By Alex Magaisa
IN contrast to his dismissive approach in the Tsvangirai case in 2002, Chidyausiku readily accepted that Mawarire had locus standi.
Chidyausiku was not wrong to find that Mawarire had locus standi in 2013. He simply adopted the approach that the court had taken in the past as duly confirmed by Sandura in the Tsvangirai case back in 2002.
What was wrong was for Chidyausiku to deny Tsvangirai the right to be heard in the 2002 case on the spurious ground that he did not have legal standing.
But then, in the Mawarire case it was in the interests of ZANU PF to get judicial validation for early elections without reforms, whereas in 2002 it was not in ZANU PF’s interests to declare that (President) Mugabe’s powers under section 158 of the Electoral Act were unconstitutional and illegal.
Indeed, after SADC recommended that Zimbabwe extends the deadline for elections in 2013, it was obvious that it was a useless recommendation since this was to be decided by the Chidyausiku court and it was clear that he would disregard SADC’s word.
ZANU PF wanted an early election and Chidyausiku was not going to stand in the way. He was certainly not going to listen to SADC and therefore uphold the opposition’s demands for more time.
Later, after the controversial elections, when Tsvangirai withdrew his presidential election petition, Chidyausiku still insisted upon proceeding with the petition.
It did not make sense since the petitioner had withdrawn the petition. But Chidyausiku did not want to be deprived of the opportunity to make a judicial pronouncement on the validity of the election.
He realised that accepting Tsvangirai’s withdrawal would mean the newly established Constitutional Court would not be able to endorse the election as they had hoped.
So the charade went on, as the Constitutional Court sat to decide on a virtually dead matter after summoning Tsvangirai’s lawyers to the court.
Tsvangirai’s withdrawal was a response to a number of reasons, including the fact that the courts had conspired to prevent the availability of election materials which were necessary for the prosecution of the case and it was plain that he would not get a fair hearing and the petition would only serve to give the Chidyausiku court an opportunity to confirm the validity and therefore legitimacy of a flawed election.
Another important case which demonstrated Chidyausiku’s political biases was the case of Bennett v Mnangagwa NO & Ors 2006 (1) ZLR 218 (S).
This is the case that involved the physical confrontation in Parliament between Roy Bennett and Patrick Chinamasa.
During a heated parliamentary debate Bennett had pushed Chinamasa after the latter had provoked him with certain personal comments.
Chinamasa lost balance and fell to the ground. Bennett had been found guilty by Parliament sitting as a court and sentenced to a term of imprisonment for 15 months.
Bennett challenged the constitutionality of his trial and the sentence that was imposed.
He argued that he had not received a fair hearing since the committee that decided his case and Parliament consisted of a majority of ZANU-PF MPs who had voted on party lines.
Writing for the majority, Chidyausiku held that while 15 months’ imprisonment was severe, it was not a grossly disproportionate sentence.
He equated the assault to an assault upon a judge during court proceedings and “must rank among the worst cases of contempt of Parliament.
“The applicant was not contrite and indeed bragged and boasted about what he had done.” The tone of his judgment was harsh and intemperate, approximating that of an aggrieved party.
He was equally dismissive of the view that Chinamasa had provoked Bennett, stating that the insults that Chinamasa had traded were common and Bennett should not have been surprised by them.
Chinamasa had made generalised references to Bennett’s ancestors as thieves during a debate on the Stock Theft Bill.
Chidyausiku dismissed Bennett’s view that Parliament and the Privileges Committee, which passed the sentence, were not impartial tribunals since they were dominated by ZANU-PF members.
He wrote:“I do not accept that the appointment of three out of five members of the Committee from ZANU-PF to enquire into the alleged contempt of Parliament by the applicant per se constitutes a violation of the rules of natural justice that nobody should be a judge in his own cause.” He refused to question the role of Parliament sitting as a court, saying: “When Parliament sits as a court it is not sitting as a court of law or an adjudicating authority. It is a court of its own kind, created by law …”
He reasoned that this meant it did not have to follow the principles and rules normally associated in court proceedings. He refused to apply the right of protection of law to Parliament sitting as a court suggesting that the Declaration of Rights did not apply to such matters.
Again it was Justice Sandura who provided the sober voice of reason and moderation, but as had become tradition, his was a lone voice in a packed Supreme Court.
In his dissenting judgment, Justice Sandura held the sentence was grossly disproportionate and outrageous given that it was a common assault.
He wrote: “There could be no doubt that the sentence was grossly disproportionate to the seriousness of the offence and was therefore unconstitutional … In my view, no one could possibly have thought that the offence committed by Bennett, which was essentially a common assault, deserved a term of imprisonment. Any term of imprisonment imposed for such an offence would be a sentence which is so excessive as to shock or outrage contemporary standards of decency.”
He warned: “A sentence of imprisonment is a rigorous and severe form of punishment which should be resorted to only when it is absolutely necessary to do so.”
He thought other forms of punishment would have been appropriate and that the “excessive devotion to the cause of deterrence” should have been curbed.
Sandura also noted that the Attorney General had initially conceded in his written submission that the sentence was excessive and grossly disproportionate to the offence, before that concession was mysteriously withdrawn without any valid reason being offered.
Sandura reasoned that the failure to give a valid reason for the withdrawal of the concessions should mean that there was no valid reason justifying the withdrawal of the concessions.
However, Chidyausiku took a different approach, completely refusing to recognise the concessions and instead holding on to the point that it had been withdrawn, albeit without any reason being offered.
Chidyausiku had no interest in the fact that the Attorney General had conceded on the excessiveness of the sentence. In the end, Bennett served his sentence.
The ZANU-PF lawyer
The pattern of Chidyausiku’s judgments is consistent with his political background.
Before he entered the judiciary, Chidyausiku had been an active politician and he was a member of ZANU-PF at independence.
He was elected to Parliament on a ZANU-PF ticket in the first democratic elections in 1980. He was appointed to the first government by (President) Mugabe, where he served as a deputy minister.
Chidyausiku was also the ZANU-PF lawyer, representing the party in an important case just before the 1980 elections: Zimbabwe African National Union (Patriotic Front) v United African National Council and Others 1980 ZLR 69 (G) The facts were that on February 23, 1980 ZANU-PF brought an application to the High Court seeking to stop its rival, Bishop Abel Muzorewa’s UANC from providing food, drinks and entertainment at Huruyadzo — a political rally which was billed as the biggest in history, lasting four days.
The UANC promised that there would be a draw at the rally with six cars on offer as prizes.
Part of the advert read: “The biggest rally in the history of Zimbabwe starts on Thursday, February 21st. There will be so much to hear, so much to see and so much to do that the UANC Huruyadzo Rally will last for four days, until Sunday, February 24.”
ZANU PF argued that the conduct of the UANC was unfair on other competitors as it was designed to influence voters.
It wanted the court to stop the UANC from doing these acts.
The Court held that providing food, drinks and entertainment to voters was not an offence.
The court stated: “It is not an offence to provide food or drink or entertainment. It only becomes an offence if it is done for the purpose of corruptly influencing a voter how to vote, in other words, either to vote or to refrain from voting in the particular manner so influenced … You may have to bring people to Salisbury, and you are allowed to bring people to Salisbury in order to attend the rally. That is perfectly permissible. You may provide them with food and drink in order to enable them to participate in the meeting and listen to speakers in the manner I have described.”
However, the court found that the proposed draw of cars was a different category of conduct and amounted to an offence of bribery in terms of the Electoral Act. In the court’s view, it was not necessary to enable persons to attend the rally.
Chidyausiku’s representation had delivered a partial victory for ZANU-PF, at least in so far as the car draw was concerned.
The irony of cause is that once it gained power ZANU-PF has gone on to mimic and perfect the UANC’s conduct in 1980 — essentially abusing State resources in order to influence voters. Even acts of alleged corruption have been justified on the basis of promoting party interests.
In the last four decades Chidyausiku has been called upon on several occasions as a judge to make decisions in cases where his old party, ZANU-PF is involved, often as a perpetrator of electoral malpractices.
His attitude towards Tsvangirai when he brought his case just before the 2002 election is therefore hardly surprising.
Nor is his approach in the Bennett case.
And indeed, his judgment in the Jealousy Mawarire case just before the 2013 elections and the subsequent petition after it.
It is hardly surprising that the opposition parties were pining for a complete overhaul of the judiciary during the constitution-making process.
It was prompted by the belief that the Chief Justice and most of his team on the bench were biased against the opposition.
There was controversy over judicial appointments during the inclusive government, with (President) Mugabe refusing to consult with his prime minister whenever judges had to be appointed.
President Mugabe preferred to do as he had always done in the past — exercise the power without any checks and balances.
On the day that he signed the new Constitution into law, moments before this ceremony, President Mugabe conducted a swearing-in ceremony of judges, unbeknown to his fellow principals.
The sole purpose of appointing judges literally on the eve of the new Constitution coming into force was to avoid new provisions that would have required (President) Mugabe to submit to checks and balances, such as public nominations and interviews.
In the women’s corner
While his role in the land cases was clearly activist in so far as promoting the cause of land reform was concerned, and while his attitude towards civil and political rights has been less than enthusiastic, Chidyausiku has a few cases in which he showed an activist streak.
One of the most emblematic cases, which is often undervalued is the case of Chawanda v Zimnat Insurance Co Ltd 1989 (2) ZLR 352 (H) decided when he was still at the High Court.
I wish to acknowledge my two friends, Charles and Tererai, who helped me in my research. They bear no responsibility however for the content of this article, all of which rests upon my shoulders.