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Justice Makarau . . . .”Chief Justice Chidyausiku leaves a legacy of hard work, unity within the Judiciary and independence”

THE INTERVIEW Christopher Farai Charamba
CC: Justice Makarau, how would you describe Chief Justice Chidyausiku? What sort of a man was he and what sort of judge was he?

RM: I would describe him as a nationalist par excellence. I would describe him as an unmitigated patriot, a legal icon who used the law to further the interests of his country and further the interests of its people.

Chief Justice Chidyausiku was a keen legal brain. He would be able to pick up legal principles, explain them, examine them, analyse them and see if they were still relevant for Zimbabwe. He always had Zimbabwe at the centre of his judgments.

He was also a fearlessly, independent-minded judge and he would defend the independence of the Judiciary with all that it would take. This also gave us a very good standing as the Judiciary in that he portrayed us as an independent Judiciary and he encouraged us to be independent.

He would always ask me whenever I took a suggestion to him or if we wanted to do something administrative, how protected the Judiciary was in that course that we intended to take. So I would say he was fearlessly independent and he always wanted to protect the independence of the Judiciary.

CC: What was it like working with him as part of the Judicial Service Commission (JSC) and in the judicial fraternity as a whole?
RM: Working with him is what really moulded me into what I am today. He was a subtle teacher, he would not correct you openly but he would make counter suggestions. He was one of the kindest bosses that I ever worked with.
He was a visionary and whenever you had an idea, he would actually project that idea a lot more, beyond what you had initially thought about. So working with him was one of the most pleasurable moments I have had as a judge and as a lawyer.

CC: During his tenure as Chief Justice, how did he inspire the Judicial system in Zimbabwe?
RM: I would say he inspired us, like I said, to act and think independently. He also inspired us to work very hard. He is on record as being the first chief justice to actually name and shame judges who were not working as hard as he thought they should.
He inspired us to be efficient, he inspired us to always uphold the rule of law even if it was detrimental to your reputation. If that was the correct thing to do, he would always say do the correct thing.

CC: What are some of the highlights and successes that you can point to that can be attributed to his tenure as chief justice?
RM: Quite a number, the very first one that I think of is the establishment of the Judicial Service Commission itself. It was done during his tenure as chief justice and it was his idea that we have unitary Judiciary that was answerable to the chief justice.
Unlike the situation that we had, where the lower Judiciary was answerable to the Executive through the Ministry of Justice and the upper Judiciary being answerable to the judge president in some instances and to the chief justices in the Supreme Court. So the whole vision of coming up with a unitary Judiciary was his.

There is also the vision of coming up with an administration dedicated to administering the courts, again that was part of his vision and part of his success. Now we talk of the Judicial Service Commission as if it has always been there but this was his brainchild, something that he nurtured from birth to where it is today.

Another part of his success, which nobody can doubt, is that he put an end to the debate on the land reform programme. It was his judgment that put an end to all the legal debates that we had. His way of articulating the legal position in a way that protected the national interest.
I think some of us as judges and lawyers were battling with the principles of the law, trying to apply them in a very narrow way, being purely legalistic.
But he was the one who came up with this broad vision to say, yes you apply legal principle but you can also apply it in a way that will benefit your people and that will advance the interests of your people. Those are successes that no one can claim but him.

CC: Speaking on the land reform programme and the judgments that he made, some people have labelled them controversial and that they were politically motivated as well. How would you respond to these claims and what was the thinking, if you might know, that led him to make these judgments in response to the legal debates around the land issue?
RM: I think he was very clear in his mind about the correctness of the land reform programme and he also was very clear that it befell upon him as chief justice to come up with a solution that would serve the interests of the law and the interests of his people.

This judgment, yes is controversial because it was trying to bring in two conflicting interests, the interests of the former possessors of the land and the interests of those who also wanted to possess the land. In that event, it would be controversial depending on which side of the fence you sat.
But I would look at the legal genius of trying to find a solution to a difficult situation and he came up with something that was legally based. It was not a decision that he simply said I want the decision to be this way, it was based on legal principle.

That was his own way of interpreting legal principle; the law is not an exact science, each and every one of us has their own way of interpreting the law. That was his way of interpreting the law but, like I said, he always chose the side of the national interest in interpreting the law. You may say it was controversial depending on which side of the fence you are on.

CC: Another ruling that he made was that of July 2015 in the Zuva Petroleum case, which subsequently led to workers being fired on notice without compensation. What would you make of such a ruling and how would a judge balance the legal principle with compassion for those affected by the ruling?
RM: Again, I would say that this is an indication of his legal mind at work and his jurisprudential thrust which was always to read the law correctly and apply it correctly.  Where there was no room for him to manoeuvre he would not do so.
This was an instance where there was no room for him to manoeuvre. He read the law as it is and interpreted it as it was and that was his way of thinking. There are times when there is no room for equities, we call them equities in law, and sympathies.
This was one instance where in his mind, in his own interpretation of the law, there was no room for sympathies for those affected by the decision.

CC: What sort of legacy would you say Chief Justice Chidyausiku leaves behind in the judiciary and in Zimbabwe?
RM: I think one of the legacies he is leaving behind, a very subtle one, is that you can be a judge, you can be a nationalist and still remain independent. Also that you can play your part as a judge to advance national interests. You can also be a patriot and still remain a jurist, an independent jurist.
He has also left a legacy of hard work. He always told us to work hard as judges and that while we are independent, we are always accountable to the people of Zimbabwe.

Even though there is no one who supervises us on a daily basis, the people of Zimbabwe at the end of the year or at the end of the period have to know what it is we have been doing in our chambers and what it is we have been doing in court.

He also left the legacy of unity within the judiciary, something that we didn’t have before. Now a magistrate can actually aspire to become a judge, that has happened during his term of office. He has rewarded competence, he has acknowledged merit where it exists, he has also advanced the cause of women.

If you notice in the judiciary, I think we are one of those branches of the State where we can boast of close to 50/ 50 ratio in terms of employment. We have more female magistrates than we have ever had before. We have an equal number of female judges in the Supreme Court to male judges. That was because of his deliberate policies of advancing women and also rewarding merit where he saw it.

He has also always wanted the magistracy to be brought up to where it belongs, where the magistracy not only has integrity but it has the respect of the community.

I think in the past we were treating our magistrates just as any other civil servant, but in his view, they are part of the judiciary. Not only should their independence be guaranteed but also the integrity of that office, the respect that should go with that office. He was at pains to make us accord that to the magistracy.