AN independent and impartial judiciary is a central pillar in any democracy.
The judiciary is the arbiter in any legal disputes between the state and the citizens. Under the principle of separation of powers, the judiciary stands as the ultimate protector of fundamental rights and freedoms of citizens.
Through instruments such as judicial review, the courts provide checks and balances on executive power, thereby promoting constitutionalism.
To perform this role effectively, the judiciary must be independent. Most constitutions provide mechanisms that are designed to protect judicial independence. If these safeguards are honoured, the judiciary will play a key role in stabilising a democracy.
However, the opposite happens when the judiciary loses its independence. When the judiciary is controlled and subservient to other forces, it becomes captured. Therefore, where the government assumes
control of the judiciary, the rule of law is subverted and rule by law becomes the norm, causing a collapse of constitutionalism.
There are serious concerns that this is where Zimbabwe finds itself in 2020, where the judiciary has become captured by the government and is unable to perform its role fully and effectively. However, this phenomenon of judicial capture did not begin in 2020. There is a view that until around the turn of the millennium, Zimbabwe had a world-renowned judiciary which enjoyed independence from the government. The post-Independent judiciary created a reputation for impartiality and political neutrality, overcoming the tendency in the colonial judiciary for making political decisions.
According to this view, there has been a steady decline in judicial independence since the early 2000s, leading to the current situation. After the first 20 years of independence, and a somewhat feisty relationship with the government, the judiciary came under attack, just as the Zanu PF government began to face threats to its power from the MDC. A serious clash between the judiciary and the government came after the referendum in 2000, and the invasions of white-owned commercial farms.
When the Supreme Court ruled against the government, the gloves came off. Judges were threatened, courts invaded, and judges resigned when it was apparent that they would receive no protection from the government. From this point onwards, it was apparent that the government had no interest in the rule of law.
The next battleground over the impartiality and independence of the judiciary came with elections in 2000, and elections have been a continual battle-ground right up to 2018. In 2000, the MDC entered 38 electoral petitions after the elections, petitions that were urgent: the point about election petitions is that they affect the composition of parliament, and a political party’s power in parliament. Since the MDC had already a constitution-blocking minority, winning these petitions would mean they effectively would become the majority (as they did in 2008).
However, by slowing down the process, the judiciary ensured that no challenge would upset Zanu PF’s majority and, in fact, not a single petition was completed by 2005, and every Zanu PF MP served his or her full term.
The courts were increasingly seen as serving the political interests of the Zanu PF government against its opponents. In 2002, the court summarily dismissed the MDC petition on the Presidential election: the substantive judgement was to follow, but never produced in 18 years.
However, it is not merely over elections that the judiciary shows its partisan nature. In 2009, Robert Mugabe illegally appointed 10 more ministers than the constitution allowed. When challenged in court, Justice George Chiweshe ruled that it was unconstitutional, but the application was dismissed as it would destabilise the state, a political not legal decision. Taken on appeal, the case was not concluded before the end of the Government of National Unity .
The judiciary also played a key role in the coup that toppled the regime of Robert Mugabe. It was Justice Chiweshe again, who ruled that the conduct of the military was consistent with the constitution, although it was evident that military commanders had acted against their Commander-in-Chief in breach of the Constitution. This decision gave a veneer of legality and therefore legitimacy to the coup. The judiciary was serving military interests and the interests of a political faction. When this decision was challenged, the Constitutional Court dismissed the application on a technicality.
There is also the matter that, in “politically sensitive” cases there is an increasing tendency to complete consensus on the bench: dissenting judgements have largely disappeared. There is even the egregious directive by the Chief Justice that all judges should submit their judgements to him for vetting, obviously the most serious assault on the independence of the judiciary that there could be.
The instrumentalisation of the judiciary is evident in the selective application of the law, where rules are applied differently to persons depending on their political affiliation. This is because of the overlap of political and commercial interests in the political economy of corruption. This has resulted in the judiciary serving the interests of political elites and politically exposed persons (PEPs).
Take, for example, the arrests of Obadiah Moyo and Hopewell Chin’ono around the Covid corruption: Moyo gets bail and walks the same day, whilst Chin’ono, who exposes the corruption, does not get bail and spends 44 days in detention.
All this means there can be no reform of the state without the reform of the judiciary. There can be no political settlement or transitional arrangement when the judiciary cannot be relied upon to be impartial.
However, it is important to critically examine this narrative of judicial capture because the phenomenon of capture is complex and multi-dimensional.
To do this, it is important to examine why the government took a decisively hostile approach in the 2000s. It is important to consider the relations between the judiciary and the executive before the 2000s and what sustained that relationship despite the occasional clashes. The factors that drive judicial capture and the identity of captors are important.
In this way, the multiple angles of capture, sources of capture, perceptions of capture and the dynamics of this phenomenon can be more fully understood with-in the country’s historical context. Judicial capture is a multi-dimensional phenomenon which requires a nuanced analysis. It is this nuanced analysis that will provide ground for understanding what has happened to the Zimbabwean judiciary and how any challenges it is facing might be resolved.