Source: Face to face with Zimbabwe’s judge extraordinaire | The Financial Gazette October 27, 2016
“SO what?” a bemused Bulawayo High Court judge, Justice Nicholas Mathonsi, asked in a recent court ruling in which he ordered the Midlands State University to re-instate three students who had been slapped with an indefinite suspension for alleged “crime” of using the social media to mobilise fellow students to protest against the institution’s decision to open a satellite campus in Zvishavane — 120 kilometres away from the main campus in Gweru — without consulting them.
“The decision which was being resisted was not made by God, but by humans, who had not consulted the affected individuals. Zimbabwe being a democratic country, it was therefore the democratic right of those affected to protest and demonstrate their revulsion at such a decision. How then could it be said that the mobilisation was ‘illegal?’ Section 61 of the Constitution guarantees freedom of expression, that is to say, that individuals have the freedom to seek, receive and communicate ideas and other information. Why then should a university be seen to be working to stifle student rights when it was established with progressive objectives…?” asked Mathonsi, further pointing out that gone were the days when authorities would wantonly trample on citizens’ rights as administrative justice is now embedded in the new Constitution.
“It occurs to me that there is a discernible readiness to unnecessarily pull the trigger and in the process play havoc to the constitutional rights of students. To begin with, the WhatsApp message complained of cannot possibly be said to be offensive at all even if it had been generated by the applicants, of which it was not. What the author was doing was to mobilise support among students to protest against what was considered as an unreasonable decision by the university authorities to shift students to Zvishavane, a little town with inadequate infrastructure and the scarcity of accommodation.”
The three students, Fanele Maqele, Aldrin Nyabando and Tendai Warambwa had been suspended indefinitely pending disciplinary action for their “crime” of forwarding the message about the protest that never took place.
To drive home the importance of freedom of expression in a democracy, Mathonsi added: “The second respondent (the university) should not only be a doyen for intellectual interaction, but also a wonderful laboratory for freedom of expression and free flow of information. Those values are suppressed if the authorities remain engrossed in a time capsule propagating archaic controls and methods of instruction where students are removed from campus for expressing their views. It is unthinkable that someone can still sleep soundly at night after excluding a student from school and sitting for an examination when that student has not been found guilty, but is accused of sending a harmless WhatsApp message.”
The court’s seminal ruling, which to all intents and purpose said the use of the social media was a legitimate tool for use in mobilising for a protest in a functional democracy, was issued in May this year, just around the time when “the flag pastor” Evan Mawarire of #Thisflag protest movement was beginning to mobilise citizens disgruntled with the sorry state of affairs in the country to protest.
It was a time when government, rattled by this new phenomenon, was making all sorts of threats against social media users while looking for ways to manage this new “threat”.
For any other judge, this could have been the most difficult decision to make, but not for Mathonsi, who recently told a Judicial Services Commission (JSC) panel interviewing him for possible promotion to the Supreme Court that his job is primarily to interpret the law as it is, and that he is on the bench not to seek friends or make enemies, but to ensure that those who search for justice get it.
“My approach has always been that there are certain factors that are irrelevant when it comes to my duties and the popularity of a decision or otherwise is one of those factors that are irrelevant to me. I am sworn to interpret the law as it is. Whether the outcome of a decision is popular or unpopular does not matter to me. My guiding principle has always been what the law says,” Mathonsi boldly declared before the eight-member the panel.
What is it about the position of a Superior Court judge that he finds most appealing?
“An opportunity to correct the mistakes that the inferior courts would have done. I always have a very sharp mind for mistakes in the interpretation of the law,” responded Mathonsi to cheers from the public gallery, the same crowd that had jeered and booed down previous interviewees.
More importantly, Mathonsi said, given his hard work on the High Court bench in the past five years, he felt it was time he moved a step up to a position where he would be in a position to influence the direction of the jurisprudence of the country.
Jurisprudence is the course of court decisions.
Deputy Chief Justice (DCJ), Justice Luke Malaba, then took the opportunity to display why Mathonsi was a judge and half.
Statistics complied by the JSC showed that he was not just a hard worker in terms of the volume of his output, but its quality too.
Having delivered 333 judgments in three years, he was a run-away winner because some of his colleagues, who were also vying for the same Supreme Court positions have delivered less than half that number, with some judges even struggling to deliver just two judgments the whole year.
Quality-wise, of the 333 judgments he delivered in the three years between 2013 and 2015, only 22 were appealed against.
Of these, 21 were confirmed by the Supreme Court as correct, while the one that was overturned by the Supreme Court was a case in which Mathonsi — who is regarded in some circles as a no-nonsense judge and a stickler for detail — dismissed because its papers were not in order and the appeals court felt that he could have been more magnanimous as to allow the plaintiff to make the necessary corrections.
JSC records showed that some of the High Court judges, who have been fondling dreams of gracing the Supreme Court bench, have as much as half their judgments overturned on appeal, leaving the panel wondering how borderline judges, who could hardly tell their left from right in as far as the interpretation of the law was concerned, could hope to correct the mistakes of others.
Throughout the day, there had been a lot of free entertainment for members of the public closely following the proceedings from the public gallery when DCJ Malaba asked each interviewee what they understood of the “doctrine of stare decisis” and “the principle of collegiality” and how the two would apply to their work as Supreme Court judges, when some of the interviewees confessed that they had never come across these terms in their lives.
Stare decisis is a Latin term meaning “to stand by that which is decided”.
Stare decisis is a legal principle that dictates that courts cannot disregard the standard… that the court must uphold prior decisions.
Collegiality is the relationship between colleagues. Colleagues are those explicitly united in a common purpose and respecting each other’s abilities to work towards that purpose.
For Mathonsi, when he was asked about doctrine of stare decisis his elaborately comprehensive answer made the next question moot as he had already explained it, causing Malaba to congratulate him for giving the best answers to the questions.
“You are not afforded a margin of error in the Supreme Court and therefore in that regard I am appreciative of the fact that the decisions of the Supreme Court are binding to all in the lower courts so you must be sure that what you are deciding is the correct interpretation of the law so that you do not end up binding everyone in the wrong direction,” Mathonsi said.
Mathonsi even expressed disappointment at the commonplace nature of the cases that he has been handling at the High Court especially during his time in the civil division, saying these were not challenging enough, but this was because a judge does not choose the cases they handle, but only handles those that are placed before his/her by those that make administrative decisions.
This was in response to questions on the relatively lower number of his judgements that found their way into law reports.
Law reports are legal journals that record judgments of some importance to the legal profession.
“I understand that those who identify cases for law reports are probably looking for ‘uncharted territory’, but the law has been said, stated and re-stated so when you are dealing with several files, but they are all about the same thing, they may not find anything attractive, no matter how much you may try to dramatise the judgments,” he said.
On his reputation among some lawyers and judicial officers that he is one no nonsense judge that suffers no fools gladly, he said this was an unfair label that comes from those that find it hard to follow the ethics of the legal profession.
He said this could be attributed to his background from his days on the disciplinary committee of the Law Society of Zimbabwe where he handled hundreds of cases of some delinquent lawyers, so whenever he comes across such lawyers, he would be glad to find time to “teach” them how best to behave in order to protect the integrity of the legal profession.
He said so sloppy in their work are some lawyers and judicial officers that they make “unbelievable” errors, some things that he said impacts on the quality of the country’s justice delivery system — something he holds dearly — hence his concern.
“I believe that anyone who comes to the court looking for justice should not leave without it,” Mathonsi said.
He said it should be any legal practitioner’s dream that, Zimbabwe, as a jurisdiction, attains very high standards in the justice delivery system such that judgments from its courts are regularly cited internationally, just as local law courts regularly cite judgments from other jurisdictions.
At the end of the interview, Justice Mathonsi left members of the public, who had been following the proceedings with one impression: That he was in the profession out of the passion than any other considerations.
When all others, who are working under the same conditions, are giving one excuse after the other to justify their poor performance — or infact lack of it — he is there to show in a practical way what is possible and what is not.