The decision of Zimbabwe's High Court not to compel the immediate release of the 29 March presidential election results comes as no surprise to most seasoned observers. Over the past seven years, the judges of Zimbabwe's courts – virtually all of whom owe their jobs to Mugabe's ruling Zanu-PF party – have operated, day in and day out, in a world suffused with politics.
Judges appointed or retained on the bench after 2001 were chosen for one quality above all others: their apparent willingness to lend the court's process to the service of Mugabe's Executive. In numerous cases challenging the legitimacy of the executive measures that were palpably in violation of the law and the norms of justice, the new judges departed from established legal principles in order to legitimate executive action.
In electoral cases, a particularly favoured strategy for facilitating ruling party purposes was to mothball matters until a decision, when rendered, was of no more than academic interest. With few exceptions, the newly-appointed judges have actively collaborated with a regime that has systematically violated human rights and subverted the rule of law in order to maintain its hold on power.
No one is appointed to Zimbabwe's benches without deep political connections, especially not since about 2000, when the ruling party's hold on power was seriously threatened.
Judge Tendai Uchena came to international prominence for presiding over the petition by the opposition Movement for Democratic Change to compel Zimbabwe's electoral authorities to release the results of an election held more than two weeks ago. He was, insiders say, given a helpful lift up the ladder by a relative. Former Judge President, Paddington Garwe, a ruling party loyalist previously tasked with recommending appointees to President Robert Mugabe, is Mr Uchena's cousin. He could personally vouch for Uchena's political credentials when his name came up for appointment in 2001.
Whatever the immediate circumstances of his appointment to the High Court may have been, what is not in doubt is that Uchena is one among a number of judges who were appointed to their positions after Zanu-PF decided to purge the bench of independently-minded judges whose decisions did not please the authorities. Asked to explain the policies of the Mugabe government on judicial independence, the then Minister of Justice, Patrick Chinamsa, famously said, "we cannot have judges operating like unguided missiles".
Mugabe's government has ensured their compliance by co-opting them into a number of schemes that compromised their independence. Independent audits of Zimbabwe's Fast-track Land Resettlement Scheme show that, with the exception of two or three individuals, all judges serving in the High Court were propelled to the front of a long queue of ruling party cronies who were given farms acquired from white commercial farmers under legally questionable arrangements.
Over the years, the farming judges have benefited from preferential loans, subsidised farming equipment, fuel and other government assistance to enable their farming enterprises, which they juggle with regular court duties. Authorities turn a blind eye while judges spend most of their working hours farming instead of hearing cases, or use their clerks to sell tomatoes and chickens in Court premises to a captive market of litigation lawyers.
Undoubtedly the politics of the day weighed heavily on Judge Uchena's mind as he decided the petition by the Movement for Democratic Change to compel Zimbabwe's electoral Commission to publish results from the 29 March election. Zimbabwe's political sands are shifting, and judges who have for years sacrificed legal principle to implement illegitimate policies of the Zimbabwean government, wrapping them up in the mantle of law, face the real possibility that they will lose their jobs under an MDC government that has promised to clean up the benches and restore the rule of law.
The government-run media reinforce their fears: An ominous article appeared in yesterday's Herald, publishing details of the MDC's plan to sack prominent judges as soon as it assumes power. Uchena would probably have read today's paper.
Though he is yet to reveal the reason for his decisions, it can certainly be justified in pure terms of the law. But no one who has observed the workings of Zimbabwe's legal system in recent years will believe that this case turned anything but the whims of the ruling party.
Gugulethu Moyo is a Zimbabwean lawyer. She is editor of the book 'The Day After Mugabe'.Reuse content