MIDLANDS STATE UNIVERSITY

FACULTY OF LAW

NAME: Kimberley Dawn Katsande

REGISTRATION NUMBER: R243393G
MODULE: Constitutional Law
MODULE CODE: LB139
LECTURER: Mr Mutatu
QUESTION: “Discuss the independence of the judiciary in Zimbabwe since 1980
with the aid of at least 25 cases.”
Introduction

Constitutionalism is the doctrine that a government authority is determined by a body of laws or

constitution. The government authority determined in the constitution is what then brings about
the idea of the separation of powers. Montesquieu expounded the idea of separation of powers
when he explained that power had to be divided in the state amongst the legislative , judiciary
and executive1. The doctrine was brought forth to limit governmental powers together with
enforcing the limitation of these powers. This is done through how the legislature makes laws,
the judiciary interprets and applies them, with the executive enforcing them. In Zimbabwe, the
judiciary like other arms of government has been given the power to operate independently so as
to uphold the rule of law which is a fundamental principle according to Section 3(1)b of the
Constitution2. According to Section 164(2)a of the Constitution, judicial independence entails
that “neither the state or any institution or agency of the government can interfere with the
functioning of the courts”3. However like every other doctrine, judicial independence has
prospects of success and failure as there are different factors which may contribute to the
defiance of the principle of separation of powers.

Theories on Counter-majoritarian dilemma

It is crucial to acknowledge the theories around the counter majoritarian dilemma which refers
to the tension between judicial independence and the principle of democratic majority rule. The
question is whether or not the declaration of an Act as unconstitutional by the courts undermines
the will of the majority and therefore democracy. Bickel explains that no dilemma exists as the
legislature may overlook some negative aspects of a law when enacting it as they seek to see
immediate change within society, whereas the judiciary has ample time to analyse laws and
check if they uphold fundamental human rights4. In Kawenda v Minister of Justice5 and

Footnotes

1. Montesquieu
2. The Constitution of Zimbabwe
3. Section 164(2)a
4. A Bickel The Least Dangerous Branch 1962
5. Kawenda v Minister of Justice and Legal Parliamentary Affairs
Mudzuru v Minister of Justice6, the judiciary held Section 61 of Criminal Law Code and the
Customary Marriages Act (Chapter 5:07 )7 respectively as unconstitutional as they were not in
conformity with the age of consent of 18 provided in Section 78 of the Constitution8. This shows
how the legislature can make omissions in drafting an enactment. Dworkin similarly argues that
there is no dilemma that exists as the majority can vote for an unconstitutional act just like the
minority9. However, Borke argues that the anomaly of judicial independence in a democratic
society is unconstitutional thus the courts must always seek to stick to the original intention of
the legislature rather than repeal these laws10. In Re; Chikweche the courts sort to discover the
original intention of the legislature in the term ‘fit and proper’ rather than deeming the provision
itself unconstitutional11. Thus one can draw the conclusion that if the concept of judicial
independence or review entails that a court can invalidate laws at its will, the principle of
separation of powers is disturbed.

Executive interference in Judiciary by :

a) Appointment of judges

Firstly it is important to note that Zimbabwe achieved its independence in 1980, a period in
which the question of land ownership was at a peak of conflict. The Lanchester House
constitution of 198012, entrenched the bill of rights for the first 10 years after independence. This
was done for the sole purpose of keeping the ownership of land in the hands of the whites
through Section 16 which promoted the right to private property. Magaisa explains that what
happened during that time was judicial capture as there was the removal of old judges by
Mugabe replacing them with judges that largely conformed with existing political ideology 13. In
essence, the Gubbay Court ruled against the governments Fast Track Land Reform Program
whilr the court Chidyausiku Court which came into force around 2001 declared that it was legal.

Foot notes

6. .Mudzuru v Minister of Justice and Legal Parliamentary Affairs

7. Customary Marriages Act Chapter 5;07
8. Section 78 of the Constitution
9. R Dworkin Law the Guardian 2013
10. R Borke The Anti Paradox 1978
At this time the principle of judicial independence, though incorporated into the constitution
wasn’t efficiently upheld. One of the first cases concerning land in which the principle of judicial
independence was not upheld was Commercial Farmers Union v Minister of Lands14. The issue
before the courts was whether the government's acquisition of the farm under the Land
Acquisition Act was lawful. Apparently the requirements and procedures of the act were not
followed thus the courts forbid the government to occupy the lands. The government did not
comply with the order of the judiciary and continued to occupy the lands hence the principle of
judicial independence wasn’t upheld.

However, with the placement of the Chidyausiku Court by Mugabe, there was little to no judicial
independence there after as most of the decisions concerning land were in favour of the
government. The judiciary did not have the autonomy to uphold the constitutional rights of the
people as evidenced in Mike Campel (pvt) Ltd and others v Minister of National Security15 and
Davies and others v Minister of lands16. The applicants in both cases challenged the Land
Acquisition Act which the government used to acquire land stating that it was unconstitutional.
They argued that they were being discriminated basing on race. However, the court ruled that the
Act was constitutional thus both parties lost their land despite having had their rights infringed.
The judgements by the courts best served the interests of the executive which had put them in
power, thus the concept of judicial independence was difficult to observe.

b) The Removal of Judges

Section 187 provides that a judge can only be removed from office when they exihibit inability
to perform tasks, gross incompetence and gross misconduct. This is to be done by the President
with the aid of the Judicial Services Commission. The fact that the executive has the power to
remove judges defies the principle of separation of powers as it gives them leeway to insert their
own emotions if the decorum upheld does not please them. The case of High Court Judge Justice

Foot notes

11. In Re Chikweche
12. The Lancester House Constitution 1980
13. A Magaisa A Brief History of Judicial Capture in Zimbabwe 2013
14. Commercial Farmers Union v Minister of Lands
 Benjamin Paradza 2006 creates an assumption that a judge can be treated cruelly if they fail
to comply with the desires of the executive. Paradza was arrested at the high court on the
allegations of of subverting the course of justice just after he had ordered for the release of
MDC Mayor from prison.This generally instills fear in judges giving them the urge to make
decisions that please the executive so as to keep their positions and avoid inhuman treatment.
Similarly the removal of a judge in the case of Ndewere v President of Zimbabwe and others
was unconstitutional. The applicant argued that her suspension was illegitimate as the
proceedings instituted against her did not conform with the provisions of Section 187(3) of
the constitution. As such unconstitutional removal of judges threats the independence of the
judiciary to fulfill their duty to the state and the people.

The case of Kika v Minister of Justice is a significant case which shows the interference of the
legislature into judicial affairs in terms of the removal of judges. Section 186 of the Constitution
of Zimbabwe explains that A judge of the constitutional court can be appointed for a non-
renewable term of not more than 15 years but the term expires as soon as they reach the age of
70. In this case, Malaba had reached the age of 70 but wanted an extension of the tenure which
required a referendum. The enactment of a new constitutional amendment through the approval
of the President of Zimbabwe allowed him to extend by five years. However, Kika argued that
the amendment was unconstitutional because the lawful procedures for . Rickard contends that
the legislature's and executives contribution to Malabas extension of office was an attempt by
the executive to consolidate power in all arms of government.

c) Defiance of judicial orders

As early as, 1982 the judiciary despite all the authority it has been given by the people have been
seen to have decisions being disregareded by the executive. Section 165( 1)b states that in
exercising judial authority, justice must not be delayed. However it is prudent to note that the
courts may be efficient in delivering the judgement which pursues justice but those who ought to
carry it out may not do so on the basis of wanting to serve their own interests. In the case of York
brothers of 1982, two brothers were charged with unlawful possession of arms but the witness
fled the country before they could be detained. Despite the absence of a witness, the police went
on to detain the York brothers twice regardless of the judiciarys outcry for their release on the
basis unlawful procedures of detainment. Apparently, the president Mugabe at that time was
behind the continuous detainment of the York brothers despite the judiciarys order for their
release. A case of similar interest in which judiciary independence was not upheld is that of S v
Tsvangirai in which Tsvangirai wrote a letter to the judiciary appealing for the bail of his deputy
minister of Agricultulture. A member of the executive writing to the judiciary was a threat to
judicial independence thus Tsvangirai was advised not to intervene.

The defiance of judicial orders by the executive was also seen in the case of Chavhunduka and
Choto v Minister of Home Affairs. The army and the police refused to obey an order of the
Supreme Court that required them to present Choto and Chavhunduka in court who had been
abducted and held by the military in relation to an article they had written concerning a coup.
The case of Jestina Mukoko v Minister of Justice and Parliamentary Legal Affairs, also shows
how the executive interfered with the protection of human rights by refusing to compensate
Jestina Mukoko as had been directed by the judiciary.

Furthermore, two high-profile case which show direct interference of the executive into the
judiciary involved the treason trial of Dabengwa and Masuku former Zipra commanders and the
sabotage trial of S v Slatter. In both cases, the executive contested the acquittal of the persons
involved and in some scenarios, ministers openly attacked judges and also re-detained acquitted
persons. Magaisa in his article explains that the Home Affairs minister at that time accused the
judges of showing racial bias and not being in tune with the government. The statement alone
shows how the executive expects the judiciary to hold the same sentiments as its own and is less
likely to conform if the contrary is true.

Upholding of Judiciary Independence

a) In terms of judicial orders

Despite the assertion by various scholars that the principle of judicial independence is only
feasible in principle and not in pragmatics, then are instances in which the executive has
complied with the judgements of the judiciary even though it was a disservice to them. In Sv
Ndlovu the governer at that time Sir Humphrey Gibbs stated that “ My minister has received the
clearest assurance s from her majesty government that they cannot revoke or ammend the
Constitution” The statement is clear testimony that the executive can disassociate itself from the
powers and decisions of the judiciary in an interest to uphold them. In the case of S v Banana one
can argue that the rule of law was upheld hence judicial indepence was observed. In this case the
courts had the task of determining whether the common law criminalizing sodomy was
constitutional and though it wasn’t in terms of Section 3 of the Constitution, they concluded that
Banana was guilty. Judicial independence was upheld in the sense that the court had the
jurisdiction to interpret the law the way they saw fit and the judgment was upheld despite him
being a former member of the executive.

b) Protection of fundamental human rights by the decisions of the courts

The concept of judicial independence entails that the judiciary ought to act as a system of checks
and balances of the legislature and the executive. Their sore purpose is to determine whether
other arms of government are upholding the rule of law which includes the protection of
fundamental human rights and have the independence to alleviate people who have been
oppressed as stated by Section 165(1)c. Thus it is prudent to note that Zimbabwe has had its fair
share of wins regarding this issueIn CCJP the doctrine of judicial independence was efficiently
upheld because the executive did not undermine the judgement made by the judiciary. Four
prisoners who had been convicted of murder and rape were sentenced to death but the executive
kept them for 52 months without sentencing them to death. The applicant appeared before the
court alleging that the delay in the death sentence defiles their right to freedom from inhuman
and degrading toture according to Section 15 of the Lancester house constitution. Gubbay CJ
concluded that the executive had indeed violated the rights of the four prisoners hence they had
to lift the death sentence and give the life sentence instead. The executive complied with the
judgement of the judiciary regardless of them being on the wrong.

In the cases of Shaw v Registrar General and Mawere v Registrar General, the courts were able
to protect the rights of the applicants concerning citizenship without resistance from the
legislature or government offices. In the first case the applicant was denied the right to acquire a
Zimbabwean I.D by the respondent on the basis that he had not proven his mothers citizenship
and that he had to renounce his South African citizenship. In the latter, the applicant was denied
an I.D because he was a citizen of South Africa by registration. In both cases the courts ruled that
as long as they were both Zimbabwean by birth, they were not required to denounce their dual
citizenship so as to get Zimbabwean identification cards. Similarly in Piroro v Registrar General
the judiciary protected the applicant from unconstitutional procedures which they were required
to do inorder to acquire national identification. Thus judicial independence was upheld in terms
of protection of human rights by the decisions of the courts.

Legislature interference in Judiciary

a) Defiance of judicial orders

In 1988 the case of Smith v Mutasa was brought before the courts in which conflict between the
legislature and the judiciary rose. Ian Smith, was suspended from the parliament on the basis of
misconduct in South Africa and was denied renumertaion. He applied to the Supreme Court on
appeal and the court held that the decision made by the high court was wrong stating that the
matter was one of parliamentary privilege and deprivation of money was unconstitutional. The
courts ordered that Smith be given his renumeration but the speaker of parliament refused to
uphold the decision of the Supreme Court. This was yet another case in which individuals
refused to comply with the judgements of the court thus defiance of the principle of judiciary
independence.

Furthermore, the legislature was seen to be overturning the decision of the judiciary in the case
of Rattigan and Others v Chief Migration Offficer. The applivants were 3 Zimabwean women
who were married to foreigners and were being denied citizenshop by the respondent.The courts
ruled that it was a violation of the rights of the women to not be discriminated on on the basis of
race as expounded in Section 3 (2)i. The legislature, nonetheless overturned the decision of the
courts that the women be given citizenship.
BIBLIOGRAPHY
Books
Bickel A (1962) The Least Dangerous Branch
Madhuku L (2010) An Introduction to Zimbabwean Law Weaver Press

Articles

Carmel Rickard21 May 2021 Malaba CJ Retirement Case

Alex Magaisa BSR; A brief history of judicial capture in Zimbabwe April 8 2016

Legislation

The Constitution of Zimbabwe Ammendment (no. 20 ) Act of 2013

Cases

Chavhunduka and Choto v Minister of Home Affairs 2000 (1)ZLR 533

Catholic Commission of Justice and Peace v Attorney General and another 1993(1)249

Commercial Farmers Union v Minister of lands 2000 (2) ZLR 469 (5)

Dabengwa and Masuku Case 2000

Davies and others v Minister of lands 1996 (1)ZLR 681 (S)

In Re : Chikweche

Jestina Mukoko v Attorney General SC 11/12

Kawenda v Minister of Justice and Legal Parliamentart Affairs

Kika v Minister of Justice and Legal Parliamentary Affairs

Mawere v Registrar General of Citizenship

Mike Campel Pvt Ltd v Minister of National Security responsible for Land, Land Reform and
Resettlement and another SC 49/07
Mudzuru v Minister of Justice and Lega Parliamentary Affairs

Mupungu v Minister of Jugdes and others

Ndewere v President of Zimbabwe and others

Piroro v Registar General of Citizenship

Rattigan and Others v Chief Migration Officers 1994 (2)ZLR 54

S v Banana 2000 (1) 607 (S)

S v Paradza 2006
S v Slatter 1983(2) 73 S
S v Tsvangirai 2008
S v Ndlovu 1983 148 SC
Shaw and anor v Registrar General of Citizenship
Smith v Didymus Mutasa 1989 (3)ZLR 18
York Brothers Case of 1982
he legislatures contribution in helping Malaba consolidate power even after his tenure of office
was a clear violatation of the doctrine of judicial independence.