Public Interviews Expose Mediocrity on the Bench

16 Jul

Public Interviews Expose Mediocrity on the Bench

Alex T. Magaisa

Yesterday, I posted a blog on the new judicial interview process in Zimbabwe. On the same day, the Judicial Service Commission interviewed candidates to fill vacancies at the Supreme Court. All candidates were either judges of the High Court or the Labour Court seeking elevation to the Supreme Court.

From the running commentaries of colleagues who witnessed the event and the press that has reported on it, it looks like it was a spectacle that did a lot to expose the quality of the bench. A few candidates received good reviews but a lot seem to have been exposed for their lack of depth. I remember making a remark after reading some of the commentary that it looked like the greatest threat to the judiciary was not a lack of independence but the questionable competency of the judges.

The most glaring example of the competency gap is that one prospective candidate was apparently asked to differentiate between an “application” and an “action” – both of which are procedures by which legal matters are brought before a court. The difference may not be obvious to an ordinary person but it is an elementary one to law students let alone to a fully-fledged lawyer and judicial officer. For a judge not to know the difference is criminal. And yet this prospective candidate, who is already a judge, actually aspires to become a Supreme Court judge. You have to ask the question, how did she ever become a judge in the first place?

Asked further questions of an elementary character, she apparently promised that she would learn. Learning on the job is not a problem. Most young people starting out in their careers learn on the job. But not for an appellate judge. You do not go to the second highest court in the land to learn the difference between an application and an action. One of the critical elements of a judge is that litigants and lawyers must have confidence in you as a competent judicial officer. If they doubt your competency, you will struggle to earn their respect and confidence. Some of the judges seem to have exposed themselves in these interviews.

On this issue of competence, I am reminded of an instance where a lawyer appeared before a judge and asked for the postponement of a matter that was supposed to start on that day. The lawyer on the opposite side opposed the application and argued that the court should proceed with the matter. The judge then reserved judgment on the application for a postponement. He wasn’t a corrupt judge. He was just oblivious of the fact that by reserving judgment, he was, in effect, postponing the matter as requested by the first lawyer. Lawyers speak of this judge in hushed tones.

All this reminds me that during the constitution-making exercise one suggestion was that all judges must be made to re-apply the same way that the Kenyans took after the adoption of their new Constitution a year before us. This suggestion was resisted by some of our counterparts. The judges themselves were equally uncomfortable with this route and these interviews have exposed why. One can imagine there would have been a lot more embarrassment for most judges had they all been re-interviewed. Clearly, there seems to be a lot of mediocrity on the bench. I have heard of some judges who are notorious for inordinate delays in handing out judgments or dealing with reviews of cases from the Magistrates’ Court. But they are at the Supreme Court already. Lawyers in practice know them but they won’t say for obvious reasons.

One result of yesterday’s rigorous process will be that in future candidates will be better prepared and if they do not feel competent enough, they will not accept nomination which would only result in utter humiliation. It is a shame we won’t know which of the nominees were nominated by the President and those nominated by the public. Like I said yesterday, it would be good to be reassured that in the end public nominees get equal opportunities as much as the Presidential nominees. We can only know that if we know the Presidential nominees and judge their level of performance against that of the public nominees.

But it is worth noting that the same judge who could not explain the elementary distinction between an action and an application was herself appointed by the President. Which begs the question: how many more are there on the bench who are in her class?

The public interviews also help to expunge one notorious myth: that judges are people who are extremely clever and knowledgeable about the law. They are not. They have the power that the law confers upon them but that doesn’t make them the best exponents of the law. The fail sometimes and their decisions must therefore be critiqued and when they have gone wrong, they must be corrected. Besides, they are also human and they falter just like you and I.

I was keen on a public interview process for judges and I am pleased we have seen it in practice. It should apply to all senior public officers.

waMagaisa

Does the public have a role in Zimbabwe’s new judicial appointments process?

15 Jul

Does the public have a role in Zimbabwe’s new judicial appointments process?

Alex T. Magaisa

The simple answer to this question is that, yes, it has but the Judicial Service Commission must work to ensure that this role is actually realized in practice. This is an extract from a book that I am writing on the constitution-making process in Zimbabwe. It is relevant because there is currently an on-going process of appointing judges to the High Court and the Supreme Court of Zimbabwe – the first such appointments since the new Constitution came into force.

The appointment of judges to the courts of law is provided for in section 180 of the Constitution of Zimbabwe (hereafter “the Constitution” and all references to sections in this article will be in respect of the Constitution).

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In terms of section 180(2), when a judicial vacancy arises, the Judicial Service Commission has a mandatory duty to announce the vacancy by public advertisement and to call for nominations from the President and members of the public. This is the first time that the public is involved in the judicial nomination process. In the past, only the President had the power to nominate candidates for appointment to judicial office.

Rationale of Public’s Role

The rationale of involving the public in the judicial appointments process is based on the objective of democratising the process and more fundamentally, the need to reaffirm one of the pillars upon which the new Constitution is constructed, which is that the authority of the State is derived from the people of Zimbabwe. This applies to all the three arms of the State. In respect of the judiciary, section 162 provides that judicial authority “derives from the people of Zimbabwe”. In regard to the executive section 88 provides that “Executive authority derives from the people of Zimbabwe …” and likewise, in relation to the legislature, section 117 provides that “The legislative authority of Zimbabwe is derived from the people …”

In respect of both the executive and the legislature, the public has always had a direct role in selecting office holders through the facility of elections. Yet in respect of the judiciary, the public has never had a specific role. The process has instead been shrouded in secrecy, performed and controlled entirely by an elite sector of society with the Justice Minister and the President at the centre. People have merely heard through announcement in a newspaper that so and so has been appointed a judge of the High Court or Supreme Court. How this is done and how one is selected from among the hundreds of lawyers has been a complete mystery to most people. Yet incredibly, the authority that these judges exercise is supposed to derive from the same people who have no clue and no role whatsoever in their appointment. Such a situation did not make sense.

In some countries at certain levels of the judiciary, judicial officers are elected in fulfilment of the principle that their authority is derived from the people. In making the Zimbabwean Constitution, we did not go as far as that because the data did not suggest that people preferred an election of judicial officers. In any event, given the manner in which our brand of elections is conducted it is probably safe that such officers whose job calls for professionalism more than popularity are not subject to electioneering. But nevertheless, mechanisms were included in the appointment process to ensure that the people do have some role and input in the appointment process, which is probably a fair half-way approach to meeting the goal of democratization and maintaining professional standards on the bench. This background to this principle is important to what I have to say in this chapter regarding the appointment of judges and the role of the public in that process.

Actual Process

After calling for nominations, the JSC is required to consider and short-list them if necessary and then carry out public interviews of the prospective candidates. Thereafter, the JSC must prepare a list of three candidates as nominees per vacancy and this list is submitted to the President who will pick a candidate from that list. If the President is not satisfied with the recommended candidates on the first list he must require the JSC to submit a second list of three nominees whereupon he must appoint one of those nominees on the second list.

This sounds simple but it is important to clarify a few things in order to appreciate the thinking behind this procedure.

• First, the role of the public in the nominations and public interview process is a substantive one and not merely a window-dressing exercise to pretend that the people are involved. It must be given full effect by the JSC.

• The second point to note is that the JSC is required to submit a list of three names for each judicial vacancy. If there is one vacancy, the JSC is expected to submit three names for the vacancy. Since it is possible that the President may reject candidates on that shortlist, the JSC must hold a reserve list of 3 candidates to be submitted should that become necessary. Likewise, if there are 3 vacancies, the JSC is expected to submit 9 names split into 3 names per vacancy. There should also be a reserve list from which nominees can be drawn should the President reject any of the first sets of nominees. The important point here is that it must clear where there is more than one vacancy, who the three nominees for each vacancy are.

• Third, it is clear from the use of mandatory language in section 180(3) that the President is constitutionally obliged to appoint from the second list of nominees where he would have rejected candidates from the first list. The President cannot continue to refuse to appoint from the recommendations of the JSC.

The Moral Hazard & Protecting Public Confidence

One important question that will obviously arise from this process is whether the expansion of the system to allow the public to nominate candidates will have any effect at all, particularly because the authority that ultimately holds the power to appoint (the President) is also allowed to make nominations. This situation creates a moral hazard, which is the risk that the authority that appoints is more likely to prefer his/her own nominees for appointment. The fear will be that since the President is allowed to nominate candidates, he/she would naturally favour his/her own nominees over the nominees made by the public. If this is the case, then the whole public nomination and interview process would turn out to be nothing but an expensive charade. It is therefore important for the JSC to develop safeguards that would protect public confidence in the judicial appointment process. Such safeguards must work to reduce the effect of the moral hazard that has been identified. These safeguards would include:

• First, ensuring that the JSC is fair, impartial and gives equal opportunities to all candidates regardless of the source of their nomination.

• Second, ensuring that the process is based primarily on merit and demonstrating the merits of each candidate in terms of their performance at the interviews and their track record.

• Third, proper disclosure where other criteria has been used, for example, the use of section 184 which requires regional and gender diversity in the judiciary. If the objective particular appointments is to promote women or persons from under-represented regions, there must be transparency.

• Fourth, sufficient disclosure of all information about the candidates including their personal background, qualifications, track record. This information should be available to the public.

• Fifth, and perhaps most importantly, the disclosure of the source of nomination so that it is known which candidates were nominated by the President and those that were nominated by the public. While it might be argued that it would be improper to do so prior to the interviews, this information should however be made available afterwards. It is a public process after all and there should be no secrecy about it. This is an important indicator over time regarding the pattern of appointments between public and Presidential nominees. If the pattern of judicial appointments shows that candidates nominated by the President are invariably appointed ahead of nominees made by the public, this might be cause for concern about the fairness and transparency of the process. If on the other hand some nominees of the public are seen to also receive appointment ahead of the Presidential nominees, this will enhance public confidence in the nomination process. It is important for members of the public to know that their role in the nomination process is not merely a window-dresser designed to give a modicum of openness and transparency in the judicial appointment process when in reality it has no effect.

It is important also to note that the JSC itself as a constitutional and administrative body must protect its integrity and processes. It is required by section 191 to conduct its business in a “just, fair and transparent manner”. These safeguards, in particular the disclosure of nominations and their source are designed primarily to reduce the moral hazard and more generally to give effect to the requirements for a just, fair and transparent way of conducting the appointments process. Public confidence in the process will take a serious knock if there is poor or no disclosure of information relevant to the public nomination and interview process.

Secondly, since they have a role in the nomination process and the interviews are conducted in public, it would also be fair to ensure that members of the public have an opportunity to present information and questions that the JSC would put to the prospective candidates. The Constitution may not specifically say that the public can ask questions or present information to the candidates but for purposes of fulfilling its role as a fair, just and transparent body, the JSC can and should find ways to accommodate public input into the process. This is not simply about the public watching from the gallery but actively finding ways to involve them in the process, even if by indirect means. After all, as we have already stated, the Constitution is very clear that all judicial authority derives from the people of Zimbabwe (section 162). It would be contrary to the spirit of this clause to exclude them from the process.
Since it is an administrative body, the JSC must also know and appreciate that its processes, actions and omissions constitute administrative conduct and are therefore subject to review. This means that it has a duty under section 68 of the Constitution to ensure that its conduct is “lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”. Any failure in this regard may leave the JSC open to legal action for a review of its conduct and other legal action for the breach of a fundamental right. It is possible under section 68 (2) for a person to request reasons for the non-appointment of his or her nominee or indeed for the nominee to make such a request if he or she is aggrieved. Under this provision, these reasons must be given promptly and in writing.

Role of Parliament

The very first draft of the Copac constitution had made provision for the role of Parliament in the judicial appointments process. A committee called the Parliamentary Public Appointments Committee had been created to either approve or nominate appointees for senior public offices. The object of this was to ensure parliamentary oversight in the process and to fulfil the principle that judicial authority derives from the people by giving a role in the selection of judges to their parliamentary representatives. However, for some inexplicable reason, this critical committee was scrapped at the latter stages of the negotiating process. An alternative suggestion to give this role to the parliamentary Committee on Standing Rules and Orders was also rejected.
These shortcomings notwithstanding, it is my submission that Parliament can and should still play a role in the judicial appointments process through its portfolio committee on justice and parliamentary affairs or any other relevant committee in charge of justice affairs. As all institutions and agencies of the State are accountable to Parliament, the relevant portfolio committee should, if it considers it necessary to do so, summon the JSC to account to it in respect of its judicial appointment processes and procedures to ensure fairness, justice, impartiality and transparency and indeed that provisions like s. 184 on diversity in the judiciary are fulfilled. Parliament should therefore watch closely the on-going appointment process and require accountability from the Judicial Service Commission and the relevant Minister responsible for justice. That way lessons can be drawn from this process with a view to improving future appointment processes.

waMagaisa

wamagaisa@yahoo.co.uk

Constitutionality of the Toll-gate Fees Regulations

11 Jul

Constitutionality of the Toll-gate Fees Regulations

Alex T. Magaisa

11th July 2014

The Zimbabwe Lawyers for Human Rights (ZLHR) has launched an urgent application to court challenging the validity of the Toll Roads (Regional Trunk Road Network) (Amendment) Regulations, 2014 under SI 106/ 2014 (hereafter the “Toll-gate Fees regulations”). The primary purpose of the Toll-gate fees regulations is to increase the toll fees by 100%. Under the new regime, users of light private vehicles will now pay US$2 up from US$1. Users of haulage trucks will now pay US$10, up from US$5. These toll fees are effective from today, 11th July 2014.

ZLHR, a body of human rights lawyers has argued that the increase is unjustified. According to the press, they contend that the increase is arbitrary, oppressive and punitive in the context of the tough economic environment. They argue that no consultation was done with the motoring public before raising the fees as the law requires. They cite a breach of Section 3 of the Administrative Justice Act which requires that policies to be reasonable and fair.

The Administrative Justice Act is the legislation that provides a facility for challenging the conduct and decisions of administrative authorities. Under Section 3 of the Administrative Justice Act, an administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person is expected to act lawfully, reasonably and in a fair manner. Where the administrative authority has already acted, it is required to supply written reasons for that action either within the period specified by law or within a reasonable period after a request.

I have not read the full urgent application of the ZLHR but presumably, they have sought the reasons for these increases and they have not been supplied but meanwhile the implementation of Toll-gate fees regulations was imminent, hence the approach to the court.

As I have not yet read the application, I am not sure whether the ZLHR application alludes to the constitutional issues arising from the Ministry’s conduct. I wish therefore to make a few observations regarding the constitutional issues as I am currently in the process of writing a book on the reasoning behind the clauses of the Constitution using the experience earned from my vantage position during the constitution-making exercise. I recall arguing strongly for the inclusion of the right to administrative justice and submitting a research paper on administrative justice to justify it.

Section 68 (1) of the Constitution make provides for the right to administrative justice. It states that every person has a right to administrative conduct that is “lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”. Subsection (2) provides that any person whose “right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct” is entitled to be given promptly and in writing the reasons for such conduct.

The purpose of these clauses is to ensure that administrative conduct meets these standards. Subsection (1) sets the highest standards expected of any administrative conduct and subsection (2) sets out the requirement for prompt written reasons for any decision that adversely affects the rights, interests or legitimate expectations of any person. Looking at the case, clearly the action of setting Toll-gate fees constitutes administrative conduct. The question therefore is this conduct meets subsection (1) standards of lawfulness, reasonableness and fairness – both in the procedure and its substance. There was some controversy whether fairness should simply be about procedure (procedural fairness) but we argued that it should also include substantive fairness – that is, in addition to the process in arriving at a decision, the decision itself must be fair.

Therefore, ZLHR or anyone in this matter would be well within their rights to raise the constitutional argument regarding a breach of section 65, if they have not already done so. Section 65 provides for the enactment of legislation to give effect to the rights under section 65 and in particular to provide for a review of administrative conduct by judicial authorities. This is why the Administrative Justice Act exists – although it now needs to be realigned to meet the new and higher standards set out in section 65. This is also why the ZLHR have pursued the urgent application for review of the Ministry’s actions because the Administrative Justice Act permits persons to approach the High Court for a review of administrative conduct. Nothing will however, stop them from raising the constitutional argument before the High Court.

In terms of section 171(1) (c.), the High Court has jurisdiction to decide on constitutional matters except matters that are the exclusive preserve of the Constitutional Court. Section 175 (2) on powers of courts in constitutional matters allows a court to grant a temporary interdict or other relief to a party pending a decision of the Constitutional Court on the constitutional validity of that law. For purposes of finality, the constitutional matter may of course be referred to the Constitutional Court so that it makes a final pronouncement on its validity.

Parliament’s Role

I should also point out that Parliament has a role in this matter which it has a responsibility to use. Section 134 on subsidiary legislation makes it clear that while Parliament has the power to delegate its powers to make subsidiary legislation, such subsidiary legislation must not infringe or limit the fundamental rights and freedoms set out in the Declaration of Rights. Section 65 on the right to administrative justice which we have discussed above is one of those rights in the Declaration of Rights and Parliament has the power to assess and pronounce whether the Ministry’s conduct and SI has breached this right. Section 134(f) also provides that statutory instruments must be presented before the National Assembly for approval and must be submitted to the Parliamentary Legal Committee (PLC) for examination.

The PLC is a committee of Parliament made up largely of parliamentarians with a legal background and its mandate is to examine all Bills and statutory instruments to determine their compliance with the Constitution and/or the enabling primary legislation. We do not know whether the PLC has examined the Toll-gate fees regulations and if so, what its recommendations were. However, if it has not yet done so, then it is important that the PLC perform its mandatory obligation set out in section 152(3)(c.) of the Constitution, that is, to examine the statutory instrument and to report to Parliament and the relevant Minister on its constitutional validity.

The only way to make the Constitution work is for citizens to make use of it and take an active part in its enforcement.

waMagaisa

wamagaisa@yahoo.co.uk

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Dual Citizenship Endorsed by Zimbabwe’s Highest Court

26 Jun

Dual Citizenship: A Tiny Story

Some musings on the morning after the Constitutional Court endorsed the validity of dual citizenship in the Constitution.

The issue of dual citizenship was one of the most contentious during the constitution-making process. The discussions went on forever. It was “parked” and “unparked” several times. Drafted and re-drafted many times. Eventually everyone saw sense. There was agreement that persons who are citizens by birth are entitled to have dual citizenship.

The manner in which the relevant clause is written is awkward but this owes to its messy and politically-charged negotiating history. There were those who stridently opposed it and when they eventually agreed they did not want it to be written as explicitly as was the case in the Constitution of Kenya. It would have appeared like an embarrassing climbdown and political parties, as a general rule, don’t like to be seen like they have climbed down.

But the fact was that it was agreed and the net effect of the Constitution was that Parliament could not affect citizenship of citizens by birth on grounds that they hold another citizenship. It was a victory for common sense; a victory for the Diaspora and a victory for Zimbabwe as a nation. But even after the referendum and approval of the Constitution, some people still insisted that there was no dual citizenship even when the supreme law of the land was clear. They did not want to admit the reality. It was frustrating arguing with these folks but we knew there would be no other way. So we thank the Court for confirming what was already plain and obvious.

The battles in the negotiating rooms were intense, I tell you. I had written severally on this issue before. As someone coming from the Diaspora, there was a feeling among opponents of dual citizenship that anaMagaisa were representing self-interest! We had lots of banter over that – all good-natured I must add. They did not realise that even though I could have, I had not taken citizenship of another country. I was merely arguing in support of it not for personal reasons but because I thought that was the right thing for Zimbabwe and for my many comrades in the Diaspora whom I knew to be inextricably attached to their homeland and wanted dual citizenship to be recognised.

There were many points and there are quite a number of aspects of the Constitution of which I am not proud but I will always remember this as one of the higher moments of the constitution-making process. This is why I am recording my experiences in the form of a book so that present and future generations can appreciate how the clauses were negotiated and the thinking behind the wording of these clauses. I hope students of constitutional history and law would find some use in its contents. But it is not beyond the ordinary reader.

I also want to pay tribute to some of my comrades who silently but valiantly organised and pushed for the realisation of dual citizenship in the Constitution. Back in 2009, a group of friends in the UK came together to create a platform which would advocate for diaspora and development issues. I have not seen a more dedicated group of people. Many of them have become firm friends. Here I mention those who immediately come to memory at the time of writing this post: Msekiwa Makwanya, Yvonne Kuimba, Livingston Musoro, Chofamba Sithole, Natalie Jabangwe, Samuel Chindaro, Bheki Chatira, Gardner Mugashu, Catherine Madziva, Loreen Makwanya, Blessing Dumbura, Francis Dumbura, Ennie Mhende, Kenny Mupomba.

Forgive the ageing memory because I am sure I have missed out some names – my fresher-minded cdes here can add to the list. It’s not often that you get recognition for your efforts. That mini-diaspora conference that you held produced a position paper that was immensely helpful in the negotiating process. And for those long trips to London Met, when it seemed lonely and meaningless – you deserve a pat on the back. It was not in vain after all! 

ZEC & JSC: An Avoidable Conflict of Interest

25 Jun

ZEC & JSC: An Avoidable Conflict of Interest

A story in today’s Newsday raises an issue about the problem with our electoral landscape but more generally about the manner in which we have treated and compromised the institutional framework of the State.
The story tells us that Justice Rita Makarau is the acting Secretary of the Judicial Services Commission. But Justice Makarau is also the current Chairperson of the Zimbabwe Electoral Commission, the body that administers and supervises the electoral system in Zimbabwe. The Judicial Services Commission is a constitutional body that deals with matters affecting the judiciary. Part of its constitutional functions in terms of section 190 of the new Constitution is to advise government on matters relating to the judiciary or the administration of justice and to promote and facilitate the independence and accountability of the judiciary.

In order to run its affairs, the JSC has an administrative arm. This administrative arm is headed by a Secretary. It is this position that Justice Makarau held while she was a judge of the Supreme Court, before she was appointed to be the Chairperson of ZEC. And now we learn that she is still the acting Secretary of the JSC. I have nothing against Justice Makarau – she is my former teacher and I like to think we have a sensible, respectful and professional relationship – but with respect, this situation in which she is both Chair of ZEC and acting Secretary of the JSC cannot be right on many levels.

Principally, as a body that deals in highly contentious terrain, ZEC is highly exposed to litigation before the courts. It is true in fact that even at this moment, there are various electoral matters that are pending before the courts. Such cases might require judges to make pronouncements about her position and conduct as Chairperson of ZEC. And yet the Chairperson of ZEC is also the same person who as Secretary of the JSC handles the administrative aspects the judiciary – which include dealing with conditions of service for judges. In this particular case reported by Newsday, the new judges are demanding farms from the State as part of their conditions of service and Justice Makarau, as acting Secretary of the JSC is handling the matter on their behalf. They will get the farms, thanks to the facilitation of the acting Secretary of the JSC who is also the Chairperson of the country’s principal elections body.

This is not to say that these things have actually influenced the judges or will influence them in the way they handle matters involving ZEC. It is not even to say that Justice Makarau is incapable of doing her job, no. She is an honourable lady. But perception matters in these matters. The mere fact that her holding these two positions raises a potential of doubt; the possibility of a perception that individuals may become corrupted by such situations is damaging to both the judiciary and ZEC as institutions of the State that are supposed to be independent but also it does not do good to the reputation and standing of the individuals concerned. The whole point of creating the JSC was to ensure there is administrative independence for the judiciary. This is compromised if a person from another body comes in to preside over its administration. That is why a serving judge is appointed at the Secretary of the JSC.

With so many judges on the bench, why can’t the JSC select a new person to take over as their Secretary? Why should they place Justice Makarau in this invidious position which compromises the dignity of her office as ZEC chairperson and creates negative perceptions about the judiciary when it handles matters affecting ZEC? Practising lawyers will find it hard to raise these issues with the judiciary for fear of being accused of maligning or disrespecting the judiciary but there must be serious doubts among them and this situation cannot give them comfort.

On her part, Justice Makarau needs to look at it carefully and choose where she really wants to be: with ZEC as its Chairperson or with the Judiciary as Secretary of the JSC. It is not right that both posts should be held by one person. It creates potential for conflicts that can easily be avoided.

We know that the appointment of a serving judge to ZEC does not mean one has to resign as a judge but there is a good reason why one cannot perform his/her functions as a judge while he/she is chairing ZEC. It is to avoid these compromises. If, therefore, one cannot perform their judicial functions while they are chairing ZEC, it must follow, on the same rationale, that they cannot be Secretary of the body that administers the judiciary. They might as well sit in judgment of their own cause. If Justice Makarau cannot sit as a judge while she is ZEC Chairperson, surely she can’t be running it as acting Secretary of its administrative arm.

It is possible that poor remuneration and conditions of service of commissioners at ZEC has resulted in this situation where its Chairperson now has to moonlight as an officer of another commissioner. This is not fair on her and her office and indeed on the other commissioners at ZEC and other commissioners. If this is the case, which is quite likely, then the State must work to address the conditions of service of all commissioners otherwise there is no point thinking that they are independent when their impecunious circumstances forces them to take up other shifts elsewhere. What else could they be doing that we do not know – just to make ends meet?

Alex T. Magaisa
waMagaisa@yahoo.co.uk

Chinamasa’s Statements Signal Another Electoral Charade

15 Oct
Chinamasa’s Statements Signal Another Electoral CharadeAlex T. Magaisa

Zimbabwe’s Justice Minister, Patrick Chinamasa last week declared in an interview with the BBC’s Andrew Harding that MDC-T leader and current Prime Minister Morgan Tsvangirai is “asking for trouble” if he wins the Presidential election scheduled for next year.

When asked whether ZANU PF was prepared to accept a Tsvangirai victory Chinamasa responded: “He [Tsvangirai] cannot win”. And later, he is quoted as saying that “I know he [Tsvangirai] is the front of (sic) the countries that impose sanctions. And if those countries impose for him to win, that result will not be acceptable. We will not accept it. We will just not accept it. Isn’t that clear?”

This comes at a time when President Mugabe is declaring that the country is ready to hold free and fair elections and that those who do not want to contest will not be forced to do so. The statements attributed to Chinamasa are certainly out of sync with this message but confirm what has long been feared about elections in Zimbabwe: that in ZANU PF’s world-view, the only election that is acceptable is an election that delivers a positive result for itself. Anything else would be unacceptable.

Chinamasa is the Minister responsible for Justice, Legal and Parliamentary affairs in Zimbabwe and that portfolio gives him the role of administering the Electoral Act, among other laws that deal with elections. As Justice Minister he will have a role in the next electoral processes, including the accreditation of election observers. Yet already, long before the election dates have been declared, Chinamasa is not only defining the goalposts, but declaring that one of the prospective contestants cannot score or let alone win the contest.

What Chinamasa has said is, of course nothing new. In the past, military commanders have issued statements to the same effect, indicating clear hostility to the man and his leadership aspirations. There is a long list of such threats of subverting the people’s will and Chinamasa’s is just the latest in the catalogue. On this occasion, Chinamasa also invoked the threat of ZANU PF’s military might:

“And this is where the military comes in …” he said suggesting that the military step in to prevent a Morgan Tsvangirai victory and subvert the will of the people and therefore, the Constitution.

So in Chinamasa’s opinion, the people of Zimbabwe are so immature that they are unable to make their own political decisions and instead they have to rely on the wisdom of ZANU PF and its allies in the military. Should they vote for Tsvangirai, that decision will be deemed incorrect and will be subverted by ZANU PF, the military and war veterans.

This then begs the question regarding the hullaballoo over the elections; of why ZANU PF is so intent on having an election whose result is already pre-determined. Why are they so keen on going ahead with an election when they are not prepared to accept the results of that contest, should the result not be in their favour? Why not simply come out in the open and declare that Tsvangirai and the MDC-T are prohibited from contesting the election? Why go through the charade of an election when an unfavourable result will not be accepted?

The fact is these are the types of reckless stunts that do Zimbabwe no favours at all. Even those who may have been prepared to take ZANU PF more seriously in recent years surely have to despair when a senior official utters such remarks which essentially rubbish the entire election process which they would otherwise wish to present as credible and legitimate to the rest of the world.

Such statements also debunk the myth that ZANU PF banks on its policies to win elections; the one that has gained currency in recent years that in indigenisation and land reform ZANU PF has cogent policies as points around which to rally support to beat rivals in an election. Chinamasa’s statements and threats suggest that the party does not have confidence in a policy-based approach and instead can and will only rely on the power that it draws from the security structures.

In this regard, Chinamasa’s statements only serve to confirm what has long been known: that ZANU PF’s main source of power lies in the national security structure.  The other traditional structures of power, namely finance, production and knowledge play their part but none more so than the security structure.

However, coming as they have done well in advance of the elections, by the law of unintended consequences, Chinamasa’s statements are in a strange sort of way quite welcome. They are welcome because they demonstrate the reality of attitudes and positions on the Zimbabwean political landscape: that nothing has changed to make the next election free and fair. People who have doubted the sincerity of the tolerance and peaceful tune that President Mugabe has been singing in recent months will feel vindicated by Chinamasa’s declarations.

President Mugabe’s backers might say Chinamasa was not representing the President or his party position or indeed the military. Well, if that is the case, the one way to prove it would be correct the representations that have been given so publicly on the world stage by Chinamasa or to publicly censure him for his remarks. After all, they represent a threat to disregard and disrespect the Constitution which is the supreme law of the land. As Justice Minister, a lawyer and member of the Law Society of Zimbabwe, Chinamasa knows that only too well and both his oaths as a minister and as a lawyer oblige him to respect and uphold the laws of the land.

Chinamasa says Tsvangirai and the MDC-T seek to reverse the land reform programme, which is a gross misrepresentation. As one of ZANU PF’s negotiators in the constitutional reform process, he knows that the agreed clauses on agricultural land do not such thing. This is why even in ZANU PF’s own set of amendments, the Copac draft’s clauses on agricultural land have not been seriously amended, reflecting the accommodation that has been reached between the parties. The reason for continuously raising the spectre of the MDC-T reversing the land reform programme is simply to perpetuate a tired line that the MDC-T is anti-land reform.

Coincidentally, ZANU PF removed all provisions in Chapter 16 of the Copac draft Constitution relating to the establishment of the Land Commission whose main functions include carrying out a land audit and ensuring adherence to the “one person-one farm” principle. The effect of this would be to ensure transparency and prevent multiple farm ownership. Only those who are multiple farm owners can be afraid of the existence of a body like the Land Commission.  Far from reversing the land reform process, the agreed aim is to regularise the process, to ensure security of tenure and to set out a basis for productive agriculture.

More importantly, however, the statements are welcome in that they remind SADC as the facilitator and guarantor of the GPA, the AU as the other guarantor, the United Nations and the rest of the world regarding the challenge that continues to encumber Zimbabwe. Far from signalling any confidence in the prospect of a free and fair election, Chinamasa’s statements signal a repeat of the 2008 charade. For a man of his stature, the statements were remarkable for their reckless and plain disregard for the law and the will of the people.

As the old saying goes, however long it stays in the river, a log will never transform into a crocodile.

Note: Chinamasa lost to the MDC-T’s John Nyamande in the 2008 parliamentary elections. He was later appointed to Parliament by President Mugabe as a Senator.

ATM

wamagaisa@yahoo.co.uk

Editors: If you are going to use this article, kindly acknowledge that it was first published on this blog.

Talking Baboons, Presidential Insults and More Presidential Candidates – A week in Zimbabwean Politics

12 Oct

Talking Baboons, Presidential Insults and More Presidential Candidates – A week in Zimbabwean Politics

Alex T Magaisa

Being a Friday, we take a lighter look at events on the Zimbabwean political landscape …

A “Delegation of Baboons”

The week started with a fascinating story carried by the state weekly, The Sunday Mail of a meeting between a spirit medium, who bears the name Sekuru Katombo Kanyai and a “delegation of baboons”. The brave medium also had a meeting with a pride of lions, we are told. Weeks before, the same Sekuru Katombo Kanyai had been “visited” by a pangolin. And then a Fish Eagle, apparently a mysterious bird, had landed at Sekuru Katombo Kanyai’s homestead. And Sekuru Katombo Kanyai had also talked to a snake.

Clearly, Sekuru Katombo Kanyai is highly favoured and must be a man of great powers – his ability to talk to these wild creatures is unparalleled. The last time we heard animals talking was in fairy tales or in Hollywood movies. But no; right there in Zimbabwe is a man who even managed to have a “tete-a-tete” with a delegation of baboons, according to The Sunday Mail (The last time we checked the dictionary a “tete-a-tete” was a private conversation between two persons – clearly the Sunday Mail has a different definition).

Mbuya Nehanda, the revered spirit medium credited with inspiring the rebellion against the settlers in the 1890s and later sentenced to death and an enduring symbol of resistance and nationalism, was also brought into the frame – Sekuru Katombo Kanyepi’s homestead is her former home, we were told.

But if you were wondering what the alleged “tete-a-tete” between Sekuru Katombo Kanyai and a “delegation of baboons” and his meetings with lions or conversations with a snake or indeed the supposedly rare landing of the Fish Eagle was leading to, these are apparently messages “from the heavens”. You only need to read the last paragraph of Mr Mwase’s story to get the point of all this. Chief Chiweshe is quoted as having declared: “I will be approaching the relevant authori­ties to deliver this message . . . tikasangwara, nyika inoyenda. (If we are not careful, we will lose this country.)”, reports The Sunday Mail. (“We fought the war and attained independence, but there is a danger that the enemy will reverse the gains we made, so it’s for the good of every Zimbabwean to take heed of what the ancestors are saying.”)

So there we have it – the ancestors have sent a message through the “delegation” of baboons, a snake, a pride of lions, a pangolin and a fish eagle. It’s bad journalism, as one colleague put it, that the reporter failed to get a statement from the baboons. We agree. And we look forward to a follow up story, just in case the reported has been able to get a statement from the baboons.

Diesel from Rocks

But the story reminded us of Rotina Mavhunga, the spirit medium of Chinhoyi who claimed to have discovered diesel from rocks. We had a delegation, not of baboons, but of ministers – many of them quite learned, grinning from ear to ear, having removed their shoes as a sign of respect in the presence of the spirits, sitting there seemingly in awe of Rotina Mavhnga’s powers.

But those were desperate times and we might understand the desperation that drove grown men to such levels of gullibility. The country was facing severe fuel shortages. It was tough and, however stupid, news of miraculous diesel from rocks must have been refreshing, let alone welcome. Were these not the spirits of the land conspiring to defend the country against the machinations of the West? Were they not only showing a crucial lifeline but had decided in their wisdom to actually process the crude oil into diesel? It was all nonsense, of course. When the façade fell, as it was destined to, there was much embarrassment – enough to get Mbuya Rotina Mavhunga into jail but not enough to get the gullible ministers relieved of their duties.

We understand Chief Chiweshe will be delivering the message to the “relevant authorities”. We wish him well. Now we don’t know if Sekuru Katombo Kanyepi will arrange for a delegation of ministers to have a “tete-a-tete” with the “delegation of baboons” let alone with a pride of lions and a snake. If they do, we hope they take a video camera for that rare spectacle. We might well have a rare species of baboons, snakes and lions in our backyard that could draw millions of tourists …

Presidential Insults …

As the week rolled on, we heard news of Energy Minister Elton Mangoma being arrested for insulting President Mugabe. Section 33 of the Criminal Law (Codification) Act states that it is an offence to insult or undermine the authority of the President. According to the Zimbabwe Lawyers for Human Rights, which has represented victims of this provision, there have been up to 45 such cases in recent years. We are told the allegation is that Mangoma said at a meeting in Bindura, “Chifa Mugabe Chifa; Chibva Mugabe Chibva!” (Die Mugabe Die; Go Mugabe Go!”

We also read that Swiss tourist, Thomas Fischer was convicted by a court in September when he made reference to President Mugabe in an argument with border officials in Kariba. Apparently, following a delay at the border, Fischer had said Mugabe “knew how to screw people, especially foreigners.” He was arrested, convicted and fined $200.

We also recall that a Mutare fellow was arrested during Mugabe’s birthday celebrations in February when during a bar argument he is alleged to have questioned whether Mugabe still had the strength to blow up all balloons at his 88th birthday. Mugabe turned 88 in February and balloons had been blown as part of the celebrations.

We also read recently that Jeritha Nkomo, a 36-year-old Nyamandhlovu woman was arrested for insulting a local ZANU PF official using President Robert Mugabe’s name. Apparently, Ms Nkomo is alleged to shouted at the ZANU PF gentleman insulting him in the local Ndebele language and in doing so, made reference to his party leader Mugabe. The ZANU PF official went straight to the police to report the offence – saying it was an insult against the President.

We also remember that sometime in 2011, the MDC-T spokesperson, Douglas Mwonzora was charged with insulting the President. He was already in police custody at the time and while at the magistrates courts for a remand hearing Mr Mwonzora was alleged to have looked at a portrait of President Mugabe (every public building must have a portrait of the President)  and addressed it saying “Makadii Baba? Irisei muviri?  Riri sei ziso?” (“How are you father? How is your health and how is your eye?”]  At the time the media was awash with stories of President Mugabe being unwell and having travelled to the Far East for an eye operation.  Mwonzora said that he was in fact asking after the health of a fellow elderly prisoner whose health was failing and had also lost his spectacles during an incident of political violence.

So Mangoma joins a growing list of alleged offenders. Now, before we get ahead of ourselves, Zimbabwe is not the only country with such odious laws and in due course we shall favour you with a complete list of countries that are similarly minded, even though they do not enforce them with same levels of keenness and vigour. But the common denominator in all such countries is that the charges of insulting or undermining the President usually rise exponentially towards or during election times, especially where the President is also a candidate in those elections – which in fact makes this law a key part of the electoral landscape.

The question that one has to grapple with is how to separate the person in his capacity as President and in his other capacity as a party leader and election contestant. Certainly he has the freedom to insult, denigrate and verbally assault his fellow candidates but as soon as the others try to do the same, they could well find themselves facing arrest for insulting the President! And they say the electoral ground is even and level … Our observation is that numerous arrests, which always receive negative coverage across the world and are therefore embarrassing, have actually done more to ridicule, insult and undermine the authority of the office of the President.  They feed more into the stereotype of a repressive dictatorial regime that prohibits criticism. So could it well be that those instigating these arrests actually have a bone to chew with the President?

And oh, yes we forgot to mention that Mr Mangoma belongs to the MDC-T led by Prime Minister Morgan Tsvangirai – Mugabe’s main challenger in the Presidential election.

Baard throws his hat into the Ring

And speaking of Presidential elections, the week is ending on a resoundingly hilarious note. Moses Matenga, at NewsDay reports that a man called Mark Baard has thrown his hat into the ring that is the Presidential election in 2013.

The 53-year old Baard has told Matenga that he is responding to a “prophecy”. His party is called the Zimbabwe Republican Front. “We are going full swing …” he is quoted as having stated. “It’s a vision God has given me. God calls it a revival” he adds, stating that the earthly messenger of this prophecy is Cindy Jacobs, who is based in America. We suspect the retort to that one will be very easy – “Zimbabwe will never be a colony again”. Not even a heavenly disguise will work! Mr Baard might be best advised to recruit an “indigenous” prophet to “indigenise” the prophecy.

“God has prepared me for this” says Mr Baard. He better be, because a Zimbabwean election is no child’s play; one will need all the divine protection one can get.

“The party has been in action …”, Mr Baard adds, although, we have to say, this is the first time we are hearing of the Zimbabwe Republican Front. Readers may wish to favour us with details of any “action” of the ZRF they have witnessed in recent years.

Zimbabwe has its fair share of a mixed variety candidates in Presidential elections – as do most countries. They come, to use a tired cliché, in all shapes and sizes – and indeed backgrounds. We do not forget Mr Langton Towungana who stepped onto the starting line in the 2008 elections. According the NewsDay, there were 14 503 Zimbabweans who shared his vision. But our favourite remains Egypt Dzinemunhenzva – the Wedza-based gentleman who runs a grinding mill at the township. He spares no election. He loses every time but he always comes back for the next. Ngaapihwe sando dzake, as they say in Zimbabwe.

So what a week it has been – starting with a spirit medium receiving a message from the heavens through a delegation of baboons, a fish eagle, a snake, a pride of lions and a pangolin, to a man receiving a divine prophecy to lead, through an American based prophet. And in between, a cabinet minister arrested and later released on charges of insulting President Mugabe. There is never a dull moment on the Zimbabwean political landscape …

wamagaisa (2012)

waMagaisa@yahoo.co.uk

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