AN anonymous letter written by magistrates to the Judicial Service Commission and the Zimbabwe Anti-Corruption Commission (Zacc) complaining of what they term “real judicial capture” has exposed a plot to use political lawfare to annihilate the opposition Citizens’ Coalition for Change (CCC).
The intricacies of the systematic strategy were highlighted long back by the late Kent University law lecturer Alex Magaisa in a popular blog piece he titled “How ED Is Plotting To Take Over Zimbabwe’s Opposition.”
Since the disputed 2018 general elections, the courts have handed down judgements that the CCC says are a confirmation of the capture of the judiciary by the Zanu PF regime aimed at either silencing dissent or totally decimating the opposition.
These judgments date back to the 2018 presidential election petition brought by now CCC leader Nelson Chamisa, seeking the nullification of the Zimbabwe Electoral Commission’s declaration of Emmerson Mnangagwa as winner.
The Constitutional Court led by Chief Justice Luke Malaba dismissed the petition and adjudged that “any mathematical error that may have occurred in the process of verification of the Presidential election result in terms of Section 110 of the Act was not gross or sufficient to overturn the outcome of the election”.
The opposition in its analysis of the judgment disagreed with the apex court’s ruling and said it was flawed.
Another major contentious ruling that has been cited as evidence of lawfare against the opposition was the 2020 Supreme Court judgment that said Chamisa was not the president of the MDC-Alliance as Thokozani Khupe is the lawful leader.
It was despite the fact that the party had held its elective congress in Gweru a year before the judgment in 2019 and elected Chamisa.
The MDC-T under Khupe and later Douglas Mwonzora used the judgement to recall Chamisa’s MPs from Parliament and councillors from local authorities in what looked like an end to his political calculation.
Since that time, whenever opposition politicians are brought to court, they have been denied bail repeatedly with Zengeza West MP Job Sikhala, Chitungwiza MP Godfrey Sithole and 14 activists from Nyatsime having clocked over 100 days in remand prison for a crime of inciting violence.
To the contrary, several opposition party officials like Gokwe-Nembudziya MP Justice Mayor Wadyajena were easily granted bail on more serious charges.
At one time Harare magistrate Ngoni Nduna had to recuse himself from hearing Sikhala’s bail application following his arrest accused of defeating the course of justice.
Sikhala had filed an application for Nduna’s recusal, arguing that he could be biased after he denied him bail in a similar case before.
In the recent open letter written by unnamed magistrates dated 4 October 2022 and addressed to the JSC and Zacc, the judicial officers expressed frustration over political manipulation of cases.
A few quotes from their letter exposes the lawfare.
“Sadly, capture is a fact, not a perception. The saddest aspect is that politicians aren’t leading this capture.”
The letter said judicial capture kingpins are in the JSC.
“It’s common knowledge in the magistrate’s court that certain magistrates handle only politically driven matters.”
“Political parties, including opposition members, are brought before so-called Anti-Corruption Courts (ACC) to assure the (desired) result from captured ACC magistrates.”
“Lawyers can shout themselves hoarse before these magistrates, but their clients won’t get justice because everything is done per JSC orders,” reads part of the letter.
In one of his blogs, the late Magaisa said in order to understand Mnangagwa’s strategy to control the opposition, it was useful to present the position after the 2018 general elections.
“The main opposition contested the election as the MDC-Alliance, originally a coalition of seven political parties. When the then leader and presidential candidate Morgan Tsvangirai died in February 2018, he was succeeded by Nelson Chamisa. The succession was not without controversy, but Mnangagwa himself duly recognised that Chamisa was his opponent and the MDC-Alliance was a political party,” he wrote.
He argued that the Supreme Court failed to see that the MDC-Alliance was a political party in terms of Zimbabwe’s electoral law is a recognised political party and independents.
“Political parties might form a coalition, but the law does not recognise coalitions. It only recognises political parties. Therefore, the MDC-Alliance presented itself before the Zimbabwe Electoral Commission (Zec) as a political party and it was recognised as such. Candidates were nominated as candidates of the MDC-Alliance.”
“I make extensive reference to this recognition to highlight the absurdity of the claims in recent months that seek to delegitimise the status of the MDC-Alliance as a political party. It’s nothing more than political gamesmanship designed to exclude and dismember the main opposition from the political community,” wrote Magaisa.
Musa Kika, the Zimbabwe Human Rights NGO Forum director, told The NewsHawks that he did not doubt the existence of political lawfare in Zimbabwe as highlighted in the letter of the magistrates.
“As a lawyer, a citizen and a member of a law-based civil society organisation, on account of what I have seen, heard and experienced, I have no reason to believe that the core contents of the letter are false or malicious,” he said.
He added: “The reality of the day is that the justice delivery in Zimbabwe is not done without fear or favour. The fact that people get different treatment in the courts depending on identity and affiliation confirms this.”
“That we had to fight an Amendment to the Constitution which removed the level of judicial independence confirms this. The nature of the judgments we are getting confirms this. High Court judges have in the past also written an anonymous letter attesting to these same challenges.”
“The letter is a cry for help from some men and women charged with justice delivery who are still true to duty, as much as it represents our cry as citizens to have rule of law and equal access to justice in this country.”