Lets get the judiciary to account: Part 2

via Lets get the judiciary to account: Part 2  JANUARY 11, 2014 By William Eckem Sithole NehandaRadio

As the new year begins, it begins with a Zimbabwe at cross-roads. Zanu PF has been declared the victor in the plebiscite held on 31 July. MDC has refused to concede defeat, citing rigging on a grand scale, leading to a disputed poll.

Challenges were lodged in the Courts and these were abandoned later, the reason being that the Courts are partial.

I, like many Zimbabweans, am in no position to pronounce on who is right and who is wrong, but can testify that on the ground, things are dysfunctional. There has been a run on the banks, as people have elected to safeguard their savings by banking them under the pillow.

Companies are retrenching, re-structuring and right-sizing, jettisoning the few of our brothers and sisters who were employed and causing despair, depression and dread on the millions of unemployed citizens in the country.

It is the time the judiciary should be rising to the fore and unlocking the logjam threatening to tear the country apart, but alas, it stands accused of being part of the problem.

Solutions are needed and needed very fast. Zanu PF stands accused of creating the problem of legitimacy. MDC, on the other hand, is accused of being clueless and failing to lead, given the level of disaffection on the ground.

The hawks in civic society are calling for civic disobedience and rolling mass action. Academics are analysing conditions in Zimbabwe, to see if they are ripe for an Arab Spring revolution. Those that can get out of Zimbabwe are doing so.

Many hare-brained ideas are being thrown around and I, like many, submit my own hare-brained idea of trying to restore credibility to our Constitution of Zimbabwe and all institutions created under it, by ridding our judiciary of reactionary elements in the first instance.

When we have a truly independent judiciary, asking it to strike from our statute books, all those laws that are not in conformity with the Constitution. Then, it is my profound belief, Zimbabwe will be ready to take its place in the league of independent nations.

I am proud that Zimbabwe, despite extreme polarisation, provocation and prodding chose the road to change through peaceful, democratic and constitutional means. As wiser heads have said “if we were stupid enough to go to civil war, many people would have been happy and ready to provide us with the arms to butcher each other. But, now that we chose peaceful means, that material and financial support is withheld.”

It behoves upon us to ensure that we chose a vehicle that will see all Zimbabweans enjoy the fruits of the war of liberation. I humbly submit that a common rallying point for all Zimbabweans is THE PROTECTION AND DEFENCE OF THE CONSTITUTION OF ZIMBABWE FROM ATTACK BY WHOSOEVER, UNDER WHATEVER CIRCUMSTANCES, WHENEVER AND HOWSOEVER IT IS DONE.

It is a path I have personally followed for over a decade and I was most surprised to discover that many of our judicial officers only pay lip-service to their Oath/ Affirmation of Office. This fact, more than anything else, is, in my book, responsible for the mess Zimbabwe finds herself in.

Yes, there has been serious competition for the accolade, what with a President who only accepts judgements that favour his interests, army generals who commit treason by stating who is an acceptible President to them, police who are partial in arresting offenders and prosecutors prosecuting or declining to prosecute depending on whom you are, whom you associate with and how much you can put under the table.

What is common with all the above mentioned is that they were seeking to be above the Constitution and were the judiciary truly independent, it would have consistently ruled against their usurping powers and ensured that they just had the powers they needed to execute their constitutional mandate. The Courts failed/ refused to do so and now, all of us are stuck in the stinky mud, with no solution in sight.

But, we as society are guilty too. We saw the Constitution under attack and we never defended it. What defence will we have when the judiciary says no matters were brought to us (the judiciary) to adjudicate.

The law will only start operating when a party with a legitimate right and interest lays a complaint. But for your complaint to be resolved in your favour, you must observe the right procedure and place sufficient evidence before the Court to enable it to find for you.

Given the above, it is seen that to a large extent all of us are guilty of not protecting our Constitution from attack, but with that said, greater guilt lies with the Court, for on those few occasions they were asked to apply the laws of the land, they ducked, they dived and they avoided their principal duty.

So how do we propose to get the judiciary to account and thereafter to use them to advance our Constitutional democracy. More than their legal power to make judgements, the judge’s moral power enables them and their judgements to be respected.

It is this respect that compels me, as a losing party to accept the adverse judgement because I believe that the judge as a learned, impartial and uninterested party found me wrong. It therefore means that either I failed to convince him on the merits of the matter or that I was wrong to begin with.

If, however, society is shown that the judge is a pretender, a wolf in sheep’s clothing, then such judge would be damaged beyond redemption and his sponsors/ corrupters would have no option but to dump him.

Because this will be happening in the public domain, it will deter the other judges from so acting. If judges are no longer acting like wolves in sheep’s clothing, it follows that they will really be sheep in sheep’s clothing, which is exactly as it should be. When the judges start applying the law, justice will be the by-product and that justice is what everybody wants.

We are interested in matters that have run their course, but even after exhausting all available remedies, you, as a complainant are not satisfied with the outcome. I am reliably informed that a domestic judgement prescribes after 30 years, which may mean that injustices committed even in the Eighties can be brought up.

I am aware of instances where injustices done by the Courts have been reviewed after 200 years and wrongly convicted people had such convictions overturned and the person exonerated. But, I want justice today, I do not see why I should be exonerated after 200 years just because the judge is busy making a fortune by selling judgements.

For obvious reasons, the law works on specifics. It is the specific cases showing transgressions, especially of the oath/ affirmation of judicial office that will give us desired results.

A case in point is the much publicised attempt to discipline Justice Hungwe. In or about April 2013, the Chief Justice, acting within his powers, began impeachment proceedings against Justice Hungwe by recommending to the President to set up a Commission of Enquiry to investigate whether Justice Hungwe was still fit and proper to continue holding office as a judge.

Society accused the Chief Justice of doing a hatchet job on Justice Hungwe at the behest of Zanu PF. Despite the Constitution ordering the President to set up the Commission, eight months have passed and no action has taken place.

Why is society quiet? The refusal by the President to set up the Commission is clearly an attack on the Constitution and society is cheering the President on, because this time public sympathy lies with Justice Hungwe.

Will society be cheering when a judge viewed by society as a ruffian and scoundrel but is the President’s blue eyed boy, shielded from impeachment?

I do not know if the charges laid against Justice Hungwe have merit, but certainly, I would be uncomfortable to have him preside over a matter to which I am a party, with such a cloud hanging over his head.

What society should have demanded, I humbly believe, is that a truly independent Commission be urgently set up and it either exonerate or find the judge guilty. If the judge is found guilty by a farce commission, even if it may be too late for Justice Hungwe, society must demand that the statute books be re-written, to prevent abuse.

I would be most happy to see society demanding a proper closure on this matter, as a matter of principle, defence of the Constitution and most important, setting the precedent that there are no sacred cows.

Here, Zimbabwe, I am showing by way of example, how we can defend our Constitution by getting judges toaccount. Some, will be of the opinion that we must let sleeping dogs lie.

If there is any who feels that way, kindly bring your compelling reasons to the public domain. As an educated nation, we will reach consensus and proceed to action.  Action may be that we do not do anything and identify another case to pursue, but I am convinced that defending the constitution takes precedence and do hope that Zimbabwe can rally around this cause.

William Eckem Sithole is a victim of justice gone to the dogs. He is currently based in South Africa. He can be contacted on e-mail at eckysithole@gmail.com