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Fidelis Munyoro Chief Court Reporter

The mistrust of judges by members of the public owing to judicial misconduct breaks down the mechanism of a functional judiciary.

No judiciary can stand the test of times without the trust and confidence of the people or escape the court of public opinion.

Therefore, judges must be predisposed to virtuous canons of the esteemed judicial office. By virtue of their office, judges must be accountable for their behaviour since the judiciary is built on a footing of public faith-judges.

In many instances, judicial misdemeanors occur in various ways and ethical standards address stroppy actions, omissions and dealings that diminish public confidence.

At least six judges have been either fired or resigned for misconduct, in just over three years.

 Justice for Tapiwa Makore

In one of the spine-chilling murder cases that sent shock waves in the country, the High Court slapped two convicted murderers to death for the killing of a 7-year-old boy, Tapiwa Makore, three years ago in Murewa.

The sentencing of the two in July, provided closure to the murder case that dragged on for almost three years since the gruesome episode occurred.

The two men facing the hangman’s noose are Tapiwa Makore (60) uncle of the slain boy and Tafadzwa Shamba, a 40-year old herdboy.

The duo committed the crime in a proven deep-rooted case of ritualistic murder, as established in court.

The horrendous details of the crime were revealed by Shamba during investigations and in his confessions to the police at the crime scene.

It emerged during the trial, that Shamba and Makore were under the influence of drugs when they viciously murdered and cut into pieces the innocent boy.

In sentencing the duo, Justice Mutevedzi underscored that no prison term could reasonably equal the brutality of the crime.

Tapiwa Jnr was murdered in September 2020, following which his body was dismembered into multiple pieces.

His torso was discovered being devoured by dogs the morning after he was murdered while his other body parts were found shunted in a pit latrine toilet.

The boy’s mutilated torso was buried a year after he was killed while his head still remains missing.

Though the killers denied the murder charge, Shamba had confessed earlier on, giving graphic details on how they killed the boy. In terms of Section 48 of the Zimbabwe Constitution, the death penalty may be imposed only for murder committed in aggravating circumstances and only on men aged between 21 and 70 years – not on women.

The last execution of convicts was made in 2005, with the death sentence still being challenged on whether or not it should be abolished, leaving scores of death row prison inmates after they were sentenced to death in the country’s jails.

Resignation of judges

The year under review saw the resignation of two High Court judges in a space of seven months due to unremitting pressure over allegations of misconduct.

In April, Justice Martin Makonese could not bear the brunt of appearing before a tribunal and resigned after the swearing- in of a tribunal to investigate his suitability to hold office over allegations of improper behaviour.

He quit immediately after President Mnangagwa swore in the tribunal chaired by retired judge Justice Simbi Mubako.

The judge was being accused of issuing an order in a coal mine dispute in which he allegedly had a financial interest.

He allegedly made the order without any outside application before him and without the knowledge of lawyers of the two other parties in the dispute.

Seven months down the line another High Court Judge Justice Webster Chinamora could not stand the hit and quit ahead of an inquiry following the compilation of a damning dossier by the Judicial Service Commission (JSC) alleging a litany of transgressions in the course of his duties.

President Mnangagwa set up the tribunal on the recommendation of the JSC which found that Justice Chinamora could have engaged in gross misconduct, interfered in the course of justice and presided over matters in which he had conflict of interest.

His resignation aborted the tribunal as he was no longer a judge.

The two joined a growing list of judges that left the bench in recent years either as a result of tribunal recommendation to the President or as a result of a tribunal being appointed by the President.

This rate of departure from the bench has raised queries about how judges are appointed.

There are suggestions that the system introduced in the 2013 Constitution may need further revision.

The frequency of the tribunals was nerve-wracking and showed that something needed to be done to improve the conduct or selection of some judges, Attorney-General Mrs Virginia Mabiza, was quoted as saying in an interview. She opined that the present system of creating the short list for the final selection by the President might be need to be improved and perfected.

In the earlier system, the Judicial Service Commission took soundings within the legal and judicial communities and vetted potential High Court judges confidentially and then approached the ones thought suitable to see if they agreed to having their names go forward.

Now potential judges need to apply and go through a process that includes public interviews.

Elevations to the Supreme Court and Constitutional Court benches have now returned to the older system where judges no longer apply for promotion, following a recent constitutional amendment, but are once again confidentially assessed with the best going forward to the final short list.

Conflicting landmark judgments

The year also witnessed challenges which emerged from parties pursuing the same issue before different judges who may each be seized with similar aspects of their litigation.

The result is divergent judgments from the same court.

Two conflicting judgements were handed down by the High Court regarding whether or not the respondents were liable to the applicants for settling debts using foreign currency in the face of changes to the country’s financial laws.

The judgments worth noting are the controversial Duncan Hugh Cocksedge v CABS, RBZ and Minister of Finance, by Retired Judge Justice Chinamora and the other involving an architect practice fronted by partners Ms Penelope Douglas Stone and Mr Richard Harold Stuart Beatie vs CABS, by Justice Joseph Mafusire. Whereas, Justice Mafusire in the case, which had similar facts, had declared the “one to one” conversion rule unconstitutional, Justice Chinamora disagreed with his brother judge.

The rationale of Justice Chinamora was that courts cannot set aside Government policy because of the separation of powers rule.

This position has been established by the courts in the United States for many years.

The two judgments were given on different dates.

 No sacred cows on corruption

There are no sacred cows in the fight against corruption and any citizen found puddling in dodgy dealings will face the full wrath of law despite their station in life or political affiliation.

The introduction of two institutions, the Zimbabwe Anti-Corruption Commission and Special Anti-Corruption Unit, to arrest corruption has resulted in progressive results in curbing corruption in the country.

A number of high-profile figures have been arrested, prosecuted or sent to jail over the past few years and assets worth millions of the United State –dollars have been seized, confiscated and refunded to the state.

And the two high-profile cases of former finance deputy minister Terrence Mukupe and Zimbabwe Miners Federation president Henrietta Rushwaya have proven that the courts will frown upon.

As the government anti-corruption crusade continues, two high–profile figures were convicted and sentenced for smuggling by the High Court. The Zimbabwe Miners Federation president Henrietta Rushwaya escaped jail with a US$5 000 fine for trying to smuggle 6kg of gold to Dubai in the United Arab Emirates. The gold worth more than US$333 000 was forfeited to the State. Four small bars of pure gold were found in her hand luggage.

Rushwaya denied the charge claiming that she had picked up the wrong bag, but she was charged with presenting an invalid export licence.

All exports of gold must be accompanied by a permit. Rushwaya was charged alongside two agents from the country’s national intelligence agency, who were both acquitted due to lack of evidence.

Former Finance and Economic Development Minister Terrence Mukupe and three accomplices were jailed three years in prison and fined US$12 780 each for evading customs duties on more than 138 000 litres of diesel.

A Zimra crack team at Chirundu Border Post smashed the scheme to evade customs duties in 2017 when they intercepted trucks owned by Mukupe and found that they were transporting water instead of diesel.

Mukupe was convicted along with drivers Sam Kapisoriso, Joseph Taderera and Leonard Mudzuto, for unlawfully importing diesel without paying duty.

The three drivers drove the tankers into Zimbabwe with diesel meant for the Democratic Republic of Congo, but replaced the fuel with water in Zimbabwe.

In sentencing, the quartet, Justice Chikowero moved away from the presumptive two years, to impose the hefty penalty on the four, considering the serious consequences the crime had on the country’s economy and financial health and the need to deter organised crime operating across borders.

In another corruption intriguing case, former Zinara chief executive Frank Chitukutuku and his wife Nyasha, lost their two upmarket houses, a fleet of vehicles and shares in two businesses believed to have been bought from proceeds of corruption, after the High Court granted State application for civil forfeiture.

The forfeiture of Chitukutuku assets in a civil matter, came s after he and ex-Zinara technical director Moses Juma were acquitted of corruptly awarding a tender to a local company for the rehabilitation of roads in three rural district councils.

While he was acquitted of criminal corruption, he still lost the money he acquired through that alleged corruption.

In the criminal trial, the proof had to be beyond reasonable doubt. In the civil suit, the judge had to only consider the balance of probabilities.

This means it is quite possible that someone can be acquitted of corruption-related charges but lose assets on the basis that they were bought with corrupt funds.

The National Prosecuting Authority (NPA) sought civil forfeiture of almost all of Chitukutuku assets, but the High Court left him something.

The NPA brought the application for civil forfeiture against Chitukutuku arguing that he acquired the property using proceeds of serious offences, which he committed when he was the chief executive officer of Zinara.

He registered some of the property in his name, some jointly with his wife and the rest as belonging to his company Hot Spikes (Pvt) Ltd. Chitukutuku and his wife Nyasha are the directors of Hot Spikes.

In its case, NPA argued that Chitukutuku engaged in conduct constituting one or more of the offences of corruption, money laundering and fraud and, as a consequence, obtained money which he then used to acquire and in some cases develop the property that is the subject of the application.

 Bona Mugabe-Simba Chikore divorce

Another intriguing case was the divorce of Ms Bona Mugabe from former pilot Simba Mutsahuni Chikore in March.

The couple was married at a lavish wedding in 2014 that was attended by several African heads of state – and was broadcast live on state television.

But the marriage has now collapsed and Bona has approached the High Court seeking a decree of divorce citing a total breakdown with no prospects for restoring the union.

The legal proceedings over the divorce of the two seem to involve complex disputes over how assets they hold individually and jointly, as Chikore listed 21 farms, more than 25 upmarket residential properties, cash, plus companies and movable properties worth millions of US dollars.

While Bona Mugabe in her original divorce petition sees the marriage as irretrievably broken down, Chikore thinks in his response that the couple’s marriage is capable of restoration provided they get genuine counselling and family support, although he qualified this by suggesting there is interference from third parties and personal agendas.

According to the court papers, the parties have lost all love and affection for each other and have been living apart for more than nine months.

She cited Mr Chikore’s activities outside marriage as one reason for the breakdown. The couple has three children aged seven, five and two.

Cyclone Idai victims’ closure

With all hope of ever recovering the remains of at least 279 still listed as missing by the police following the March 2019 Cyclone Idai, the Government which now seeks to bring closure to the issue, last month launched a class action on behalf of the affected families.

The class action allows families to acquire the death certificates they need for inheritance, to allow surviving parents and guardians to act without contest for minor children, and for survivors to carry on with their lives with the minimum of legal fuss.

While families can seek a similar court order to have a missing person presumed dead after five years, with a class action by the Attorney General Mrs Virginia Mabiza, there are no legal fees for the survivors, which is critical considering that many of the affected families are poor.

Cyclone Idai struck the country in March 2019, affecting 270,000 people. The storm and subsequent flooding and landslides left at least 340 people dead and many others missing.

Major efforts to rescue the living and then recover the dead were made, but after four years the police still have those 279 listed as missing and their families now need closure.

Chimanimani and Chipinge districts were hardest hit. The AG has a number of functions in terms of the Constitution including to promote, protect and uphold the rule of law and defend the public interest.

As such Mrs Mabiza has in terms of Rule 57 (1) (a) as read with section (4) of the Class Actions Act and section (3) of the Missing Persons Act instituted a class action in the High Court at Mutare seeking an order to have 279 victims of Cyclone Idai who have been verified missing by the police to be declared dead.

This will enable the Registrar of Deaths and Births to legally issue death certificates and any other relevant documentation to the next of kin of the missing persons.

Typical challenges facing the families of the missing victims include: failure to obtain birth certificates for their children; failure to access pensions and other benefits of their missing relatives; and failure by the Civil Service Commission to fill vacant positions left by the missing persons, among others.

And it is for these reasons that the AG has seen it necessary and desirable in the public interest to institute the class action on behalf of the affected families.

 Zim to host top African jurists

As the curtain on the 2023 legal year calendar comes down, the judiciary continues to post milestones, which positively influenced access to justice initiatives in many ways and the year under review ended on high note, as Zimbabwe won the bid to host the biggest gathering of top judicial officials in Africa to be held in October next year, viewed as a key milestone for the country’s justice delivery system.

The country will host the 7th Conference of Constitutional Jurisdictions of Africa (CJCA) where at least 50 Chief Justices are expected to converge in Victoria Falls for the three-day indaba.

Early, this month (December), the secretary-general of the CCJA Mr Laraba Moussa, who is based in Algeria, visited the country to assess her readiness to host the mega event lined up for next year in the resort town of Victoria Falls.