Court orders defied

Defying court orders undermines rule of law

The Financial Gazette - Cyril Zenda

8 Oct 2015

Saviour Kasukuwere

LEGAL experts this week unanimously condemned a growing tendency by officials to defy court orders with no consequences to them, saying this development undermines rule of law in Zimbabwe.

So deep-seated is the habit that this week the Ministry of Local Government Public Works and National Housing had to call for a press conference to announce that government was not going to abide by Bulawayo High Court judge, Justice Nokuthula Moyo’s judgment ordering it to immediately reinstate suspended Gweru mayor, Hamutendi Kombayi, and 10 other councillors — all members of the opposition Movement for Democratic Change (MDC-T) party — who were suspended from office outside the law.

Saviour Kasukuwere, who is also ZANU-PF party’s secretary for the commissariat, heads the ministry.

Justice Moyo’s ruling was based on the legal fact that the section of the Urban Councils Act, which was used to suspend the Gweru city fathers, violated the Constitution of the country.

She pointed out that Section 114 of the Urban Councils Act, which Kasukuwere evoked to suspend the councillors and to appoint a tribunal to investigate the affairs of the city, was inconsistent with section 278 of the Constitution.

However, the permanent secretary of the ministry, George Mlilo, was adamant that Kombayi and his councillors would remain suspended.

“The proceedings of the tribunal should be stayed pending the outcome of the final order by the court. The councillors, Kombayi and all the suspended remain on suspension. The caretaker council put in place by (the) Honourable Minister (Kasukuwere) remains operative in the absence of (the) councillors,” a defiant Mlilo announced to the media this week.

Legal minds that spoke to the Financial Gazette said Mlilo’s announcement only serves to confirm that the rule of law does not exist in Zimbabwe.

A Harare lawyer told this paper that it was one thing for a government ministry to ignore a court ruling, but it was the height of arrogance for the ministry to call a press conference to announce that it was not going to respect a court ruling.

“Defying a court judgment is the worst thing a government can do. This behaviour will cascade down to individuals creating a notorious culture of impunity. The President down to his ministers took an oath to observe the law and respect the Constitution. Our Constitution is still an infant, and already, some baby dumping attitudes are being brazenly demonstrated in broad daylight. It only does not make sense, it is abhorrent, and possibly a harbinger of worse things to come,” the lawyer told the Financial Gazette on condition of anonymity for fear of victimisation.

Another lawyer and opposition politician, Jacob Mafume, said for many years, this has been the trend, especially in cases involving land and electoral issues.

Jacob Mafume

“It shows a climate of impunity by government which believes a court order is valid only when it agrees with it and not when it is opposed to it.”

In 1998, after journalists Mark Chavunduka and Raymond Choto — accused of publishing falsehoods prejudicial to the State — were seized by State security agents and held incommunicado for more than a week, the High Court ordered their release three times without luck, only for them to be grudgingly released after a fourth court order.

This was the beginning of the government’s insatiable appetite to ignore legally binding court orders.

On March 17, 2000, then High Court judge, Justice Paddington Garwe, ordered the police and the Ministry of Home Affairs to evict thousands of war veterans and ZANU-PF supporters who had illegally occupied several farms in the country as part of the “Third Chimurenga”, but his order, though issued by consent from all parties involved in the case brought about by the Commercial Farmers’ Union — together with dozens others that followed — was simply ignored out of existence by government.

The common excuse given by the police when it refuses to enforce court orders is that it does not have the necessary manpower to enforce the judiciary rulings.

Ironically, the same force that is purportedly bereft of manpower is ever ready to descend heavily on any opposition gathering that they would have denied clearance to conduct peaceful protests, citing the rule of law.

In June this year, the police disrupted a peaceful march by vendors who were protesting against their planned eviction from the Harare central business district.

In 2002, it took the police a record five court orders to vacate the offices of the Associated Newspapers of Zimbabwe, while in 2004 it had to take the intervention of the Supreme Court to secure the release of businessman and former ZANU-PF legislator, Phillip Chiyangwa, from nearly a month in police custody on espionage charges that were to die a ‘natural death’.

The same applied to human rights activist, Jestina Mukoko, among other cases.

The above cases prompted the Zimbabwe Lawyers for Human Rights Lawyers (ZLHR) to issue a strongly worded statement in 2005 describing the defiance of court orders as “an epidemic”.

“Defiance of court orders has become endemic in Zimbabwe and it is an issue that the Chief Justice of the Supreme Court, (Justice) Godfrey Chidyausiku, (then) Judge President of the High Court Paddington Garwe, and (then) minister of justice, legal and parliamentary affairs, Patrick Chinamasa, must do something about if the integrity of the courts and the justice system is to be protected,” ZLHR said in its statement then.

This week, ZLHR programmes manager, Dzimbabwe Chimbga, said if anything, the culture has since flourished as the organisation has had tens of dozens of cases where court orders are simply ignored by State actors.

“The principle of rule of law is premised on the respect of the laws of the land and this includes judicial orders that are binding against all people and institutions in line with our Constitution. The disregard of judicial orders by State agencies has the effect of undermining the principle of separation of powers that underpins the rule of law.” Chimbga told the Financial Gazette.

“The disregard of court orders creates a constitutional crisis where one arm of government (the Judiciary) is made redundant by another (Executive). This results in a conclusion always made by commentators that Zimbabwe has no rule of law but rather rule by law.”

In 2013, then co-home affairs and now Security Minister, Kembo Mohadi, ignored a High Court order and evicted some villagers from a piece of land that was in dispute in his hometown of Beitbridge and nothing happened to him.

Only last week, Masvingo Provincial Affairs Minister, Shuvai Mahofa — who together with seven other ZANU-PF members occupy key positions that are curiously not provided for under the country’s Constitution — ordered 22 families with a valid court order protecting them from eviction, off Chomfuli Farm on the outskirts of Gutu-Mupandawana Growth Point, replacing them with soldiers from the 4,2 Infantry Battalion.

In February this year, after High Court judge, Justice Francis Bere, who was opening the Masvingo circuit of the High Court noted that it was illegal for the police to demand and collect on-the-spot fines for traffic and other offences, the police issued a statement dismissing the judge’s statement as “personal opinion”.

Police spokesperson Chief Superintendent Paul Nyathi issued the statement in which he urged the public to ignore Justice Bere’s “personal opinion” and continue “co-operating with the police in paying spot fines whenever necessary”.

Justice Bere had pointed out that there was neither a legal framework nor any law which either compelled a motorist to pay a spot fine or which empowered police to impound someone’s vehicle, among other things that the police has been doing for years.