Life, death and justice

In countries controlled by oppressive regimes, upholding the law can be a dangerous business. David Bean QC reports on those brave enough to risk their lives rather than sacrifice their integrity

Saturday 11 January 2014 02:25

Pictures of Zimbabwe farmers clutching court orders that declare their legal right to own their land graphically illustrate the impotence of the country's judiciary. The white farmers know that time is running out and that not even intervention by Zimbabwe's highest court can stop the executive from forcing them from their homes.

Kofi Annan, the UN Secretary-General, has said that "the rule of law is essential to peace, development and the realisation of human rights". But in Zimbabwe the rule of law is in a desperate state. Decisions of the courts are ignored by the Mugabe regime. Independent judges are threatened with violence, forced to quit and replaced by government supporters. Officers of the Zimbabwe Law Society have been arrested and threatened with prosecution. Anthony Gubbay, the former Chief Justice, vividly described the process:

"Most disturbing was the harassment of the High Court and Supreme Court judges by war veterans. They called upon judges to resign or face removal by force. The Minister of Information spearheaded the campaign by accusing the Supreme Court of being biased in favour of white land owners at the expense of the landless majority. The invasion of the Supreme Court building on the morning of 24 November 2000, by close to 200 war veterans and followers, was disgraceful. It sent a clear message that the rule of law was not to be respected. There was no official condemnation of the incident. Not a word was heard from the President, the Minister of Justice or the Attorney General.

"On 14 December 2000, speaking at his party's annual conference, the President disowned the courts, saying that 'they are not courts for our people and we shall not even be defending ourselves in these courts.'

"All such attacks against the judiciary show a blatant and contemptuous disrespect of the process of the constitution, which guarantees judicial independence. Judges should not be made to feel apprehensive of their personal safety. They should not be subjected to government intimidation in the hope that they become more compliant and rule in its favour. They should not face anything other than legitimate criticism arising from what was done in the discharge of judicial duty."

Gubbay was forced to resign and replaced by a government supporter. In a case where the Commercial Farmers' Union sought to challenge the legality of the confiscation of farms, the new Chief Justice was asked to recuse himself (step down from the case). He replied thus: "The unbridled arrogance and insolence with which the application for the reconstitution of this Court was made in this case is simply astounding and unacceptable. This is the first and the last time that such contempt of this Court will go unpunished." So in future, even to apply for a Mugabe stooge to stand down will land a lawyer in prison. According to Adrian de Bourbon, the chairman of the Zimbabwe Bar Council, a small number of independent judges remains, but since the Supreme Court, which also sits as the Constitutional Court, is dominated by judges perceived to be proactive in favour of the government, Zimbabwe no longer has an independent judiciary.

No one could criticise the judges who have resigned: judges do not have armies or "war veterans" at their command, and a government determined to use force to eliminate an independent judiciary will get its way. An example is the case of Chief Justice Kiwanuka of Uganda in 1972.

Benidicto Kiwanuka was born in Uganda and came to London to study law. He was called to the English Bar by Gray's Inn and returned to his home country to practise. He also went into politics and was Chief Minister of Uganda in the period when independence was being negotiated with the British government.

In June 1971, at the age of 49, he was appointed Chief Justice of Uganda, the first Ugandan to hold that position. He carried out his judicial duties with integrity and distinction. The courts were riddled with delays, inefficiencies and in some cases corruption. Substantial reforms were necessary, and Kiwanuka made a start on them during the short time he held office.

But President Idi Amin's regime was becoming a violent and lawless dictatorship. The crunch came when a UK businessman, Daniel Stewart, was illegally detained by the government and applied for habeas corpus. The Chief Justice, despite thedanger to himself, granted the application. A few days later he was dragged away by government security men. He was never seen again. It appears that he was murdered by Idi Amin. He was not alone: Archbishop Jawani Luwum was among many others who suffered a similar fate. They should be remembered when Amin's son says, as he did recently on the Today programme, that his father is a harmless, peace-loving old gentleman whose only wish is to return home.

Chief Justice Kiwanuka is not the only judge in modern times to have been killed for doing his duty. Northern Ireland has lost judges and magistrates to terrorism. Italy has had judges assassinated by the Mafia. But there is something uniquely appalling about a judge being murdered by the government of the country that he serves. Kiwanuka's judicial heroism deserves to be remembered. We should salute the memory of a brave and honourable man who gave his life for the rule of law.

David Bean QC is chairman of the Bar Council