Annex 1
IBA Report on Zimbabwe—2001
EXECUTIVE SUMMARY
This is an executive summary of a report on
the state of the judiciary and the rule of law in Zimbabwe. The
report is of a Delegation of distinguished international judges
and lawyers which visited Zimbabwe between 12 March 2001 and 18
March 2001. The Delegation held meetings in Zimbabwe with lawyers,
judges, academics and government representatives, including President
Robert Mugabe.
The fact finding mission was organised by the
Human Rights Institute of the International Bar Association and
was jointly funded by the Open Society Institute. The Delegation
was sent in light of the growing international concern at the
apparent erosion of the rule of law in Zimbabwe, as evidenced
by reports of lawlessness in the country and intimidation of the
judiciary. The purpose of the Delegation's visit to Zimbabwe was
a fact finding mission "to examine (i) the current status
of lawyers and judges in Zimbabwe; (ii) the legal guarantees for
the effective functioning of the justice system, including the
independence of the judiciary and respect for the judiciary, and
whether these guarantees are respected in practice; (iii) the
ability of lawyers to render their services freely; and (iv) any
impediment, either in law or practice, that jeopardizes the administration
of justice."
At the heart of the crisis concerning the rule
of law in Zimbabwe are the events of 2000 in which commercial
farms were invaded by war veterans and others. It is accepted
by Government that these occupations are unlawful. The Courts
have made orders, to which the State has consented, to bring the
occupations to an end. Yet the Government has refused to enforce
the orders of Zimbabwe's own courts. The last elections were marked
by serious violence. Violence continues in the country. The findings
of the Delegation are:
1. The Government's refusal to obey the
Courts' orders is undermining the authority of the courts and
encouraging a culture of lawlessness in Zimbabwe. The Delegation
believes that land-reform is urgently needed in Zimbabwe. However,
this reform must be brought within the confines of the law. The
notion that the laws and judgements of the courts of an independent
Zimbabwe can be ignored because of the injustices of pre-independence
days is dangerous and misguided. It is through the application
of the law, amended in accordance with the sovereign wishes of
the people, where necessary, that justice is obtained and not
through the encouragement of anarchy and lawlessness.
2. The independence of the judiciary is
being undermined by threats to, and intimidation of, the judges.
Threatening and demeaning remarks and acts have been directed
against the judiciary. No government action has been taken to
stop or discourage people from intimidating members of the judiciary.
Such governmental inaction is unacceptable. The Government has
vigilantly to guard the judiciary against threats and intimidation.
If a society permits its judges to be threatened and intimidated
by violence, then it is only a matter of time before judges bow
to the threats and intimidations.
3. The independence of the judiciary is
also being undermined by the sustained campaign to force the resignation
of a number of judges, including by threats of violence. This
campaign has been fuelled and encouraged by the Government. A
principal target of the campaign has been Chief Justice Gubbay,
who has been forced into early retirement. This forced retirement
of Chief Justice Gubbay and the pressure on other judges to resign
violates the tenure of judicial appointments as guaranteed by
the Constitution of Zimbabwe and in accordance with international
standards.
4. Independence of the judiciary requires
protection for the tenure of judicial appointments. Such protection
is needed to combat the arbitrary wielding of power by government
officials. As such, the Minister of Justice's role in forcing
the resignation of Chief Justice Gubbay and in approaching and
seeking the resignation of two other Supreme Court judges is wrong.
Any attempt by a government official, especially by the Minister
of Justice, to seek the resignation of a judge, whose decisions
against the government are deemed to be unpalatable, is a serious
breach of the independence of the judiciary.
5. An effective administration of justice
requires legal service providers to be free of intimidation and
violence as they carry out their duties and responsibilities.
In some rural areas of Zimbabwe, legal service providers are subjected
to physical assaults, threats and intimidations. The police in
the rural areas are either unwilling or unable to prevent the
assaults and intimidations that have been perpetuated against
legal service providers in the rural areas. This unhindered attack
on legal service providers is adversely affecting the administration
of justice.
6. A professional association of lawyers,
the Law Society, may be under increasing pressure to curtail its
criticism of governmental actions with regard to the judiciary.
The Law Society has been courageous and vociferous in supporting
the judiciary and the rule of law. The Delegation earnestly hopes
that the Government does not intend to pass legislative amendments
that would put limits on the ability of lawyers to engage in public
discussion regarding matters concerning the law and the administration
of justice.
7. The prevalent perception in Zimbabwe
is that selective prosecution based on political allegiance is
taking place. If true, selective prosecution would be in violation
of the constitutional and criminal laws of Zimbabwe. Selective
prosecution would also contravene Zimbabwe's international obligations.
Due to the pervasiveness of the allegations, we note here that
Zimbabwe has a clear obligation to ensure that it administers
justice so that all people in Zimbabwe are accorded equal protection
of the law. Selective prosecution leads to a culture of impunity
in which people believe that they will be able to commit criminal
acts of violence and go unpunished so long as their political
party is able to get elected. The Delegation is concerned that
such a culture of impunity is growing in Zimbabwe.
The recommendations of the Delegation are:
1. The Delegation received assurances from
President Mugabe and the Minister of Justice that the Government
will respect the independence of the judiciary. This assurance
should be publicised to the people of Zimbabwe. This assurance
should also be backed by the following concrete actions:
(a) The Government should now implement
the order of the courts. These orders were made pursuant to the
Government's consent. There is no justification for any further
delay in the implementation of these court orders, though sensitivity
and care should be made in carrying them out; and
(b) A clear and unambiguous statement
from President Mugabe that the continued occupation of the farms
is unlawful and that the time has come for all who are occupying
farm lands to leave those farms so that the question of land reform
can now proceed under the law.
2. The Government of Zimbabwe should zealously
protect judges against threats of physical violence. All reasonable
measures to protect the judges should be made by the Government.
The Minister of Justice, the Attorney General, as well as the
police, should investigate acts that threaten the judges. Given
the importance of the judiciary, none of these officials should
wait for a formal complaint to be lodged before commencing an
investigation into publicly reported and threatening statements
against judges or investigating publicly reported acts that are
an affront to the court. The Delegation received important assurances
from the Acting Chief Justice that he will protect the judges
from attacks.
3. Removal of judges from office should only
be brought about pursuant to the procedures set out by the Constitution.
Acting Chief Justice Chidyausiku told the Delegation that he does
not believe that there is any reason to initiate a constitutionally
mandated tribunal inquiry to investigate any present judge of
the High Court or the Supreme Court. This is an important statement
that should be publicised to the people of Zimbabwe.
4. There should be an independent investigation
to examine the allegations of selective prosecution with the right
to have access to all relevant police and prosecuting authority
files.
5. There should be a clear and unambiguous
instruction to all senior police officers that it is their duty
to investigate all allegations of crime regardless of the political
persuasion of the alleged perpetrator of the crime.
6. Steps should be taken to strengthen the
legal profession so as to increase access to justice in the country.
This is an area in which the International Bar Association will
offer its assistance.
7. The Government should desist from threats
or inducements to influence the views of the legal profession
on matters regarding the independence of the judiciary and the
rule of law.
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