SUMMARY REPORT BY STEPHEN IRWIN QC
CHAIRMAN OF THE BAR OF ENGLAND AND WALES

1 The following points are the main conclusions I have reached following our reading and extensive interviews with many people during our visit to Harare on 15th to 17th April 2004.  Our group hopes to produce a fuller report in due course marshalling the material we were supplied with, and further material which is still to be made available to us.  

2 Our group are very grateful to the broad range of people engaged with the legal system in Zimbabwe who spoke to us, from many different points of view.  We would wish to stress that we came to Harare and deliberately sought out people from all sides of the question, so as to improve our perspective.  We were received courteously by the acting Attorney General and other pro-government people. A list of those to whom we have spoken will be attached to our full report.  

3 Land redistribution in Zimbabwe is a matter for political decision by the Zimbabwean people.  That is not my concern nor the concern of our group.  Many people, including critics of the Zimbabwean government, told us that the redistribution of land was a necessary pre-condition for peaceful settlement in Zimbabwe.  Our group’s concern is with the justice system.

4 A number of those to whom we spoke gave us a broad historical context into which to set our conclusions.  The key points were that there were grave concerns about the independence of at least some of the judiciary before 1980, during the Smith regime; that there had been a long and tragic war in Zimbabwe; and that the land question had to be seen in that context.  Many emphasised the need for land redistribution.  This context is helpful, but I repeat that my concern is with the justice system.

5 The independence of the judiciary in Zimbabwe has been severely compromised.  

6 It is agreed by everyone that a significant number of senior judges have been granted farms under the land resettlement scheme.  The grant is at the will of the government and the farms may be taken back at any time without compensation.  Some of the judges and holdings were identified to us specifically, and they appear to be large holdings.

7 These same judges often have to adjudicate on the controversial legal and constitutional issues arising out of the land redistribution legislation, under which they themselves have received farms.  Under such circumstances, judicial independence must be compromised.

8 Court orders have been ignored or disobeyed both by the government and by others sympathetic to the government on many occasions when there has been no legal challenge to their validity.  These orders include those relating to land transfers and to unlawful occupation of land.

9 Case allocation in the High Court has been removed from the registrar and taken in by the Judge President of the High Court, Justice Garwe.  This creates the opportunity for abuse by the allocation of cases other than at random.

10 So far as we could establish, 36 election petitions were presented challenging the validity of Parliamentary elections, soon after the general election in 2000.  We were told that15 of them had been heard at first instance, of which 7 or 8 had been successful.  All the successful petitions had been appealed and no appeal had been listed for hearing by 16th April 2004.  Of the remaining petitions, another 15 have been heard at first instance, but no judgment has been handed down by 16th April 2004.  The remaining petitions have not been heard at first instance.  The next general election is due to take place in May 2005.

11 There have been reported to us instances where case allocation has given rise to the inference of political motivation in the setting down of cases for hearing.

12 There have been a high number of judicial resignations in recent times.  There may be a number of reasons for judicial resignations, but we are clear that at least some have been the result of political and other pressures. There is a clear perception that that on occasions when a judge has given a decision contrary to the interests of the government, that judge is subject to pressure in one form or another.

13 There have been assaults on magistrates and judges in and around their courtrooms.   The last Chief Justice Gubbay had his courtroom invaded by people who described themselves as war veterans.  He was told by a minister that his safety could not be guaranteed, and these events led to his resignation.  Judges who have given decisions unfavourable to the government have been arrested, and have been subject to humiliating treatment. 

14 There is a pattern of personal attacks on judges in the government controlled press. These often appear to be linked to a decision made by the relevant judge which was seen as being hostile to government.  A recent example may help to illustrate the point.  The government newspaper the Sunday Mail has a column headed ‘Under the Surface’ which recently carried the following item:  

‘Just when the government thought the revolution at the courts was over, there seems to be something stinking there.  Under the Surface smells some Justice Gubbay residue and this residue stinks so bad that it is cause for concern.

What makes this Gubbay residue even more dangerous is that it has the colour that we can identify with and speaks our mother language, but the thinking stinks of colonial ideas. 

Of course some will say, lets have some democracy, but why leave a snake in the house? One day the snake will strike while we concentrate on pressing issues and it will be too late to hit its poisonous head’.

15 In the end, taking into account all that I have read and heard, I was forced to conclude that the system of justice in Zimbabwe has been very severely compromised.