A battle of the titans has ensued between President Emmerson Mnangagwa and the highest court in the land after the first citizen threw down the gauntlet by accusing some of the Constitutional Court (Con-Court) judges of corruption.
Mnangagwa who has declared an all-out war against graft told traditional chiefs at the 2018 Annual Chiefs Conference in Kadoma a fortnight ago that there was “a cartel of corruption” starting right in the apex court, and signalled that no one will be immune to the reforms he is pursuing in other key areas.
“We take all the cases of corruption to the judiciary. We are hearing now that there is a cartel of corruption starting from the highest court — Constitutional Court — to the magistrates’ courts but we are going to deal with that,” Mnangagwa fumed, without disclosing the names of judges linked to the alleged judicial corruption.
This is probably the sharpest criticism of the judicial system by a sitting president since independence.
At the height of the land reform programme in early 2000s, then president Robert Mugabe took great exception with the bench after it became a major hindrance to his angry mob policies that allowed for land seizures without compensation to the former white commercial farmers.
The tiff saw then Chief Justice Anthony Gubbay being forced to take early retirement in 2001 and replaced by a pliant Godfrey Chidyausiku, now late.
Mnangagwa has made the fight against corruption his biggest draw card as he seeks to rejuvenate the country’s tottering economy, plagued by rampant graft.
This comes amid concern that judges, aided by disreputable lawyers, have been bending justice, granting frivolous injunctions, allowing unmeritorious appeals and simply giving official thieves mere slap on their wrists upon having their palms greased.
But the president’s call has landed him in deep trouble with those who advocate for the separation of powers between the arms of the State.
Legal experts told the Daily News on Sunday that the correct thing to do would have been for Mnangagwa to establish a committee of inquiry into the bench’s behaviour which could ultimately lead to the removal from office of graft-accused justices instead of issuing a sweeping statement that has the effect of undermining the independence of the judiciary.
Arnold Tsunga, Africa director at International Commission of Jurists, said what the president has done has the potential to destroy public confidence in the judiciary as he has accused judges in a vague and embarrassing way without naming any one specific.
Chief Justice Luke Malaba has also been complaining openly about corruption being rife in the judiciary, saying the public is getting frustrated by the drive against corruption which has become more about creating media hype and less about nailing the suspects.
Tsunga, a former secretary of the Law Society of Zimbabwe (LSZ), said the vague accusations by Mnangagwa undermines the institutional independence of the Con-Court and also breeds suspicion among legal professionals.
“In any case of suspected misconduct of a judge in a way that is serious enough to warrant possible removal, the procedure is through an impeachment that is initiated by the president at the instance of the Judicial Services Commission (JSC),” Tsunga said.
“Instead of going through this legal and credible procedure and speaking after the process is done, the president has rather chosen to go for optic politics by addressing the public in a way that puts the judicial institution into serious disrepute. Other than undermining the judiciary and public confidence in justice administration, it also potentially causes fear and anxiety for judges who deal with corruption cases and this may result in prolonged detention of suspects and wrongful convictions and serious miscarriage of justice.”
The former executive director at Zimbabwe Lawyers for Human Rights said judges like all people in Zimbabwe are personally liable for any criminal conduct if proven.
“This means that they have to have their immunity properly removed if they are suspected of committing crimes and prosecuted in the normal way guaranteeing their right to fair trial like everyone else including being presumed innocent until proven guilty.
“Again this procedure that is open to the authorities has not been used, the president preferring to cast aspersions on the whole bench,” Tsunga said.
“The public will be within their right to question the sincerity of the president given that the perception is that corruption has become endemic and no branch of government is holier than the other.”
Mnangagwa’s attack on the Con-Court bench has spawned speculation that it could be a precursor to a shake-up in the Con-Court.
Corruption investigations into judicial bodies in Zimbabwe are rare.
Only one High Court judge Benjamin Paradza has been convicted of corruption for trying to intervene in the case of a business partner who was charged with murder in 2006.
Leading lawyer Dewa Mavhinga called for the official opening of a criminal investigation against Con-Court judges if Mnangagwa suspects there was corruption in the apex court, saying the president’s untested accusations gravely undermine the authority of the top court.
“To deal decisively with corruption within the judiciary, the laid out constitutional procedures should be followed within the framework of the rule of law,” the Human Rights Watch southern Africa director told the Daily News on Sunday.
“The fight against corruption is urgent and needs a comprehensive approach through credible independent institutions. The fight against corruption cannot be a matter for political rallies, especially if the president suggests the judiciary has become compromised because there are laid out laws and constitutional procedures for dealing with the judiciary because it is an independent arm of the State. If the Executive overplays its hand or controls the anti-corruption fight, that could trigger a constitutional crisis.”
Analysts said the president must disclose the names of the corrupt judges, and the JSC must ask them to submit their written responses to the accusations.
The JSC will then examine their responses before deciding whether to open a formal investigation into the accusations, in which case, the accused judges would have to be suspended.
Piers Pigou, senior consultant at the International Crisis Group told the Daily News on Sunday: “This is an astonishing admission for the president to make publicly.
This information may come from the anti-corruption unit he set up earlier this year, somewhat controversially, in his office.”
Stephen Chan, a professor of world politics at the London School of Oriental and African Studies said the president must take prompt and resolute action to redeem the image of the judiciary.
“It’s tricky as the judiciary is meant to be independent and, normally, has its own policing mechanism.
“Where this is not functioning, the President may demand it function or exercise such powers as he may have to influence its composition — but this gets into dangerous territory,” Chan told this publication.
Chief Justice Malaba has equally been critical about the judiciary and is known to be leaving no stone unturned in his quest to uproot the vice wherever it exist.
He recently told a JSC workshop in the capital last month that judges have been laundering criminals.
“Excitement and expectations are being made in the media but then things start to happen. Bail is granted then it is remand and remand and remand,” Malaba said, adding corruption is an anti-thesis of the rule of law.
“You are not there to be influenced by the status of the person before you; you might have known him as minister so and so. You don’t have to think of the person but the allegations of misconduct against the person before you.
“We don’t want to hear of cases that are rolled over and over and over…like we are afraid of something.”