Election season is upon us once again. The last election year, 2008, will forever be etched in the memory of many as the most troubled year in Zimbabwe since independence from colonial rule was achieved in 1980. The election conducted in 2008 was bloody and violent, compounded of course by hyperinflation and the crippled state of the economy. Today, food shortages are a thing of the past. Hyperinflation is no longer an issue thanks to dollarization. The Government of National Unity has been fraught with problems, but compared to the days when bread was a luxury, the situation has somewhat normalised. Most Zimbabweans would like to get on with their lives, put food on their tables, educate their children and ignore the politics. But this is becoming increasingly difficult to do. The events of the last couple of weeks are enough to remind one that all is not well. The rule of law is under renewed threat. In particular, the independence of the judiciary has been severely compromised and a clear message is being communicated to judges to tow the correct political line.
At its core, the independence of the judiciary dictates that judges should not be subject to improper influence from the other branches of government, particularly the executive. This is a basic requirement of the separation of powers doctrine which is central to the rule of law. Unless judges are allowed to perform their duties without fear or favour, the public will lose the confidence of the legal system. In turn, the internationally recognized right to protection of the law will be unduly compromised. It is against this background that the current onslaught against Justice Charles Hungwe, a judge of the High Court of Zimbabwe, should be understood.
It has been reported widely in the State media that Justice Hungwe has committed acts of misconduct. What it is immediately clear to any person who has a basic understanding of the law in Zimbabwe is that the allegations being mounted by Justice Hungwe’s self-proclaimed prosecutors are frivolous and vexatious.
The main charge that Justice Hungwe faces according to media reports is that he convened a heard an urgent chamber application brought on behalf of a legal practitioner, Beatrice Mtetwa, to seek her immediate release. It was argued on her behalf that she had been detained while conducting her lawful duties on behalf of the Office of the Prime Minister whose officials were being subjected to what she contended was an unlawful search. Section 17 of the current Constitution of Zimbabwe protects citizens from arbitrary search and entry. Quite rightly, therefore, Ms Mtetwa demanded a search warrant. She was immediately arrested and charged with “obstructing the course of justice.” These facts show that the continued detention of Ms Mtetwa was unjustified. Rule 244 of the High Court Rules of Zimbabwe permits litigants to bring a matter on an urgent basis.
It is established under our law that degrees of urgency may vary. At the outer edge of the spectrum are matters which require such urgent determination that they can be heard outside ordinary court hours and in locations other than the High Court, depending upon the exigency of the circumstances. It is on this basis that the urgent chamber application was heard by Justice Hungwe late on the night Ms Mtetwa was arrested. In addition, section 23 of the Constitution enshrines the right to personal liberty – a right that cannot be lightly interfered with without good cause. Upon hearing the submissions of counsel, Justice Hungwe was persuaded that the continued detention of Ms Mtweta was unjustified and ordered her release. The matter was indeed heard ex parte, without notice to the State or police officers. Again, this measure is permissible under our law. Rule 242(1)(c) authorizes a judge to hear an urgent application ex parte if it can be shown that there is a risk of perverse conduct on the part of the persons who might otherwise be entitled to be served with the application. Such a risk was demonstrably evident in Ms Mtetwa’s case where the police had unlawfully detained her. There was a real risk and possibility that the police would delay the hearing of the application or otherwise frustrate efforts for her to be released. This risk was proven to be real when the police refused to comply with the court order upon being served with it, insisting instead that she be hauled before a criminal court.
The above summary of the law shows that Justice Hungwe’s discretion was properly exercised. However, to the extent that the State or representative of the Attorney-General’s Office was aggrieved by the decision, it was open to them to appeal against it on an urgent basis or anticipate the return date. The allegation that the judge might have misdirected himself is an opinion anyone is entitled to hold. However, a misdirection by a judge cannot ipso facto amount to misconduct. If the approach that is being advocated in persecution of Justice Hungwe were to be followed to its logical conclusion, every High Court matter in respect of which an appeal succeeded in the Supreme Court would be a proper case for misconduct. The result would be absurd.
The same arguments apply to the allegation that the judge issued a search warrant which various elements of the Executive were not happy with. Of course, such elements were entitled to be aggrieved. They have under the Constitution a right to protection of the law which means that they can enforce whatever right they perceived to have been infringed. But they must do so procedurally: they can seek the review of the judge’s decision or appeal against it. An apparently baseless accusation has been made against the same judge, contending that he ‘improperly granted a Notice of Withdrawal’ in a property dispute. The allegation is without merit because it is not for a judge to withdraw a Notice of Withdrawal under the High Court Rules. A Notice of Withdrawal is a pleading. Pleadings can only be filed by litigants or their legal practitioners. Once a matter is withdrawn by a party, the judge is no longer seized with the matter. There is nothing for him to grant. Unless this is a case of bad reporting and a misapprehension of the legal issues involved, it is beyond doubt that this allegation is malicious.
The final word on this matter has to be that judges, being human, do make mistakes. Lawyers and litigants do not always agree on the correctness or propriety a particular legal outcome. However, if our response to perceived misdirections is to harass, defame and otherwise abuse judicial officers, judges will not have the mettle necessary for them to decide matters properly and fairly. It is equally undesirable for judges to be punished for deciding against the political establishment. To do so makes a mockery of the entire judicial system which Zimbabweans are required to have confidence in. It also places judicial officers at the mercy of the politics of the day and undermines the rule of law and general principles of consitutionalism. The latest media reports seem to indicate that Justice Hungwe will be hauled before a tribunal appointed by the President to investigate his “misbehaviour” in accordance with section 87 of the Constitution. If found guilty, the judge will be forced to resign. This will be a severe assault on the independence of the bench and a warning to legal practitioners and litigants that the judicial system has been compromised.
If the rule of law is to remain somewhat intact in this country, this course should be avoided at all costs. Accountability to the rule of law, in its most basic form aims at structuring and placing certain limits on governmental action. Time-tested constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently. We cannot afford to sacrifice these most fundamental values at the altar of political expediency.