BSR: A State of Injustice

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Justitia in trouble

Lady Justice is regarded as a universal symbol of justice. She holds balance scales in one hand and a sword in the other. Sometimes she wears a blindfold. The scales represent the pursuit of justice through weighing the evidence on either side while the unsheathed sword stands for transparent enforcement when justice is rendered. Where she wears a blindfold, it is to say that the law is objective and impartial; that it is not affected by extraneous factors. In Roman times, her name was Justitia, representing the morality of the justice system.

When six new justices of the Supreme Court of Zimbabwe were sworn into office this week, they gathered around a large cake that had the image of Lady Justice. Together they wielded a large knife, which they used to cut the cake and, in the process, decapitated Lady Justice. The irony must have eluded both the set of judges and the organizers of the event who thought the cake with Lady Justice and the act of cutting it was a good idea. For the symbolism of judges who have been appointed in a controversial and arguably illegal manner wielding a knife and cutting up Lady Justice is most striking in the circumstances.

For one thing, it conjured up a few puns. One of them is you cannot have your cake and eat it at the same time. But there they were, controversially appointed judges trying to have their cake while eating it at the same time. In appointing the judges while there was an ongoing legal challenge to stop the appointments, the appointing authority was also trying to do the same. This is a period in which the Constitution of Zimbabwe has been seriously stretched following two amendments which were passed in April and May, both of which are fraught with illegalities. It is a time when Zimbabweans have witnessed the unedifying sight of the former Chief Justice, Honourable Luke Malaba clinging on to office. It is usually politicians who cling to office, not judges. 

Malaba reached the retirement age of 70 on 15 May 2021. He should have been preparing for his departure long before this mandatory date. But instead, he was planning to stay in office and hoping desperately to be rescued by the President. The government had already announced proposed changes to the Constitution so that a judge who reached the mandatory retirement age of 70 could stay for up to 5 years. But the COVID19 pandemic arrived unexpectedly and wreaked havoc on the plan to keep Malaba in office. The national lockdown meant the constitutional amendment process stalled.

The problem for Malaba is that the biological clock did not stop ticking towards 70 just because the pandemic had struck. As the months went by, his position became more uncertain and precarious. His future became ever more dependent on the benevolence of the President and Parliament. Together, they form the legislature, and they would be responsible for passing the amendment before his 70th birthday. The excessive speed with which the amendment was passed and signed into law reflected the urgency of the situation. 

But for the ever-scheming Mnangagwa, this was also an opportunity to gain effective control of a pillar of the state that is otherwise supposed to be independent. Malaba had become a lame duck Chief Justice. He needed Mnangagwa more than Mnangagwa needed him. Leaving it too late and then fast-tracking the amendment was Mnangagwa’s signal to let Malaba know he was indebted to him. He had literally rescued the elderly jurist from the abyss, but he is now in Mnangagwa’s debt, a liability that he must discharge at a high rate of interest.

Malaba could have done the honourable thing and retired just like his predecessor, Chidyausiku did before him. As he approached 70, Chidyausiku set in motion the constitutional process of choosing his successor. Ironically, that is how Malaba himself came into office – through an open and transparent process. Malaba had all the time in the world to set this process in motion. But having been afflicted by the Handiendi (I won’t leave) syndrome, he sat back and waited for Mnangagwa’s amendment which would save him. 

Power and the Personal Economy

There are at least two reasons why Malaba has taken this embarrassing path. The first is the disease that afflicts many people in power – the love of power. They might even come in as democrats, with all sorts of promises. But once they have stayed in office, they never want to leave. They would have discovered the privileges of office and they cannot let go of the comforts. Malaba arrived late in the chair of the Chief Justice. He wants more and has succeeded in embarrassing himself in pursuit of more game time at the top of the judiciary. 

The second reason is more practical and personal. If Malaba retired this year, he would have had to go home with a pension expressed in local currency, the increasingly useless Zimbabwe dollar which was brought back into circulation two years ago. After starting at a ridiculously rigged rate of 1:1 with the US Dollar, it is now officially trading at 1:85, another rigged rate. The parallel market rates, which are more realistic, are nearly double the official rate. If Malaba left office on 15 May 2021, he would have gone home with very little to live on for the rest of his life because he would be paid in Zimbabwe dollars. He would have joined millions of pensioners who have seen their savings wiped out by a combination of hyperinflation and erratic currency policies over the years. He does not like that.

The irony is that it was Malaba, when he was Chief Justice, who backed the currency laws. In one case, Zambezi Gas Zimbabwe (Private) Limited v N.R. Barber (Private) Limited (2020), Malaba ruled that it was lawful for a debtor to repay a US dollar-denominated debt using local currency. Considering the difference in value between the US dollar and local currency, this meant the creditor received only a tiny fraction of what it was owed by the debtor.

In another case, Stone Beattie Studio v CABS (2021) had deposited USD142,000 in their CABS bank account. When it wanted to withdraw the money in US dollars, the bank declined based on a new decree under which the account had been converted into local currency. Again, Malaba ruled that it was lawful for the bank to pay out the USD142,000 in local currency. It was a huge loss to the bank customers. 

Now, as the clock ticked to 70, Malaba knew he would have to retire on a Zimbabwe dollar package, consistent with the law that he had validated and upheld as Chief Justice. He did not fancy this position. He did not want to bear the effects of the laws that he validated. So here is a man who is happy to have devastating consequences of ridiculous laws on others except himself. He is like a man who invites others to a feast where he serves his homemade brew to every guest but when it is his turn to drink from the pot he says please pass it on because he is no longer thirsty. The guests are bound to get suspicious and for good reason. The hypocrisy is astounding. The man cannot stomach the products of his own hands.  

The appointment of Supreme Court Judges

The new judges of the Supreme Court are also in a precarious position. They were appointed by the President using Amendment No. 2, which is subject to more than one legal challenge. The reasons why the amendment is illegal have been covered in previous BSRs. The amendment violates the special procedure for amending the Constitution which is provided for in section 328. It has previously been argued extensively that there should have been a referendum before extending the term limit of judges.

Also, section 328 before a constitutional amendment is presented to Parliament, it must be gazetted for at least 90 days showing the “precise terms of the Bill”. There must be public consultations to enable citizens to give their views. While there might be changes to the original constitutional bill, the final bill that is passed must not be materially different from what was originally presented to the people. Now, in the case of Amendment No. 2, the constitutional bill that was eventually signed into law was materially different from the original bill. There were significant changes that were introduced in Parliament, long after the public consultations. This means the citizens were never allowed to present their views on those changes.

For example, many people were surprised that the retirement age of judges of the Supreme Court and the Constitutional Court was raised from 70 to 75 years at the election of the judge and acceptance of a medical certificate by the President. In the original bill, a judge could only have his or her term extended by one year until the age of 75. Therefore, it would be an annual renewal. However, when it was changed in Parliament, the annual extension was removed and replaced by a blanket 5-year extension. This is the reason why Malaba’s term was purportedly extended by 5 years. This is a material difference that affects the validity of the constitutional amendment process and consequently, the validity of Amendment No. 2.

This is just one of the numerous examples of material changes to the original constitutional bill which impacts the validity of the final bill which was passed by Parliament and signed by the President into law. It makes nonsense of the constitutional requirement for public consultations when the government ends up with a materially different bill when it is signed into law. The government can always go to the public with one bill, knowing that it will just introduce changes to the bill afterward which are not subjected

The appointment of the Supreme Court judges was another demonstration of the arrogance and contempt with which the President regards the judiciary. At the beginning of the week, an urgent application was presented at the High Court seeking to interdict the President and the JSC from appointing judges of the Supreme Court, arguing that it was necessary to comply with the constitutional provisions for judicial appointments. When the Attorney General responded to the application, together with the Secretary of the JSC they feigned ignorance and argued that the applicant was acting because of mere rumours. And yet just a day before the court was due to hear the matter, the new judges were sworn in. These two senior officers knew preparations were underway for the swearing-in ceremony, but still, they pretended that the applicant was hallucinating.

The fact that the appointments were done before the court heard the matter which they were opposing shows that President Mnangagwa has no regard for the judicial process. He could have waited until the matter that he was opposing was finalized, but still, he did not care. He will just bulldoze if he cannot get his way. That is the same thing he will do with Malaba so that he stays as Chief Justice for another 5 years who will forever be in his debt. The repayment will be with exceedingly high-interest rates in political terms. The fact of the matter is that with all this mess, Malaba is now damaged goods. He can no longer command the authority that he might have had in the past. If he does stay, he will be known as the President’s man at the judiciary. With him at the top, the judicial arm of the state will be well and truly under the thumb of the President who saved him from retirement with a useless Zimbabwe dollar package.

Free at Last – after nearly a decade of injustice 

Friday 4th June was a great day for Last Maingehama and Tungamirai Madzokere, two MDC cadres that were incarcerated nearly a decade ago, falsely accused of murdering a police officer in Glen View, a high-density suburb of Harare. The two men have suffered irreparable injustice. So much has happened while they were jailed for a crime they never committed. They should never have been arrested in the first place, let alone jailed for that long. I will do a proper analysis of the judgment of the Supreme Court which gave them freedom, but for now, it is important to highlight a few critical issues.

First, the case is a classic demonstration of the weaponization of the criminal justice system. It has been said before that there is targeted abuse of the law against opposition activists. Maingehama and Madzokere were solely targeted because they were members of the MDC. There have been so many criminal acts committed by ZANU PF members against members of the opposition but none have suffered the ordeal that these two men went through. Many criminals walk free in the streets simply because they belong to ZANU PF. If Manigehama and Madzokere were ZANU PF, they would never have been subjected to the injustices they have suffered. It was Madzokere and Maingehama a decade ago, today it’s Makomborero Haruzivishe who is languishing in prison for no other reason besides that he is an MDC cadre. All these are political prisoners.

Second, as the adage goes, justice delayed is justice denied. The two men were repeatedly denied bail both before their wrongful conviction and while they were appealing it. If they had been granted bail, which is a constitutional right, perhaps the injustice would not have been as gross as it is now. Instead, they spent nearly a decade of their lives in jail simply because the justice system is rigged against members of the opposition. They might be out now, but they will never get back the decade they have lost to gross injustice. Everyone in the justice system who was involved must take responsibility for the gross injustice visited upon these two men. This case should serve as a reminder to the justice system to take bail more seriously. Bail is designed to minimize the kind of injustice that is evident in the two men’s case because even though they have now been acquitted, they have effectively served sentences for a crime they did not commit.

Third, considering the gross nature of the injustice, there is a need to hold authors of this injustice to account and to compensate them. No amount of money can ever make up for the harm that the wrongful conviction and jailing caused to the two men. But it is the least they deserve. Under normal circumstances, they should never have to expend legal fees and more time claiming compensation. A contrite state should acknowledge and offer them compensation without being sued. However, the Zimbabwean state is not wired for such decent approaches. Indeed, the state will even oppose a compensation claim, causing the two men double pain.

Maingehama and Madzokere are victims of wrongful arrest, conviction, and imprisonment. Like any other person who has suffered harm at the hands of another, they are entitled to take legal action for compensation. The law of delict or tort has remedies for that. Jestina Mukoko, who was abducted and tortured in 2008, won her claim for compensation against the state. However, it took an inordinately long time before she finally received her paycheque. Still, it is an important precedent in this regard.

Compensation: the constitutional angle

However, the issue of compensation is also a constitutional matter. Section 50(9) of the Constitution provides that, “Any person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention …”. This is an important provision because it imposes personal liability directly upon the person who was responsible for the arrest or detention of the aggrieved person. The idea of direct personal responsibility was extensively debated during the constitution-making process. The reasoning is that individuals in the criminal justice system should not be allowed to hide behind the fact that they were “just doing their job”. However, some of them use this excuse to act unreasonably and in bad faith while committing injustices. One way to minimize this behaviour, it was reasoned, is to hold offending individuals personally responsible, quite apart from the responsibility of the state.

To avoid punishing everyone who is doing their job professionally, the provision includes protection for judicial officers who would have acted “reasonably and in good faith”. This means only a judge or magistrate who has acted unreasonably and in bad faith will be held personally responsible for illegal detention. A judicial officer is only safe if they act reasonably and in good faith. In my opinion, considering the Supreme Court judgment and the damaging findings it has made regarding the failings of the subordinate courts, this is good ground to test the efficacy of the provision in a court of law. 

There must be a thorough investigation by the duo’s lawyers to identify whether the judges and magistrates who handled their matters acted reasonably and in good faith. If there is evidence that their conduct did not meet this standard, this would be a good case to sue them in their personal capacities. For example, was it reasonable for a judicial officer to disregard video evidence showing that Maingehama was attending a church service, far away from the scene and time of the incident? Was it reasonable for the judicial officer to rely on the wrong law leading to the wrongful conviction of the duo? Was it reasonable to take so long to conclude the appeal and to deny them bail pending appeal? These questions can only be answered if the constitutional provisions are tested in a court of law. This is a good case to challenge the conduct of judicial officers and to test section 50(9).

The clause also protects public officers who would have acted “reasonably and in good faith and without culpable ignorance or negligence”. This is like the provision regarding judicial officers, except that it also includes further qualifications. A public officer should not have acted with “culpable ignorance or negligence”. This covers all other public officers such as police officers, state security agents, soldiers, prison officers, public prosecutors, etc. In this case, the public officers in question are police officers and public prosecutors who conducted the investigations and prosecutions. Did they act reasonably and in good faith? Did they show culpable ignorance or negligence in their handling of the matter leading to the wrongful conviction and imprisonment of the two men for nearly a decade?

These are questions that need to be answered through strategic litigation to correct the wrongs that were authored against Maingehama and Madzokere. Again, in my opinion, this is a good case to test the efficacy of these constitutional provisions by suing the individual police officers and other public officers who mishandled this matter leading to the gross injustices suffered by the two men. 

Why personal responsibility matters

These actions against judicial officers, police officers, and prosecutors would, of course, be additional to the legal action against the state which has overall responsibility for the plight suffered by the two men. One reason why it is important to go after the individuals in their personal capacity is that they will bear the cost of their misdeeds. Where the state is held accountable, ultimately it is the taxpayers who carry the cost, not the judicial and other public officers who commit the wrongful acts. Apart from burdening taxpayers, it also means the individual officers have no incentive to stop their bad behaviour because the cost will be shifted to others. 

The second reason is that while no amount of financial compensation can cover the losses that Maingehama and Madzokere have suffered, holding individual wrongdoers to account will set an important legal precedent of personal responsibility for wrongful arrests and detentions. That would be an even greater and more enduring legacy. It would send a chilling message to every officer who works for the state. Individuals serving the state should never take cover under the screen of “I was just doing my job”. If they act unreasonably and in bad faith, they must be held personally responsible for the harm they cause. 

If our legal system encourages this culture of personal responsibility and accountability, there will be less overzealous, malicious, and illegal use of powers by those who work for the state. If that happens, something good might come out of all this adversity that two innocent men, Maingehama and Madzokere, have suffered for nearly a decade.

Dr Alex Magaisa holds a PhD in Law from University of Warwick in the U.K. He trained as a lawyer in Zimbabwe and the U.K and he currently teaches law at Kent Law School, the University of Kent. Alex has extensive experience in and knowledge of Zimbabwean law and politics. He has held positions which have given him a vantage view of Zimbabwean law and politics.