HOW many of us still remember the Mhuriro case?
The then white-dominated “Zimbabwean” Bench had made a number of landmark remarks and rulings, both off-bench and on-bench, on the thorny issue of land.
By 2000, it became very clear to the political leadership that the land question would not be solved through the “rule of law” as understood then.
The “law” that had to “rule” was decidedly white, not so much in the sense of a racial group as in the sense of a propertied group, most if not all of it white.
Ownership tended to have a colour and Manheru does not become a racist by pointing such an obvious feature of settler Rhodesia. In fact on the issue of national real estate, "owners" all came in that white colour.
White law, white rule
And if the law was white, so was its rule.
The predominantly white Judiciary (this time in the sense of colour) had the prerogative of a stranglehold on the Bench, not just by way of grade, but also by way of the dominant interpretative ethos.
Even the numbers tended to favour this same colour.
The spirit of the law was, quite inevitably, decidedly white.
So the notion of “rule of law” in the circumstances of an agitating black Zimbabwe, had a meaning that was peculiar to the country’s history, politics, economics, culture and as a consequence of all of the above, to its race relations.
The man with a verdant beard
Symbolically perched on the second echelon of the Judiciary edifice was a man called Godfrey Chidyausiku, previously an attorney-general, in fact the country’s first black attorney-general.
His image in that previous capacity still hounds my memory.
His head-and-shoulder official picture suggested the poise of a man “shot” while standing akimbo, diti rakabuda kunze.
But that was not the striking feature. What was striking was his verdantly black beard which suggested a circumstantially kempt guerilla fighter trimmed for a new assignment away from the bush.
He had not been one. His younger brother — Bonny Chidyausiku, now ambassador — had been.
But in political temperament, he might as well have been one. He was fierce nationalist but one who had to survive as an “internal” inside the country.
He had remained inside and could not have taken the posture of out and out defiance that we associated with say Herbert Chitepo, the architect of the liberation struggle.
So would it be in heaven…
During this white legal era, Godfrey Chidyausiku was the Judge President, meaning he manned the penultimate echelon of the judicial machine.
What his level did, the Supreme Court reviewed without itself inviting any other or further review — on this earth at least.
Where real judicial power lay was never in doubt. Maybe the fact that most of the judges who occupied the Supreme Court then enjoyed excellent health — seemingly infinitely, seemingly immemorially — could very well have supported the belief that as they deemed it in their Court, so would it be even in heaven.
Of course their excellent health owed more to other things, not least the fact of their colour and circumstances, as defined by the colonial past and the post-independence present which seemed to grant them the privilege of having life and having it abundantly!
In the spirit of allaying white fears, winning white confidence to obviate a skills exodus, the President, then as Prime Minister, had decided the Bench would not be touched, would only Africanize at the pace dictated by mortality of existing Judges. And the Almighty seemed to take his sweet time.
The law in early Independence
Even at that penultimate level, Godfrey had a marked white circumscription by way of judicial busy bodies, all of them leftovers from the colonial era.
His peers were white, predominantly, whites of strong will and enormous influence. For a long time he was perched atop that level, symbolically in charge.
Save for the forbidding professional practice, an autobiography from that learned man would throw enormous light on the politics of the early decades of our Independence as these related to the law and its interpretation and enforcement.
I have deliberately developed this issue as if I do not remember that Justice Dumbuchena (that is how I want to spell it) was the first Chief Justice. Or that the Gubbay Bench had a judge or two who were black.
I am aware and may wish to deal with that matter some other day.
Today, I am on Justice Godfrey Chidyausiku, the man presently at the helm of our Judiciary. I made mention of the Mhuriro case. I will not deal with this case as a legal proposition.
I won’t. I can’t.
Simply, I lack the expertise. But I know the circumstances which gave rise to it, indeed may have been part of its development. I just want to recreate the milieu within which Mhuriro arose, and within it what role the current CJ played.
Journey to nowhere
Zimbabwe had a judgment hanging over it, a judgment passed by the highest court in a case involving new black settlers and white farmers.
The case was key to both sides: to the white farmers who sought permanent protection; to the black Government which badly sought an enabling judgment with which to meet the land hunger.
Kumbirai Kangai, then as Minister of Lands had listed, listed and listed pieces of land which the Government of Zimbabwe sought to acquire to assuage the land hunger in the countryside.
He would do so repeatedly under the Land Act as we had it then.
Each attempt hit a snag or snags, in most cases founded on mere procedures.
Affected white farmers — what a highly organised lot these blokes where — would just pick on one of their number to challenge the Minister's legal intention to acquire, to challenge the legal notice.
That was enough to crumble the whole effort, taking Government back to the drawing board. It meant a whole host of things, persons and institutions.
It meant parliament; it meant the Ministries involved; it meant structures; it meant the bureaucracy; it meant the Politburo, the Central Committee; it meant land identification arms; ultimately it meant drafters who translated acquisition intentions into law.
A Drafting game
I hope we have on our statute books a more reviewed piece of legislation that the Land Acquisition Act.
Or a law that defied perfection even after numerous Godly amendments.
At that time no one remembered that Rhodesia had left or planted a fiercely able group of white drafters to mind its interests.
And these guys — they still live and work as before, only elsewhere — were most adept at embedding subtle loopholes which would become glaringly obvious under white challenge and under the review of the predominantly white Bench.
It became very clear that herein lay the problem that needed a quick remedy. Government saw the need but soon discovered it did not have the means for impromptu intervention.
Whether fortuitously or by design, our law school and our law graduates would routinely shun the area of drafting.
Or if they tried it, would not stay long enough to master the ropes. Or if they did, they would go elsewhere sooner, not later. That area and the one to do with law development.
Clear skills deficit areas. I doubt very much if at the time anyone saw the link between this yawning need, the white Bench and the reversal of empowerment efforts as these related to land.
When the law was no release
But frustration mounted within political circles and increasingly, words denoting more drastic action crept into the vocabulary.
To this day, history is yet to acknowledge how the white notion of “rule of law” was actually provocatively instrumental in the final form that resolution of the land question assumed in this country.
The Bench whose white Head had in fact solicited farmers to approach the Bench for a legal stopper, had failed to play safety valve to a simmering national pot.
Gubbay’s legal solicitation to white farmers well before land-related litigation, is there as a public document.
The Bench had canvassed a case, canvassed a client who happened to be a racial group. Indeed, this became an issue when Justice Gubbay was finally confronted by the political leadership.
Way out of legal imbroglio
But my story is about Justice Chidyausiku.
As should be clear from the above narrative, early 2000, Government land reform proposals faced a dead end, a cul-de-sac.
The only way out was for Government to defy the Bench, with all the attendant consequences. There was not much appetite for that.
After all the President was a lawyer and tended to be alive to its dictates as these related to governance.
I remember him restraining war veterans at the seminal Chinhoyi meeting.
“Until we get to that stage where Government shows it has been so undermined as not to be able to acquire land, please do not exercise your radical options,” he appealed.
The accent was on finding a way out, within the strict confines of the law.
I remember many sessions which were held — night long in one or two cases — involving many patriotic Zimbabweans one of whom is routinely reviled by mouths that speak for heads that carry nothing.
A way out of the legal imbroglio had to be found, soonest too.
The result was the Mhuriro case, itself a legal gamble if you ask me. Faced with prospects of a Supreme Court sanctioned summary eviction of all blacks on the so-called “white-owned land”, Government had to act fast within the law, or act slow thereby risking a drastic narrowing of lawful options.
Soon they would be widespread violence in the countryside as blacks resisted evictions, as whites sought them. It was in those menacing circumstances that a decision was taken to mount a class action in defence of all people whom had benefited from land acquisition, and who thus stood agitated and directly affected by a court action they had not been party to.
Mhuriro and the Judge President
Trips were made to Mhondoro, trips by night and the hero of that leg-work sits in Parliament today as an MP for one of the Masvingo constituencies.
I did not seek his permission to publish his name and so will not do so.
Then he served as an officer of Government.
That is how old man Mhuriro was fished from obscurity and indifference, to well into the annals of local land struggles.
This case pretended to be new and thus unaffected by the Supreme Court judgment whose citation I do not have as I write. In reality, it was a response to it, which in effect was an attempt to use a lower court to review the judgment of the highest court in the land.
Mhuriro “went” to the High Court where Justice Chidyausiku was Judge President.
What followed was unprecedented and could very well pass for a major development in the professional life of Godfrey.
The matter was admitted.
It was put on the roll. More stunning, the Judge President assigned it to himself.
He didn't have to. He did all the same. I don't want to believe he was unaware of the implications of his decision, firstly to his career, and secondly to the stability of the Bench.
This is mere surmise. I may never know. Zimbabweans may never know what it is that got muzukuru waVaHera to go down that clearly hazardous path.
When the lower challenged the higher
I do not have to be faithful to the detail of the case, or to be faithful to the language of the learned ones.
I am not writing for that proud tribe. The long and short of it is that Judge Chidyausiku heard the case and ruled in favour of Mhuriro the peasant from Mhondoro. Overnight the Supreme Court judgment stood stayed, stayed by a lower court.
A precious reprieve to thousands already on the land. A precious reprieve to security forces who had been "injuncted" to enforce evictions. I can only imagine two courses of action open to Justice Gubbay as CJ then.
He could have charged the Judge President with insubordination.
Or he could have summoned his legal skills to rule the “trespasser” out of legal order, of course by way of another Supreme Court judgment. Whichever course he would have taken would have had the effect of undermining the Judge President, questioning his legal skills even. Again, I am sure Judge Chidyausiku must have known or at the very least had a presentiment of that possible nasty and demeaning turn of events. But he did not baulk.
A cosmic clash
I can only see why he would not have hesitated. Justice Gubbay could not have exercised either of the two options without throwing a spotlight on the workings of the Bench: its temperament, its claim to impartiality and social justice and its canons of interpreting the law.
After all, Chidyausiku was not just another judge. He was the Judge President. An altercation pitting him against the Chief Justice on scope and interpretation of the law in the contest of a well known social injustice of glaring and obvious historical and racial resonance, would certainly not be a small affair, let alone one confined to the two and four learned walls of the court within which they would have had to fight it out. Government would be interested. Blacks would be interested. Both would prepare grounds for a cosmic clash.
Even judges do also cry
Clearly Godfrey Chidyausiku is a round and therefore complex character. He cannot be one thing. That would make him a vignette. But for me, this matter - the Mhuriro case - told me who he is, and possibly what history will highlight when his good Lord calls him from this earth. On 10th January, 2011, Justice Godfrey Chidyausiku - this time as Chief Justice - gave an address marking the official opening of the legal year. The speech has been reproduced by the Herald, correctly so in my view. It was a landmark address. Something else has happened. The political NGO sector, including the Law Society of Zimbabwe, has showered the CJ with accolades over that speech, again correctly so if you ask me. The only thing which is not poignant about that address is probably the salutation. Everything else passes for seminal legal points which history cannot ignore. He reviewed the legal year that had gone by; he explained its perceived anomalies; he spotlighted each and every court system. He vented his representative frustrations as an employee of the State who needs enough tools and a sufficient wherewithal. Yes, all Judges, including those with chiefly status, do also cry.
The narrow point that touched all
The speech humanized the Bench, not through maudlin sentimentality, not through gratuitous bitterness and whining self-pity. But in a way that laid down a fundamental principle on which rests the notion of an independent Judiciary. In his own profound words, "In my view, it must be a sobering thought to all of us in the Judiciary that, whilst the move from the Public Service into the Judicial Service will enhance the independence of the Judiciary, it does not come with an independent source of funding. The Judiciary still has to make recourse to Treasury for its needs and the constraints on the national purse are still self-evident." The CJ proposes a wider funding formulae, but one that shields the Judiciary from undue influence. He seemed to make a narrow point for the Judiciary, yet he might as well have spoken for all Commissions.
The RBZ and the Bench
You feel the enormous self-restraint with which the CJ is making the above point. There are things he cannot say, hoping the rest of the arms of State get them all the same. It is the role of commentators to put these implied points more explicitly. It is worth recalling that the idea of a Judicial Service Commission was conceived well before the Inclusive Government for exactly the same reasons the CJ states. However the implementation of that idea was fated to take place under new conditions of inclusivity. Preceding all this were attempts by the Reserve Bank of Zimbabwe to ameliorate not just the conditions of Judges but also the conditions in courtrooms themselves. This intervention by the RBZ drew enormous fire, principally from the MDC in its various political NGO ramifications. Included in voices that decried this move was the Law Society of Zimbabwe which today speaks in support of the CJ and his quest to improve the affairs of those on the Bench.
Independence in a sorry, tattered state
With the purse of the country under a lawyer who has agitated so much for the independence of the Judiciary, one would have hoped for a suave CJ wearing the face of a profession whose time has come. Tendai Biti does not need any more persuasion than that of his claimed convictions to make right what has been so wrong and inappropriate for the Bench. Yet he has not done so, deciding instead to give the Bench a paltry allocation. It is not just the Bench alone; it is also all those constitutional bodies for whose creation the MDC agitated. Why starve the much awaited baby soon after delivery? But that is a simpler point to make. How are things meant to work out for a Judicial Commission whose Head is the Chief Justice of the country? He is supposed to lead a Commission budget team to defend Commission bids? Which means appearing before whom? Finance Secretary Manungo or his underlings? Or before Minister Biti? And when funds run out midterm as they are wont to, the CJ is supposed to reach for his cellphone and connect with Minister Biti to ask for more? Like some little Pip before a male Havisham? To leave that idea of an independent Judiciary in what sorry state?
Kaiser after defeat?
I would not have had problems with this if it was sincere fumbling for direction on the part of the Inclusive Government. But we have seen this model of reform before in the context of inclusive politics. The RBZ is a classic case in point. From day one of the Inclusive Government, we saw spirited efforts at running this banker or bankers aground, spirited effort to deligitimise it, to harass its officers. To squeeze it until its pips squeaked. You almost thought RBZ was some defeated Kaiser after World War 1. RBZ assets were auctioned. RBZ was hauled before the courts. Spirits were broken and humiliated until its Governor had to go to Finance, groveling, begging bowel in hand, like a mendicant. That is where Gono is now - once a big man surviving on a pittance, on shoestring grace of the Minister. That is where RBZ is. And God-like, the Finance Minister doles out, little by little, little by little, to expectant, desperate mendicants. The result has been the fiscalisation of monetary policy in the sense of the Finance ministry running the show, both directly and indirectly through partisan board appointments. Are we in an era where the national budget is used to subdue, is used to levy loyalty, is used to augment ministerial powers, is used to resolve the so-called outstanding issues under the GPA, indeed is used to create new ones? What is the idea behind contriving this financial anemia in certain parts of Government while others are financially obese, relative to the rest? Is the idea to place the Judiciary under Finance Ministry, to induce financial coercion for predetermined outcomes? Against what was attempted with the Finance Bill, it is difficult to read bona fide errors.
The burden of agreeing with the CJ
The CJ boldly tackled the issue of separation of powers, itself the issue which has drawn much comment. I do not need to quote directly from him on this one. Most of the quotes from his speech came from this section. Suffice to say he abhorred unsolicited advice from other branches of the State, and the undermining of the sub judice principle. Interestingly, no one seems surprised that the CJ made this complaint. That suggests we all know what prompted it and when this was done. Why didn't the Law Society of Zimbabwe make the very points which the CJ made only this week, at the time of the offence? Why didn't the so-called Lawyers for Human Rights make the same points at the time of the infraction? Surely we know who sought to instruct the courts to release Bennett? Surely we know who summoned Chinamasa over the SMM affairs ahead of court verdict? Yet there was silence or ululation from this province which is only seeing the potential hurt now that the CJ has spoken about it. Is minding separation of powers not part of their chores? As agreeing with the CJ a year later their only role? Have they not been accusing and attacking the same CJ for delivering the Bench to Zanu (PF) before the Inclusive Government? How has he got it so right now to speak for them? Since when has infringing with the courts become such an innocuous offence as to deserve a phlegmatic response, phlegmatic enough to need another legal year to come? Or are we being told there are some offences which are above instant scrutiny, which deserve eventual supportive censure? Or that there are some princes whose sins are not so sinful to deserve to be washed away immediately? Where is Beatrice Mtetwa? Where are the award-givers for standing up against judicial threats? Could the Herald be a candidate? Or the CJ? There is something that smacks of hypocrisy, profound hypocrisy I must say.
Lastly, the CJ went out of his way to explain the seeming backlog in cases before the Supreme Court and other courts. He said: "Our court system is adversarial and it is party driven. When a party files an application with the Supreme Court, the Court will not take it upon itself to set the matter down for hearing. Our Rules provide that the party seeking relief from the Court will do all that is required in terms of the Rules to prepare the matter for hearing. It is only when the Registrar is satisfied that all the Rules of the Court have been observed that a matter is then set down. This explains why some applications take long before they are heard. The parties would have set back after filing the application with the Court and the other side would have equally not demanded action by the applicant. The Court has no role to play in making matters ready for hearing."
Silence as a lie
For once I thought the CJ was referring to political parties! Of course he is referring to plaintiffs and defendants. Why is non-legal Zimbabwe hearing this for the first time from the CJ when we have a whole Law Society of Zimbabwe which is required to raise legal awareness and also to review the quality of justice delivery through impartial, unadorned reports? Why do we see in most of its reviews allegations that the court system manages outcomes by simply not setting down political matters for hearing? That judges are rigging the justice system through inordinate delays?
Managing political parties through courts
The CJ uses "parties" with constructive ambiguity. If anyone had pressed him a sentence more, he would have revealed that most if not all such cases involve political litigants, political parties. The only other sector that spewed as many cases was that related to white farmers. And there is a link between these two sectors. What is the CJ saying, beyond his polite address? He is saying the appellate is being clogged by vexatious applications. Political parties have now developed this nasty habit of using the court system as a dumping ground for their insoluble differences. Courts have become places for depositing impasses. Parties do not approach the courts for redress, only to park their disputes and to save face. You have a political party and a leader who promises his supernumerary underlings nonexistent posts somewhere in the bureaucracy, all that promise founded on a hopeful outcome to a non-GPA issue. When that fails, the principal approaches the courts on clearly untenable grounds. A while later political mediation is successfully instituted and resolves all outstanding issues on the matter. The principal is then asked to withdraw his case against the new situation. He refuses saying: "I had promised my people posts. I cannot go back to them to say those posts are no longer forthcoming. They will think I am not negotiating strong enough. They will rebel. Maybe I should just leave the matter in the courts for determination in whichever direction. I can then use the determination to tell my people that the posts are not forthcoming because the courts will not allow it." It is called leadership by the courts. Need we wonder why the CJ is complaining?
I said my point related to Chief Justice Chidyausiku. The accolades to him create an impression that the man has finally and to much relief, stumbled on legal sense. Or has just found the courage to say out the taboo. Or to imply that he now has been accepted into the fold of the real legal fraternity. To think so is to abuse the man, which is what I think this bevy of NGOs is trying to do. Go through all his judgments, couple them with the Mhuriro case, and you have an idea of what kind of a senior law officer he is. Indeed, what kind of a Zimbabwean he is. For far too long, we have judged judges by how they revere and defend white interests, against the express interests of justice and common aspiration. It has not been about the law and how well it is interpreted. Rather, it has been about "sacred" white interests and how these should be served by the law. We have elevated white interests - dubious white property rights - to the hallowed status of canons of judicial processes. We have faulted judges not on principles of law but on perceived desecration of historically and racially determined white rights. We expect our judges to be servitors of the white world. Best judges are "white" judges. Best rule of law is the rule of interpreting the law for white interests. It is an anti-us philosophy which we push through with masochistic delight. Why would a whole Prime Minister burn governance propriety for some white man called Bennett? Why? I fail to grasp this level of self-immolation. This, to my mind, is what Godfrey Chidyausiku, the country's CJ, has put a stop to. And that his speeches and the underpinning legal principles and interpretations are now receiving accolades from unexpected quarters, clearly shows what ground the black cause has gained since the days of mudhara Mhuriro. Take heart CJ. It has not all been in vain. Wakaita basa, wakarova ndima chizukuru. Icho!