The history of the Zimbabwean judiciary can be traced back to June 10 1891 when the British High Commissioner for South Africa, A Milner, proclaimed that the laws of the Cape Colony would be applicable within the British South Africa Company (BSAC) territory of Mashonaland. The laws that were brought to the Cape by Jan van Reebeck in 1652 were the Roman-Dutch law statutes, which up to now do not take into account the cultural milieu of the indigenous Africans.
Using this template the settler regime enacted various laws to prop up its illegitimate rule; as such there was a clear separation between the law and justice for the indigenous African majority.
Justice Georges, the West Indies born law professor, who was sworn in as the first black Supreme Court Judge on September 7 1981, had this to say of the Judiciary at the time;
“It is quite clear when one looks at (Zimbabwean) laws that there has been a division of population — European and African — and this is reflected in the way many of the laws have been drafted so that the law has always reflected the social reality of the times. Now that this has changed, one expects that those whose business it is to look into these matters will take steps to effect changes to bring the law in line with the new social reality.’’
Zimbabwe’s new Government moved quickly to transform the judiciary to reflect the new dispensation of universal justice delivery.
The composition of the judiciary was key.
At independence, the Zimbabwean judiciary was all white, black faces were not even found in the lower courts. The highest court of Appeal, the Supreme Court, was all white, and had four members.
Five members among them the Chief Justice, Justice MacDonald; the Judge President, Mr Justice J.V.R. Lewis; Mr Justice Baron and Mr Justice Goldin.
The High Court Bench comprised eleven white judges; three of whom, including Justice Squires, had been involved in Rhodesian politics before taking places on the bench.
This all-white judiciary was later joined by Mr Justice Dumbutshena who was sworn in by President Canaan Banana on May 16 1980 as the first black judge in the Zimbabwean High Court.
On May 9 1980, the day Justice Dumbutshena was appointed, the Minister of Justice and Constitutional Affairs, Senator Simbi Mubako, highlighted the need to reform the justice system.
The country had only three black magistrates in April 1980. An analysis of high profile appointments to the High Court for the six-month period, January to June 1980, clearly showed that something badly needed to be done to bring about racial balance in the judiciary.
The inequities were also evident in the structure of the Public Service on the judicial side, where the Attorney General was Mr BJ Treacy; Secretary for Justice, Mr MF Garnet; Senior puisne judge, Mr Justice Beck, and Master of the High Court, Mr M Atkinson. The Government thus began serious programmes to address this imbalance starting with the appointment of 10 acting black magistrates by Justice Minister, Senator Simbi Mubako.
Meanwhile, a crash programme to train magistrates was started at the University of Zimbabwe.
The one-year training course was initially designed for 30 students, but the enrolment was pushed up to 40 following the massive response to the advertisement, where 1 200 instead of the expected 70 applications were received.
The course, which was a response to a presidential directive to bring about racial balance to the judiciary, ran from November 1 1980 to October 31 1981.
On September 28 1980, history was made as the country’s first woman magistrate, Lesotho-born Mrs Kelello Guni was appointed.
A month later, on October 24 1980, following another presidential directive, this time to the Public Service Commission, saw Mr Wilson Runyararo Sandura being sworn in as the country’s first black regional magistrate at the Harare Magistrates Court.
Mr Sandura’s ascension by-passed the usual promotion avenues provided for in the Magistrate Courts Act which provides for the appointment of an advocate of seven years’ standing to senior magistrate and then to regional magistrate.
The Government’s commitment to transform the judiciary was summed up by Senator Mubako when he said of the appointment of Justice Georges, “We have not been able to get any (black judges) locally yet, but nevertheless if we can get a black man from abroad we should make full use of his services.’’
As can be seen from the brief outline above, the Zimbabwean government soon after assuming power, immediately set in motion the process of transforming the judiciary to reflect the aspirations of the new political order. Following the passage of the Supreme and High Court Acts in 1982, the Zimbabwean Supreme Court and High Court were reconstituted to replace the Appellate and General Divisions that characterised the colonial High Court. This was done to bring about efficiency in the justice delivery system, and the year 1983 marked the first full year of the operation of the new Zimbabwean Supreme and High Courts.
Though these Acts effected some form changes in the higher courts, there was no great change in the way the new courts operated.
A Legal Reform Committee headed by Justice Feldsend was set up in the same year; among some of the tasks it wished to undertake was the harmonisation of customary laws and the Roman-Dutch statutes.
From January 2 1983 following the call by Justice Minister, Senator Simbi Mubako, Zimbabwe’s community courts went on circuit as a way of dispensing justice as near to the people as possible.
“All our courts, from the High Courts, the Magistrates courts, to the community courts, have a duty to go on periodical circuits to areas where they are not resident to dispense justice, as near to the people as possible.’’ By April 1983 there were 76 magistrates or acting magistrates and 40 trainee magistrates.
The number of Supreme Court judges was also increased from three to five while the number of High Court judges was raised from six to ten in 1985 to enable the courts to deal with the growing number of cases. The courts were, however, still dispensing the law as they did during the Smith regime prompting the Minister of Home Affairs, Dr Herbert Ushewekunze, to blast some of the verdicts delivered by the High Court. He complained that the white judges in post-independent Zimbabwe were basing their judgments on the “letter of the law,’’ whereas in the past they based it on the “spirit of the law” and in particular to protect an earlier illegitimate era hence the need for judicial reforms in the new dispensation.
Dr Ushewekunze pointed out that the aim of Government was not necessarily to change the colonial judges but to change the institutions they were using, which of necessity, had to be overhauled.
Dr Ushewekunze’s calls were echoed by the new Justice Minister Edison Zvobgo who said the country could not be self-governing if it continued using laws that had been in operation at the Cape of Good Hope on October 30 1891, and which were as interpreted by apartheid South Africa.
By January 1987, the country had 12 High Court judges; this however translated to an increased number of appeals to the Supreme Court. The Supreme Court bench, however, was still understaffed following the retirement and resignation of a number of white judges.
March 31 1989 saw the passage of the Constitution of Zimbabwe Amendment (No. 8), which upgraded the office of the Attorney General to make him a non-voting member of Cabinet and Senate, as well as the Government’s principal legal advisor.
Cde Patrick Chinamasa became the new Attorney General (AG) to sit in Cabinet.
He succeeded Godfrey Chidyausiku who had been appointed High Court Judge in February 1987.
The amendment required the AG to have the same qualifications as a judge of the High Court or Supreme Court.
The Customary Law and Law Courts Bill, which was designed to allow chiefs and headmen to preside over local customary courts, was passed by the Senate on February 8 1990, allowing headmen to preside over primary courts and chiefs over community courts.
This Bill brought the traditional leaders back into the judicial system, from which they had been kicked out by successive colonial regimes.
The first decade of independence closed with significant transformation of both the face and the structure of the judiciary having been achieved.
The justice system was brought to the peoples’ doorsteps with the introduction of circuit courts, community and village courts as well as the decentralisation of magistrates courts to district centres.
Whereas in 1980 there were no black faces in the Supreme Court, the close of the decade saw the black majority dominating the Supreme Court bench. In 1990, the Supreme Court bench had five judges, three of them, Chief Justice Dumbutshena, Justice Korsah and Justice Manyarara were black. The other two were Justice McNally and Justice Gubbay (who replaced Justice Dumbutshena as Chief Justice in May 1990).
Justice Wilson Sandura came on the Supreme Court bench in the same year.
The High Court bench was similarly constituted with the likes of Justice Mutambanengwe, Justice Chinengundu, Justice Muchechetere, holding their own with Justice Blackie, Justice Reynolds, Justice Greenland, and Justice Ephraim, to mention just a few. The number of attorneys and advocates in the High Court had also increased, as had the number of magistrates, which had shot up from a mere ten for the whole country in 1980 to 18 for Harare Magistrates Courts alone.
The changes made in the Zimbabwean Judiciary in the first decade of independence, though significant, had mainly involved altering the composition of the bench to reflect the new social and political reality of majority rule, nothing much had occurred in terms of changing the systems in which the judges operated.
Thus colonial justice largely prevailed in a number of cases as cases of political and economic sabotage saw perpetrators escaping with light sentences.
In spite of this, the executive never sought to interfere. The start of the second decade of independence however coincided with the expiry of the Lancaster House constitutional restrictions, particularly pertaining to the issue of land reforms.
The government moved with speed and enacted the Land Acquisition Act in 1991, as it prepared to implement the agrarian reforms that had been delayed for a whole decade.
A Second Land Acquisition Amendment Act followed in 1996.
This period ushered in the real test of the independence of the judiciary, as some of the white judges who were still on the bench, among them justices Anthony Gubbay, Fergus Blackie, George de Vittie left the bench after failing to reconcile the spirit to the letter of the law on land reform.
A lot of judgements on matters of land reform went against the State, which continued to respect the sanctity of the judiciary as it never meddled to defend the interests of the majority.
It is critical though to note that Government has consistently abided by the rule of law and respected the separation of powers, even when matters such as security and human rights, such as the cases of Dr Richard McGown who mistook his patients for Guniea pigs and was sentenced to a mere six months in jail on two counts of culpable homicide; and the light sentencing of three mercenaries who were arrested at Harare International airport in 1997.
Other milestones in the justice delivery system include gender equality which is also enshrined in the constitution which states that judicial appointments should reflect the “gender composition of Zimbabwe”.
At the Supreme Court there are 10 judges — five female and five male.
At the High Court, the 30 judges comprise of 19 males and 11 females while at the Labour Court there are eight females and four males.
Of these 52 judges, males and females enjoy near parity.
The establishment of the Constitutional Court and the separation of the offices of Attorney General and the office of the National Prosecuting Authority is one of the latest developments in the sector.
Meanwhile, there are three law schools in the country, churning out mostly black students.
The Constitution that was passed by Government safeguards judicial independence.
Section 164 of the Constitution states that the independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance and therefore neither the state nor any government agency or person may interfere in the court.
The State is enjoined by the constitution to, through legislative and other measures, assist and protect the courts to ensure their independence, impartiality and effectiveness.
An order or decision of a court binds the State and all persons and governmental institutions and must be obeyed by them.