Since the advent of black majority rule, elections in Zimbabwe have been highly contested, allegations of rigging have been raised by opposition parties and civil society movements, which have raised questions about the integrity of the institutions. This paper questions judicial independence in the context of Zimbabwean politics. I shall give reference to the climate in which the 2023 general elections were conducted and respond to the extent of judicial capture and what has become of the doctrine of the rule of law and separation of powers as envisioned in the Constitution of the Republic of Zimbabwe.
For 43 years now, ZANU PF has managed to maintain its grip on power, with one man Robert Mugabe being president for the first 37 years, before he was overthrown by the army in cahoots with his then Vice President Emmerson Mnangagwa. Mnangagwa, after grabbing power from his predecessor, went on to emerge as president after the 2018 elections. An election characterized by allegations of rigging, which led to a constitutional court challenge that is integral in discussing the major theme of this paper -judicial independence. The 2018 court challenge that Mnangagwa won is important in this discussion as it shows how courts have been used to legitimize a ruler who would otherwise be illegitimate in the Courts of Public Opinion. More recent court battles seem to have exposed that the judiciary in Zimbabwe is compromised. There is a lot of political interference from the ruling party ZANU PF.
Courts in Zimbabwe have been compromised by selective prosecution of legal officers and activists informed by political interest. If you are from ZANU PF, you are above the law. During the campaign season in Zimbabwe, an Opposition supporter was killed in cold blood by known ZANU-PF supporters during a campaign trail in Glenview. Till now, these perpetrators have not been brought to book. During by-elections earlier this year, one Mboneni Ncube was killed, again in cold blood by known ZANU pf people, the perpetrators have still not been brought to book. MoreBlessing Ali, a female Opposition activist, was abducted, killed and her body parts found in a well in a well in a farming community of Beatrice, the perpetrators are still roaming free. Just after the disputed election, which was opposed by both the main opposition and international bodies such as SADC, opposition Member of Parliament for Sunningdale was arrested for malicious damage to property, charges that were dropped the following day by the magistrate’s court. A day after, the CCC Deputy Spokesperson got arrested, and on 24 September was remanded to prison for allegedly removing posters during campaigning of a double candidate who claimed to be from their party. We can spend the whole day citing scenarios where rule by law was forced on opposition members, leading to trial that are allegedly politically motivated.
Judges and lawyers have face intimidation from the state for siding with the oppressed people which happen to be critical of the state. 3 good examples of suppression of dissent within the legal system include the firing of Justice Erica Ndewere who gave a political prisoner and lawyer Job Sikhala bail against the instruction from the “top.” Top lawyer, and opposition Member of Parliament, Job Sikhala was also arrested for speaking out on behalf of his client More Blessing. He has in prison for over 500 days now. Recently, Douglas Coltart was put in police custody for representing his client who happened to be an opposition political activist. Obey Shava, a lawyer for the Citizens Coalition for Change, was brutally assaulted and left for a wheelchair by alleged political opponents.
That judges have always been under the control of the ZANU PF government is also evident in the dismissal of election challenges and decisions that seem to favor the ruling party have also put judicial independence under scrutiny. On the 2018 disputed election, the Constitutional Court dismissed the evidence put before it by the Opposition that there were malpractices by the Zimbabwe Electoral Commission to the benefit of the incumbency. The court decided rather to ignore the evidence that was put before it to talk about the evidence that had not been brought before it. This did nothing but raised suspicions that the Court is just siding with the ruling ZANU-PF.
“Integreedy” has taken precedence over integrity in so far as the conduct of members of the judiciary is concerned. The judiciary is compromised. In May 2023, all judges received $400 000 USD worth of housing loans from Emmerson Mnangagwa’s government. Given the pre-election political climate in which ZANU PF was in panicky mode, it did not need a political scientist to smell defeat of the incumbent, and another disputed election that would be challenged in courts. Given this perspective, the only thing expected of Mnangagwa was to buy the officers of the courts so that they would scratch his back come the expected court challenge, which however did not come to be, most probably because of these allegations of judicial capture, and the belief that follows that raising a court challenge would sanitise a stolen election and give legitimacy to cunning ED.
ZANU PF has mastered the art of using the judiciary to fight political battles. Judicial independence is a key tenet of one of the most important provisions of the Constitution of Zimbabwe, which is the Doctrine of the Separation of Powers. Judicial Independence is compromised when the state exercises undue influence on the Courts, making it difficult for judges to be impartial in administering justice. Judicial capture happens in various ways which include, and are not limited to, appointment of judges that sympathise with the ruling party, paying incentive and bribes, interfering with judicial decisions, jailing, by judges, dissenting voices within the legal and political system.
