, elections and Zimbabwe’s Independence in 1980 after a protracted civil war between the Rhodesians and the liberation movement.
While there, he was asked by Carrington what the attitude of Rhodesian judges would be should the Patriotic Front (Zanu and Zapu) win the 1980 elections. Macdonald told Carrington that should the Patriotic Front win, he and several other judges would resign and leave the bench.
Carrington sought permission from Macdonald through the cabinet secretary George Smith (later on a judge of the High Court) to make public the position of the Rhodesian judges. The Patriotic Front was putting pressure on Carrington to make this public as they felt it would show that the judges were stooges of the Rhodesian government.
It turned out when Macdonald expressed the position to Carrington, he had not canvassed the views of every judge. Under pressure from London to confirm that the position could be made public, Macdonald called Goldin who was the senior judge at the High Court. He instructed him to canvass the views of the other judges, which he immediately did.
Goldin records that: “They all disagreed with what the chief justice had told Lord Carrington. Each emphasised that judges do not resign because of a change of the political party in power. This was contrary to principle and the role of a judiciary. One of them said that even if he were to intend to resign after a Patriotic Front election victory he would consider it a personal private matter.”
This attitude naturally displeased Macdonald. He was now discovering that he was in the minority on this issue.
As Goldin records: “I telephoned the Chief Justice and reported the result. He was surprised and vehemently expressed the view that we misunderstood the need and advisability of supporting him.
All judges were present when I spoke to him. He said that he would cable that he and ‘several other judges’ would not stay. I stressed that if he did so without naming the judges who supported his view we would be compelled to issue a statement dissociating ourselves from his proposed reply. He, therefore, decided to identify the judges who agreed with him…”
In the cable sent through Smith, Macdonald stated that: “The Chief Justice confirms that if the Patriotic Front were to win the next elections, he and other judges of the Appellate Division would not want to stay in office and would wish to retire. This information may be divulged by Lord Carrington to the PF and may be made public.”
The message was revealed by the Lord Privy Seal Sir Ian Gilmour at the conference, resulting in jubilation from the Patriotic Front members.
The Patriotic Front was distrustful of the Rhodesian bench and had disclosed its intentions to appoint Leo Baron (previously a Rhodesian detainee), who was a member of Zapu and was in fact its legal adviser at the Lancaster House talks, as chief justice at Independence.
Baron was imprisoned for 17 months and released in the late 1960s on condition that he leaves Rhodesia.
He went to Zambia where he was appointed a judge and later Zambia’s deputy chief justice. Baron, a British immigrant, had represented Zimbabwe’s nationalists over many years as a lawyer. Baron was appointed a judge of the Supreme Court of Zimbabwe.
He sat on the bench from 1980 until 1983. At one point he acted as chief justice.
Could Baron’s non-appointment when Macdonald retired have had anything to do with the Zapu-Zanu tensions at the time? George Kurekwaivanane in his seminal book The Struggle Over State Power in Zimbabwe states that Baron was not appointed the substantive chief justice after the retirement of Fieldsend in 1983 despite being the most senior judge on the bench because Zanu PF officials were reluctant to appoint him due to his closeness to Joshua Nkomo and his membership of Zapu.
However, another Zapu man, Enoch Dumbutshena, later on got the job.
Speaking in the House of Assembly on 13 July 1982 on the renewal of the state of emergency in Zimbabwe, Home Affairs minister Herbert Ushewokunze referred to the bench as hostile and went on to criticise several of its decisions. He then cited the media reports that came out on 7 November 1979 articulating the position of Macdonald and his appellate colleagues should the Patriotic Front win as evidence of the existence of “recalcitrant and reactionary members” on the bench.
He added that: “Our posture during constitutional negotiations with the British that the judiciary must be disbanded, can now be understood with a lot of hindsight.”
Calling the bluff
The elections came and the two Patriotic Front parties, Zanu and Zapu, secured a total of 77 seats. Zanu had 57, while Zanu had 20.
On 13 March 1980, Lord Arthur Christopher Soames, who was the governor during the transition, addressed a letter to Macdonald on the issue of tenure. He reminded him of the Lancaster House discussion regarding judges and stated that Macdonald had said that in the event of a Patriotic Front victory he and two of his Appellate Division colleagues would not continue in office.
Soames went on to state that he had discussed the matter with the incoming Prime Minister, Robert Mugabe, who had no objection to the publicly stated retirement dates of the three judges.
In that regard, Macdonald would retire from active service from 1 May 1980 and go on leave pending formal retirement on his 65th birthday on 3 November 1980. Justice Harry Davies would retire from active service on 1 April 1980 and go on leave pending formal retirement on 24 June 1980 when he attained the retirement age of 65.
Justice John Lewis would continue to serve until 14 August 1981 after which he would also take six months’ leave and retire formally on his 65th birthday on 14 February 1982.
Soames stressed that the “there would be no question in this case of yourself or either of your two colleagues electing to continue to serve until the age of 70, as would be theoretically possible under section 86(1) of the Constitution of Zimbabwe.”
Owing to the publicly stated decision to leave if the Patriotic Front won, Soames was underlining the fact that no extension of their terms was possible despite legal possibility. In other words, the new government would not extend the terms as the judges had decided to leave as a protest to its victory in the elections. This underlines the politics around discretionary extensions.
Macdonald did not like the contents of the letter from Soames and replied in strong and angry terms. Something had moved. He claimed that the position he had communicated regarding the position of the judges of the Appellate Division was intended to assist the British Government during the negotiations and was also a response to attacks made during the talks against the judiciary.
He added: “I believe that Lord Carrington would not approve either of the terms or the tone of your letter. On the contrary, I am sure he would deprecate its contents.”
He went on: “The imminent retirement of Judge Davies and myself at this crucial time has, notwithstanding that we are retiring at the normal age of 65, been a source of great concern in important and influential sections of the community.” He warned about the risk posed by the loss of experienced judges. He did not identify this important and influential section of the community.
It seemed in the end, Macdonald was detested by both his master and his opponents in equal measure.
In his autobiography A Bitter Harvest, the late former Rhodesian premier, Ian Smith, portrays Macdonald as a vain character. For example, Smith says that on 3 July 1978, Macdonald went to him to complain about the lack of recognition of his importance at the funeral of ex-Rhodesian president Clifford Dupont.
“I had often said that the less I had to do with protocol the better. But, he insisted that he was second in standing to the Prime Minister, and therefore should be treated differently. I had heard about his sensitivity over his position, and that those around him had to be on their guard lest they failed to acknowledge this situation.”
This theme of Macdonald calling himself second in status only to the prime minister is repeated by Smith discussing Macdonald and his difficult attempts to meet Carrington during the Lancaster House talks.
Smith states that when Macdonald finally met Carrington he was “eating out of his hand” and had converted him to the British cause. Revealing Macdonald’s delving into politics, Smith stated: “That evening Macdonad had a long session with Muzorewa and his colleagues, assuring them of the British government’s good intentions of producing an agreement that would ensure a return to power of Muzorewa and his UANC. The undertaking had been given to him personally by Carrington that very day.”
Macdonald also got involved in the meeting between Muzorewa’s UANC and Smith’s Rhodesian Front on the sidelines of the Lancaster House talks. Smith states that he was surprised to find Macdonald sitting at the top table to the right of Muzorewa who chaired the meeting. Smith portrays Macdonald as an active political player and adviser to both Muzorewa and Ndabaningi Sithole.
Further, Smith also accused Macdonald of making a major contribution in undermining Rhodesia’s position at the talks and adds:
“Chris Andersen, our Minister of Justice, expressed his strong feelings over the inexplicable behaviour of our chief justice. He subsequently informed me that the other judges of the Appellate Division had expressed positive views in opposition to and condemnation of the stand Macdonald had taken at Lancaster House. If people are prepared to make a stand on principle and live with it, that is one thing. But in this case, once the whole sordid affair was in place, and (Robert) Mugabe and his communist dictatorship installed, Macdonald cashed in his pension and associated benefits and beat a hasty retreat to live in a comfortable home on the coast of South Africa.”
In an instance of irony, Smith records that he congratulated Dumbutshena (to be future chief justice) on his contribution at Lancaster House the previous day critical of Muzorewa’s proposed unconstitutional action. He concludes that the idea that Muzorewa had expressed was no doubt “placed in his mind by Hector Macdonald’s irresponsible outburst at Lancaster House”.
Consistent with Macdonald’s injudicious statement in the Bishop Lamont judgment, Smith states that Macdonald indeed believed that the Patriotic Front would not win.
He states that General Peter Walls, Central Intelligence Organisation head Ken Flower, Macdonald and his minister David Smith had fallen into a trap laid by Carrington and the British Foreign Office and that it was becoming more difficult for them to refute the evidence that Mugabe was heading for victory unless they succeeded in preventing intimidation which they were failing to do. On Macdonald’s resignation, a bitter Ian Smith records: “On 3 April, Hector Macdonald announced his resignation as Chief Justice (it was retirement though). Having supported the British at Lancaster House, he was now about to retire to South Africa because things had gone wrong. Some of his colleagues in the Appellate Division told me he was wasting a lot of their time trying to explain away his decision to ‘take the gap’.”
What Smith misses is that, like Macdonald, his two appellate colleagues had taken the position that they would resign in the event of a Patriotic Front victory – which they did.
*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.
