Godwills Masimirembwa Correspondent
I do not know what race Muckraker belongs, but sounds Caucasian. If not Caucasian, he is sold out to colonial values. In his March 3, 2017 rant against retired Chief Justice Godfrey Chidyausiku, he sought to compare the Zimbabwean patriot (Chidyausiku) to the Rhodesian conformist (Gubbay). The two legacies are like chalk and cheese. Chidyausiku was a fighter for justice and equality. Gubbay fought to preserve and protect the unjust social order inherited form the colonial past. Gubbay’s legacy was of fighting against the return of land to indigenous Zimbabweans, protecting and defending Caucasian ownership of land forcibly taken away from Africans.
That is what defined him on the bench — a conformist to colonial values and Caucasian supremacist theories. His posturing on the rule of law referred to by Muckraker belies his acceptance of a judicial appointment as a judge of the High Court of Rhodesia in May 1977 at the height of the liberation struggle. What rule of law did he swear to uphold in Rhodesia? To fight freedom fighters? To consolidate the oppression of indigenous Zimbabweans? Upholding unjust laws? When his Excellency, President Robert Gabriel Mugabe, gave the all Caucasian Rhodesian bench a chance to live in the new light of independence, it should have been a Damascene moment for them, but alas, the bench continued in its Rhodesian ways.
This is why Gubbay never saw the injustice of the land robbery by Cecil John Rhodes and co-gangsters. This is why he did not see anything wrong with the decision of the judiciary in the case of “In re Southern Rhodesia, 1919 AC 211”, in which the dispossession of Africans of their Zimbabwean land was sealed by the judiciary — the rule of law Muckraker? That Zimbabwe had no owner and the marauding Caucasians found it!
That the parcelling out of Zimbabwe to Caucasians was therefore legitimate, conferring rights on them which would require adjudication if indigenous Zimbabweans demanded their land back! What happened to the legal principle that theft is a continuing offence, and that therefore whoever is found in possession of the stolen property, no matter how innocent, has no title to it? No title accrued to subsequent generations of Caucasians who inherited or bought stolen Zimbabwean land. It remained the land of indigenous Zimbabweans.
But Gubbay did not interpret the land reform programme from this perspective. He used the perspective of colonialism — that the Caucasians had legitimate title to the land. On the other hand, Chidyausiku belongs to the generation that fought for this country.
Muckraker calls it “a certain by-gone era”. To indigenous Zimbabweans, it is not a by-gone era. It is the era, which informed yesterday, today, and continues to light the future. It is the era which brought independence to us — independence from a State governed by the Rhodesian legislature, executive and judiciary, to which Anthony Ray Gubbay belonged. When it came to interpreting laws relating to the land reform programme, a paradigm shift informed by the values of the liberation struggle was desperately needed.
The legislature and executive had done their part to ensure that land was returned to its rightful owners — indigenous Zimbabweans. The judiciary was the only pillar of the State which was still in Rhodesia, resisting every move by the executive and the legislature under the guise of the rule of law. It stood in the way of the complete fulfilment of Mbuya Nehanda’s prophecy “mapfupa angu achamuka”, “amathambo ami azavuka” (My bones will surely rise!). It must be remembered that the historical social issue about colonial conquest was not about universal adult suffrage, it was about the forcible dispossession of land.
Lobengula, Mbuya Nehanda, Sekuru Kaguvi and all the brave men and women who sacrificed for this country fought for the restoration of land to indigenous Zimbabweans. A judiciary which did not subscribe to this unassailable truth could only be at loggerheads with a legislature and executive elected into office by dispossessed land hungry Zimbabweans. A judiciary at loggerheads with the legislature and the executive represents the antithesis of State craft.
The legal governance of a State requires as little friction as possible between and amongst the three pillars of the State. What Muckraker must know is that the judiciary is part of the legal governance of the State.
The executive initiates legislation, the legislature passes the proposed legislation into law, the executive enforces that law, and the judiciary interprets/gives the meaning of that same law. The three pillars of the State are not in contestation with each other.
They are cut from the same cloth of mores and values. If they are not, as was the case with the predominantly Caucasian bench inherited from Rhodesia, there is bound to be serious discord between and amongst the three pillars of the State. In the same vein, the doctrine of separation of powers represents a distribution of powers among the three pillars of the State, but maintaining necessary interrelationships and co-ordination to enable the proper governance of the State.
There can never be a complete separation of powers as envisaged by the Muckrakers of this world. It does not happen anywhere in the world for it will bring governments to a standstill. It is worth quoting snippets of the “fire side chat” of March 9, 1937 by the former President of United States Franklin D Roosevelt: “. . . Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term in office . . . In 1933 you and I knew that we must never let our economic system completely out of joint again — that we could not afford to take a risk of another great depression.
“We also became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown the system out of joint. “We then began a programme of remedying those abuses and inequalities. . . National laws are needed to complete that programme . . . The courts have cast doubts on the ability of the elected congress to protect us against catastrophe . . . Last Thursday I described the American form of government as a three horse team provided by the Constitution to the American people so that their field might be ploughed. “The three horses are . . . the Congress, executive and the courts.
Two of the horses are pulling in unison today; the third is not . . . The court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State legislatures . . . In the last four years, the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy making body . . . We have therefore, reached the point as a Nation where we must take action to serve the Constitution from the Court and the Court from itself. I want . . . an independent judiciary . . . It does not mean a judiciary so independent that it can deny the existence of facts universally recognised.
“How, then, could we proceed to perform the mandate given us? . . . I came . . . to the conclusion that…the only method . . . was to infuse new blood into all our courts. . . We must have judges who will bring to the courts a present-day sense of the Constitution . . .
“Our difficulty with the court today rises not from the court as an institution but from human beings within it. But we cannot yield our Constitutional destiny to the personal judgement of a few men, being fearful of the future, would deny us the necessary means of dealing with the present”.
The appointment of Godfrey Chidyausiku to the bench by the President, more particularly to the position of Judge President of the High Court, and subsequently as the Chief Justice, was inspired, for it provided the missing cog in the legal governance of the State. His ruling in the Mhuriro case stopping the eviction of tens of thousands of landless Zimbabweans who had repossessed their stolen land, which evictions had been ordered by Gubbay CJ, as he then was, marked the beginning of the judicial funeral rites of Rhodesia and those who stood by and defended its values.
The case of Minister of Lands & Ors v Commercial Farmers Union 2001 (2) ZLR 457 (S),pitted independent Zimbabwean values against Rhodesian values. Chidyausiku, now Chief Justice, was alive to the gravity of the issue before him and other judges. It was about the very reason why indigenous Zimbabweans went to war against the Caucasian invaders.
He said “More importantly, land acquisition and redistribution is essentially a matter of social justice and not strictly speaking a legal issue. The only legal issue of substance is whether the acquisition is done within the procedures set out by the law.” He also correctly captured the tempo and spirit which threatened greater chaos and lawlessness for the country if the expectations of land hungry indigenous Zimbabweans were not addressed in the context of the injustice of 33 million hectares of agricultural land having been apportioned under Rhodesia as follows: 14 million hectares of the best agricultural land being owned by four thousand Caucasian commercial farmers, who were utilising only 40 percent of that land: 19 million hectares of poor agricultural land being reserved for communal use by 13 million indigenous Zimbabweans.
To add insult to injury the Caucasians were offering a mere 1 million hectares to the Government for acquisition and redistribution. The Government wanted at least 8 million hectares out of the 14 million hectares. On the other hand, Justice Ebrahim, who delivered a dissenting judgement, a judgement which captured Gubbay’s values, is the one who went into a mumbo-jumbo analysis of the meaning of the term rule of law, refusing to interpret the law in the present, to deal with changing social values and norms.
While confessing the need for land reform, he sought to avoid its implementation, as indeed did Gubbay, by resorting to the technical interpretation of the law, instead of adopting a purposive or teleological interpretation of the law. It is preposterous to talk of a value-free interpretation of the law.
On justice or law, Justice Ebrahim had this to say “During argument, the view was expressed that justice was on the applicants’ side (the Government), but the law was on the respondent side (the commercial farmers union). Admittedly law and justice do not always coincide.
Examples of oppressive and unjust laws can be found in many countries. “But this does not mean that the courts, which are sown to uphold the law, can ever allow their personal, subjective view of what constitutes justice to override the clear provisions of the law . . . The courts’ duty is to the law and the law alone. Judges, as individuals, have their own political, legal and social views andopinions. But it is the sown duty of every judge to apply the law, whatever he/she may think of the law.”
But what Justice Ebrahim failed to say in his judgement, is that it is the judge who interprets the law, who gives meaning to the law. Law is interpreted or given meaning by men and women who are moulded and nurtured by a specific political, social, and legal order. Law is not interpreted by an automaton. Justice Ebrahim’s conception of law and justice tallies with that of Gubbay. Gubbay was not interested in justice, just as Ebrahim was not interested in justice.
They were interested in applying the law no matter how unjust, even as they knew the law was unjust, or that their interpretation of it would bring about injustice, or perpetuate an unjust social order. No wonder Gubbay accepted the appointment as a judge to the Rhodesian High Court in May 1977, sworn to interpret and apply the law that sent freedom fighters to the gallows, long prison terms, that allowed the establishment of concentration camps for indigenous Zimbabweans, and with no compunction, wanted to maintain the Rhodesian injustice by refusing to plough together with the legislature and executive the field of social justice on the land issue.
The judiciary is both a political and legal institution, which renders its decisions in legal terms. It appears quiet there in the corridors of the judiciary, particularly the superior courts, but it is the quite of the storm centre. Law is not God-given. It is made by individuals, enforced by individuals, and interpreted by individuals. Consequently, the manner of men and women who occupy judicial office is of crucial importance.
It is not just technical competence which matters. The following words of the former Chief Justice of the United States of America who, in a private letter opposed the appointment of “a Muckraker, an emotionalist for his own purpose, a socialist”, sums up the importance of judges being cut from the same cloth of values and mores as the occupants of the other two pillars of the State: “It is one of the deepest wounds that I have had as an American and a lover of the Constitution and a believer in progressive conservatism that such a man as Brandeis would be put in the court . . . He is a Muckraker, an emotionalist for his own purpose, a socialist.” (Found on page 952 of Henry F. Pringle’s book, titled Life and Times of William Howard Taft, Volume 2, published by Holt, Rinehart and Winston, 1939.
New York.) Muckraker attacks Chidyausiku for being inspired by His Excellency, the President. If one cannot be inspired by the pro-people and pro-development conceptualisation and implementation of the land reform programme, community share ownership schemes, indigenisation, beneficiation of raw materials and industrialisation, the resettlement of over 350 000 families on A1 farms, and thousands on A2 farms, then that person is surely a Muckraker, an emotionalist, and worse still stuck with a colonial mindset.
Muckraker also pokes his nose into the issue of the successor to retired Chief Justice Chidyausiku. The simple truth of the matter is that whoever is to be appointed by His Excellency the President, and by whatever method, must be a man or woman who is able to lead the judiciary so that it ploughs the field of the legal governance of this country together with the legislature and executive, and not at cross purposes with the other two pillars of the State.
Muckraker needs to be reminded, if an example is required, that Justice Merrick Garland of the United States failed to make it to the Supreme Court of the United States of America because the Republican Party did not view him as a team player in the event that it won the elections (which it did).
They saw him as a judge who would interpret the law so as to advance the values of Barack Obama’s Democratic Party, which include protecting and advancing the cause of gays and lesbians. In conclusion, retired Chief Justice Chidyausiku is a patriot, who at a critical time in the legal history of our country stood fearlessly for justice and equality, and insured that what the legislature and executive sought to achieve for social justice was indeed achieved. Hundreds of thousands of indigenous Zimbabweans remain on the pieces of land allocated to them by the Government of Zimbabwe through the resettlement programme partly because the judiciary then led by now retired Chief Justice Chidyausiku plowed the field of social justice together with the legislature and executive.
*Masimirembwa is a lecturer at the Zimbabwe Institute of Legal Studies