Select Committee on Foreign Affairs Appendices to the Minutes of Evidence

Annex 1

IBA Report on Zimbabwe—2001


  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.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 31 July 2002