Every man must have one. Most men have at least one- a teenage heart-throbe. There is a girl you really loved. She was the embodiment of serene Nubian beauty. She had a full body, pure white teeth and a smile to go with it. No matter how hard you tried to ensnare her, she had no time or concern for your attentions. That girl was your teenage image of the mother of your children.
If yours lived in your neighbourhood, endless trips past their house were the norm. If you went to the same school and were in the same class, you may have done many home works for her, tried to teach her Shakespeare or even the matrices, hoping than your brain would ensnare the beauty. All efforts would come to nought. If you went to the same church and were Catholic, your petitions in Mass included her. If she was in the choir, her mellifulous voice was all you heard endlessly.
But like all teenage heart-throbes, we waited, they did not care a hoot about us. We were heart broken. Years later, they seem to appear from nowhere having traversed the world. They now look dilapidated, like the forlon grave of a harlot. Unkempt, uncared for and somewhat victims of beauty's own inflation. More quantity yet less in value.
I will not mention the three kids with different totems.
Forgive the reference to prostitution. When I am 84, I do not want to spend my birthday telling school children about prostitution. What happened to 84 year olds forgetting when they were born?
In the mid 1980s, possibly in 1986, I was the lead altar boy at the funeral of one of Zimbabwe's greatest Shona poets, J.C. Kumbirai. He was buried at Driefontein Mission in Mvuma. I recall that one literary luminary, possibly T.K. Tsodzo of the Pafunge fame. (someone must a make a movie of this book!), read what was said to be his last poem written in long hand. It must have been about the sun.
Before that day, I suspected that the only poem by the same poet I had read was one that encouraged us to go to school as the new economy did not have cattle. I may be wrong, but like a preacher I will not let facts stand in the way of a good sermon. I resolved that I would put some effort into finding the works of this men showered the greatest eulogies by each speaker at the funeral.
When I first read a collection of Shona poems entitled Mabumira eNhetembo, a found a good collection of his works included. One poem that took my heart was the one called, “Ndingati Uri Munhu Mwanangu”. I
n later life, I stumbled upon a poem by Rudyard Kipling called “If”. I was struck by the similarity between the two poems and I hastily concluded that Mr Kipling had plagiarised from my hero. A bit of biographical research revealed that Mr Kipling had died in 1910, unlike my hero who died in 1986. They are actually separated by a Hailey's comet which appeared in the years of their deaths. It only appears once in 76 years!
Rudyard Kipling says in the last stanza of his poem:
“If you can talk with crowds and keep your virtue,
Or walk with kings - nor lose the common touch;
If neither foes nor loving friends can hurt you;
If all men count with you, but none too much;
If you can fill the unforgiving minute
With sixty seconds' worth of distance run -
Yours is the Earth and everything that's in it,
And - which is more - you'll be a Man my son!”
Students of history and poetry will tell you, that these two great poets separated in death by the Hailey's comet, wrote about the same country that is Zimbabwe. Kipling's poem was about Dr Leander Starr Jameson and his ill-fated 500-men raid of the Transvaal of 1895. The raid precipitated the Anglo-Boer War from 1899 to 1902. Some quiet diplomacy from Salisbury, I guess!
JC Kumbirai was giving the unfailing lesson that each parent must give their child.
When Jameson left to make the disastrous raid, he crossed paths with a telegraph sent to him by Cecil John Rhodes from the Cape. The telegraph simply stated,
“Read Luke 14 verse 31”. He might as well have recommended the entire chapter.
Jameson never did. For those without Bibles this relates to Jesus's teaching about the cost of being a disciple. The verse says:
“Or suppose a king is about to go to war against another king. Will he not first sit down and consider whether he is able with ten thousand men to oppose the one coming against him with twenty thousand?”
My own heart-throbe married a rich polygamist who as expected, pre-deceased her. Simba Makoni was my heart-throbe. I tried to woo him but he would not have my attentions. He now turns up with excess baggage like Ibbo Mandaza and Major Mbudzi. My heart has moved on.
I accept in my heart that Simba Makoni maybe the best President Zimbabwe will never have. In the same way Jairos Jiri is the best Minister of Social Welfare we never had. In the same way that Amai Rwizi (Susan Chenjerai of the Mukadota Family show) is the best First Lady and Mother of the Nation we will never have. Imagine Mai Rwizi saying, “vanhu vangu”!
In J.C. Kumbirai's poem, he states in the last stanza;
“ Handi nyore kutsika mumvura ukasanyorova,
Kana kupinda muno utsi ukasakachidzwa.
Handi nyore kuzembera unye hukasambokuvava,
Kana kutsika chiva chigorega kukuruma.
Ukazvigona ndingati uri munhu mwanangu.”
When I am 84, I will sit by the fire and read poems to schoolchildren. And JC Kumbirai will be top of the list. At that age prostitution is not a recommended topic.
Wednesday, April 16, 2008
Saluting our betters
I have not the least difficulty in addressing a male judge as “my Lord” as is the custom even though I learnt in my Catechism class that I have one God. I have no difficulty in addressing a female judge as “my Lady” even though I am married. Of course, it increases my motivation to so address her if she is good looking. Sadly beauty and sharp legal minds rarely coincide in female judges.
I have on numerous occasions saluted magistrates as “my Worship” even though I do not worship them. I bow every time I enter or exit courts in session in the same way I do in church. But the latter is born out of solemnity and reverence, while the former is mere politeness and custom.
Old men and women have no difficulty in my church in referring to a young priest, old enough to be their great grandson, as “Father”. In the same way, I have no difficulty in referring to a judge as “Mr. Justice” as he is busy dishing out injustices. Lawyers call each other “learned friends” in court even as the other is making the most nonsensical of arguments. I have no difficulty in addressing a Member of Parliament as “the Honourable” even though he may be Jonathan Moyo or on his way to jail.
I presume junior soldiers have no difficulty in saluting their superiors, generals or less, even as the juniors under their breath suppress their indignation. Napoleon Bonaparte, a great general like no other, had soldiers saluting him even though he himself quacked with fear on the appearance of his own wife, ironically named Josephine.
It is all done out of politeness imposed by custom. In some professions like in the army the practice is encouraged by the threat of punishment.
The trouble starts when the person so addressed or saluted takes this too seriously.
It was therefore with consternation that I learnt of the threat by “service” chiefs General Chiwenga, the inappropriately named Major General Paradzayi Zimhondi and lately Augustine Chihuri, to withhold their salutes from Morgen Tsvangirai or Simba Makoni should either of them win the presidential election. I presume they have no difficulty in saluting Langton “Huckabee” Towungana the other challenger, should he win.
The two men are saluted by countless others because of the title they wear rather than for their subjective desirability. If we only used the title “His Excellency” in reference to those who are really excellent, how would we address our President? His Holiness, Pope Benedict the 16th is still a sinner like me, a simple parishioner.
I advise Tsvangirai and Makoni that if one of them wins both the voting and the counting, the winner should take a bowl of warm water, the most fragrant soap and a piece of cloth and wash the feet of the three men. After which you must salute them.
Soldiers On High
In April 1985, my Uncle kindly took us to the Zimbabwe International Trade Fair in Bulawayo, which was a great show back then. After we got tired of touring the stands, watching the tug-of-war matches, we begged him to take us to the Luna Park. I recall walking past the Lever Brothers' stand where hundreds of people were receiving free hampers of soap, toothpaste, cooking oil, lotions, and hair care products and so on.
The Surf Pick-a-box show was in its element, well hosted by Kembo, the comedian of the Mukadota Family fame. Next to this stand was the Army exhibition stand. Many visitors were busy riding tanks and curiously inspecting the weaponry on display. Smartly dressed soldiers were all too keen to share their knowledge.
Somehow, a country that has known violence has a fixation with all things military.
Down the road on the right was the famous Gora Tavern. The sweet smell of roasted meat and intestines filled the air as much as the high decibel chorus of drunken noise emanating from the drinking place. Ebony Sheik must have been playing in there too.
When we got to the Luna Park, the area was full of people waiting to get their chance to ride the machines. My brother and I chose to ride the “Jets”. After a while we got the tickets and joined the long queue winding around the jets barricade fence anxious for our turn to arrive.
Suddenly, a tall dark man appeared and jumped to the front of the queue. He was obviously drunk and in army uniform. No one dared challenge him. He quickly jumped on the next trip his blood-shot eyes unashamed. His jet, like others, took to the skies immediately. The queue inched forward.
Suddenly, we all felt a heavy shower raining on our heads. Everyone scurried for cover. Like a Kintyre Estates sprinkler of old, the man sprayed all of us with traditional beer vomit with delicate uniformity and military precision.
When the three minute trip was over, the jets came down. The man sauntered out of the dirty jet, and made for the exit. He did not tender any apology. Someone in the queue shouted in Ndebele, “khithika mkaza idibha likhatshana!”
[Translation: hurry up tick, the dip-tank is a long way from here]
He did not look back. He may be an officer now and getting saluted by others.
My Grandmother
Coincidentally, on 29th March, it will be 20 years since my grandmother passed away at Gutu Mission Hospital. She was a victim of an attack by a dog with rabies. She was born Rungai Muzenda but for most of her adult life was known as VaChipembere due to her rhino-like temperament. She loved her traditional brew and used to brew it very well. I hated weeding her rapoko fields as I could not tell the difference between the shawi weed and the rapoko. But I liked the brew. In Gutu grandmothers rear children on beer, sometimes!
My grandmother had no habit of riding Luna Park jets when inebriated. No. She just loved to sing. We would hear her sing loudly from hundreds of metres away as she approached her homestead at sunset from one of her drinking trips in the village. We would join in from the smoky thatch kitchen as she sang;
“Chidhanana chera mwena, chera mwena
Chidhanana!
Chera mwena, nguva yakwana
Chidhanana!”
On good days a drum would be added to the merriment with telling ferocity.
I hope as I remember her on the 29th, I will sing her favourite song, Chidhanana! She can only hope that her watch will stay safe from drunken soldiers and dogs with rabies. And of course, that I have now learnt to tell a weed from the rapoko!
PS. If you should know, the police officer who took down the Union Jack, folded it neatly and handed it to Prince Charles, and hoisted the Zimbabwe flag on that Independence night in 1980 was a mere superintendent in the police. He spent most of the night watching Bob Marley very closely as he had promised to arrest him should he smoke weed at the show. Lt. General Peter Walls, the Rhodesian Army chief, was probably at the KG VI mess enjoying a beer and kudu biltong.
Tererai Mafukidze is a lawyer. He lives in Johannesburg. He can be contacted on tereraim@gmail.com.
I have on numerous occasions saluted magistrates as “my Worship” even though I do not worship them. I bow every time I enter or exit courts in session in the same way I do in church. But the latter is born out of solemnity and reverence, while the former is mere politeness and custom.
Old men and women have no difficulty in my church in referring to a young priest, old enough to be their great grandson, as “Father”. In the same way, I have no difficulty in referring to a judge as “Mr. Justice” as he is busy dishing out injustices. Lawyers call each other “learned friends” in court even as the other is making the most nonsensical of arguments. I have no difficulty in addressing a Member of Parliament as “the Honourable” even though he may be Jonathan Moyo or on his way to jail.
I presume junior soldiers have no difficulty in saluting their superiors, generals or less, even as the juniors under their breath suppress their indignation. Napoleon Bonaparte, a great general like no other, had soldiers saluting him even though he himself quacked with fear on the appearance of his own wife, ironically named Josephine.
It is all done out of politeness imposed by custom. In some professions like in the army the practice is encouraged by the threat of punishment.
The trouble starts when the person so addressed or saluted takes this too seriously.
It was therefore with consternation that I learnt of the threat by “service” chiefs General Chiwenga, the inappropriately named Major General Paradzayi Zimhondi and lately Augustine Chihuri, to withhold their salutes from Morgen Tsvangirai or Simba Makoni should either of them win the presidential election. I presume they have no difficulty in saluting Langton “Huckabee” Towungana the other challenger, should he win.
The two men are saluted by countless others because of the title they wear rather than for their subjective desirability. If we only used the title “His Excellency” in reference to those who are really excellent, how would we address our President? His Holiness, Pope Benedict the 16th is still a sinner like me, a simple parishioner.
I advise Tsvangirai and Makoni that if one of them wins both the voting and the counting, the winner should take a bowl of warm water, the most fragrant soap and a piece of cloth and wash the feet of the three men. After which you must salute them.
Soldiers On High
In April 1985, my Uncle kindly took us to the Zimbabwe International Trade Fair in Bulawayo, which was a great show back then. After we got tired of touring the stands, watching the tug-of-war matches, we begged him to take us to the Luna Park. I recall walking past the Lever Brothers' stand where hundreds of people were receiving free hampers of soap, toothpaste, cooking oil, lotions, and hair care products and so on.
The Surf Pick-a-box show was in its element, well hosted by Kembo, the comedian of the Mukadota Family fame. Next to this stand was the Army exhibition stand. Many visitors were busy riding tanks and curiously inspecting the weaponry on display. Smartly dressed soldiers were all too keen to share their knowledge.
Somehow, a country that has known violence has a fixation with all things military.
Down the road on the right was the famous Gora Tavern. The sweet smell of roasted meat and intestines filled the air as much as the high decibel chorus of drunken noise emanating from the drinking place. Ebony Sheik must have been playing in there too.
When we got to the Luna Park, the area was full of people waiting to get their chance to ride the machines. My brother and I chose to ride the “Jets”. After a while we got the tickets and joined the long queue winding around the jets barricade fence anxious for our turn to arrive.
Suddenly, a tall dark man appeared and jumped to the front of the queue. He was obviously drunk and in army uniform. No one dared challenge him. He quickly jumped on the next trip his blood-shot eyes unashamed. His jet, like others, took to the skies immediately. The queue inched forward.
Suddenly, we all felt a heavy shower raining on our heads. Everyone scurried for cover. Like a Kintyre Estates sprinkler of old, the man sprayed all of us with traditional beer vomit with delicate uniformity and military precision.
When the three minute trip was over, the jets came down. The man sauntered out of the dirty jet, and made for the exit. He did not tender any apology. Someone in the queue shouted in Ndebele, “khithika mkaza idibha likhatshana!”
[Translation: hurry up tick, the dip-tank is a long way from here]
He did not look back. He may be an officer now and getting saluted by others.
My Grandmother
Coincidentally, on 29th March, it will be 20 years since my grandmother passed away at Gutu Mission Hospital. She was a victim of an attack by a dog with rabies. She was born Rungai Muzenda but for most of her adult life was known as VaChipembere due to her rhino-like temperament. She loved her traditional brew and used to brew it very well. I hated weeding her rapoko fields as I could not tell the difference between the shawi weed and the rapoko. But I liked the brew. In Gutu grandmothers rear children on beer, sometimes!
My grandmother had no habit of riding Luna Park jets when inebriated. No. She just loved to sing. We would hear her sing loudly from hundreds of metres away as she approached her homestead at sunset from one of her drinking trips in the village. We would join in from the smoky thatch kitchen as she sang;
“Chidhanana chera mwena, chera mwena
Chidhanana!
Chera mwena, nguva yakwana
Chidhanana!”
On good days a drum would be added to the merriment with telling ferocity.
I hope as I remember her on the 29th, I will sing her favourite song, Chidhanana! She can only hope that her watch will stay safe from drunken soldiers and dogs with rabies. And of course, that I have now learnt to tell a weed from the rapoko!
PS. If you should know, the police officer who took down the Union Jack, folded it neatly and handed it to Prince Charles, and hoisted the Zimbabwe flag on that Independence night in 1980 was a mere superintendent in the police. He spent most of the night watching Bob Marley very closely as he had promised to arrest him should he smoke weed at the show. Lt. General Peter Walls, the Rhodesian Army chief, was probably at the KG VI mess enjoying a beer and kudu biltong.
Tererai Mafukidze is a lawyer. He lives in Johannesburg. He can be contacted on tereraim@gmail.com.
Wednesday, February 13, 2008
Justice Patel Must Resign Judicial Office
HAS JUSTICE PATEL RESIGNED HIS JUDICIAL OFFICE?
By Tererai Mafukidze
The recent announcement that Justice Bharat Patel had been appointed the Acting Attorney General of Zimbabwe has raised serious concerns about judicial appointments, judicial independence and the separation of powers in general. These concerns arise if he has not or did not on acceptance of the appointment resign from his position as Judge of the High Court.
It is as well settled that a sitting judge cannot be an Attorney General, albeit an acting one, as it is that it is impossible for an Attorney General to be appointed an Acting Judge. The offices are mutually exclusive.
The AG is the “principal legal adviser to Government”. He is an ex-officio member of Cabinet and Parliament though he lacks voting powers in both. He is also the chief Prosecutor who institutes and undertakes criminal proceedings before any court on behalf of the state. He can order the Police to investigate any matter he believes may involve criminal conduct.
Whenever the AG is unable to discharge his functions, as in the case of Mr. Sobhuza Gula-Ndebele, a/the Deputy Attorney General will be designated by the President to act in his place. At the time the AG was suspended, there was no Deputy Attorney General in office. Three have recently been appointed subsequent to the appointment of Justice Patel. I will not debate whether the President has power to appoint an Acting AG outside the offices of Deputy Attorneys General. That is another matter.
Judges are appointed to adjudicate disputes and other matters associated with judicial work. They are there to settle disputes between private citizens, between state and citizens. They are not government agents and cannot in their discharge of functions be under the direction of any persons.
In taking the Judicial Oath in terms of the Constitution, the Judge undertakes that he or she “will do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”. In the Cabinet Oath taken recently by Justice Patel as the Acting Attorney General he undertakes “to freely give (my) counsel and advice to the President of Zimbabwe for the good management of the public affairs of Zimbabwe”. The differences in oaths is not fortuitous. Cabinet members are not expected to act like judges. Political office requires less virtue!
Judges have been appointed in Zimbabwe to head commissions of inquiry which is not essential judicial work. Such appointments are generally accepted because they are simply asked to inquire and report. Even in this instance, the appointments must be made in the few and select cases where their skill as judges to “dissect and analyse evidence, appraise witnesses, exercise a fair and balanced judgment, write a clear and coherent report” are important.
The conduct of some war veterans during the Inquiry into the War Victims Compensation Fund showed clearly the undesirability of using judges. The sight of war veterans behaving riotously in a court room in front of then Judge President Chidyausiku was a big slight on his judicial personage and an affront to the decency expected of proceedings before a judge.
Restrictions on Judges Extra-Judicial Activities
In modern jurisdictions a judge cannot accept appointment to another public office if the duties of the judicial office and the other public office “cannot be faithfully and impartially discharged by the same person”. Further, a judge cannot accept the position if it is incompatible “with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power”
As an Australian court put it;
incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of judicial functions by the judge is not practicable.
It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions is compromised or impaired.
Or might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”
With respect, the appointment of a sitting judge to the office of Acting Attorney General cannot pass any of the aforesaid test factors. It is quite obvious that in the discharge of his mandate as AG, the judge is not solely dealing with law but with matters that are partial to the State and political. His membership of Parliament and Cabinet exposes him to the vagaries of politics which in turn make him unsuitable to remain in judicial office where the demands of his office are different and sacrosanct.
In his discharge of his mandate other than the power to prosecute and investigate, he is subject to the direction from the Executive. He is not free from political influence and there is a realistic prospect of him exercising political discretion. The work to be done is “an integral part of, or closely connected with functions of the legislature or the Executive Government”.
Public confidence in the Judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, “a judge should be a political eunuch.” If he was a member of a political party he must cease to be one on appointment. Subsequently, he must do nothing which could give rise to any suggestion of political partisanship. The Burgh House Principles on The Independence of International Judiciary set out the same requirements.
There is persuasive guidance from the Supreme Court of India which had occasion in 2002 to deal with a similar matter. The court noted that a Judge assigned an executive office could not have the right to revert to the Bench. Judges would have the right to revert to their positions on the Bench if say they have been appointed to head commissions of inquiry. Where judges have taken up executive offices, they must lose the right to reversion. Any subsequent return to the Bench should start with the usual appointment procedures. Unless we guard against these practices, what would stop the Executive from appointing a sitting judge as the Acting Commissioner of Police, Acting Minister of Security, etc?
The Indian Supreme Court further emphasised that; “Independence and impartiality are two basic attributes essential for a proper discharge of judicial functions. A judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone...He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the two other wings of the State. A Judge of the High Court, therefore, occupies a unique position under the constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
It further emphasised that judicial independence was part of the basic structure of the constitution to secure the rule of law essential for the preservation of a democratic system.
Closer to home, the Lesotho Appeal Court was called upon in 1985 to decide a matter which raised issues similar to the appointment of Justice Patel. The King had appointed a Prosecutor as an Acting Judge of the High Court. The Court ruled that the appointment was inimical to independence of the judiciary. The Prosecutor had to resign his position before he could take up judicial office even in an acting capacity. It further noted that the Courts must be free and self-governing and not dependent upon the authority of another body nor be in a position of subordination or subject to external control. In declaring the appointment unlawful, the Court further noted that the public would not feel confident that the courts were independent of the Executive, even though they might in fact be so independent.
While the Lesotho matter dealt with an exact opposite of what has transpired in Zimbabwe, the principles remain the same. A Judging Prosecutor is as unlawful as a Prosecuting Judge!
Desirability of the Candidate
Justice Patel is a talented lawyer. He served the Attorney General's Office well over many years. He appeared and argued brilliantly in many cases before the superior courts of the country. He has previously been the Deputy Attorney General and acted as Attorney General when Andrew Chigovera left. As an individual, he is probably one of the most deserving of the position.
But the matter is not about desirability. Constitutional incompatibility of his role as a judge and his appointment to act as the Attorney General is the problem.
Justice Patel's sharp mind and judicial skills may well help in bringing some stability to the office of the Attorney General. He may have an independent mind that allows him to handle the challenges in an exceptional manner. He may be desirable in the light of the political drama surrounding the arrest and suspension of Gula-Ndebele. However, his appointment is unconstitutional unless he relinquishes the office of judge of the High court without any right of reversion.
Taking into account the suddenness of the appointment, I doubt whether Justice Patel has not left matters that are partly heard and judgments pending. Is he going to put on his gown and wig and deal with them as a judge, or the parties have to wait until his redeployment as Acting attorney General is over. He may able to write the judgments, but imagine an accused person being convicted in a criminal matter by the Acting Attorney General, who is in fact the Prosecuting Authority? This would appear to violate the elementary principles of natural justice that require clear separation between the prosecuting authority and the Judge.
Any action taken by Justice Patel if he continues to ride both horses faces the real risk of being declared illegal and invalid.
As was stated in the 1989 American case of Mistretta v United States , “[The Judicial Branch's] reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action”.
The constitutional imperative for a sitting judges to not take up posts that conflict with his work is long-established. As the US judge Justice Harlam F. Stone noted in his letter to Newton D. Baker some 80 years ago ;
“It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court”.
Put simply, a Premier League soccer referee can not play for Dynamos FC, even for a temporary period.
Conclusion
I earnestly hope that this embarrassingly untenable incestuous constitutional imbroglio will be immediately brought to an end. The Law Society must, like sister organisations in both India and Lesotho take the necessary legal action to ensure that this is untangled. More than anyone else they understand the danger that this situation poses for constitutionalism, human rights and the rule of law. Constitutional values cannot be sacrificed at the altar of political expediency.
Tererai Mafukidze is a Zimbabwean lawyer. He writes in his individual capacity.
By Tererai Mafukidze
The recent announcement that Justice Bharat Patel had been appointed the Acting Attorney General of Zimbabwe has raised serious concerns about judicial appointments, judicial independence and the separation of powers in general. These concerns arise if he has not or did not on acceptance of the appointment resign from his position as Judge of the High Court.
It is as well settled that a sitting judge cannot be an Attorney General, albeit an acting one, as it is that it is impossible for an Attorney General to be appointed an Acting Judge. The offices are mutually exclusive.
The AG is the “principal legal adviser to Government”. He is an ex-officio member of Cabinet and Parliament though he lacks voting powers in both. He is also the chief Prosecutor who institutes and undertakes criminal proceedings before any court on behalf of the state. He can order the Police to investigate any matter he believes may involve criminal conduct.
Whenever the AG is unable to discharge his functions, as in the case of Mr. Sobhuza Gula-Ndebele, a/the Deputy Attorney General will be designated by the President to act in his place. At the time the AG was suspended, there was no Deputy Attorney General in office. Three have recently been appointed subsequent to the appointment of Justice Patel. I will not debate whether the President has power to appoint an Acting AG outside the offices of Deputy Attorneys General. That is another matter.
Judges are appointed to adjudicate disputes and other matters associated with judicial work. They are there to settle disputes between private citizens, between state and citizens. They are not government agents and cannot in their discharge of functions be under the direction of any persons.
In taking the Judicial Oath in terms of the Constitution, the Judge undertakes that he or she “will do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”. In the Cabinet Oath taken recently by Justice Patel as the Acting Attorney General he undertakes “to freely give (my) counsel and advice to the President of Zimbabwe for the good management of the public affairs of Zimbabwe”. The differences in oaths is not fortuitous. Cabinet members are not expected to act like judges. Political office requires less virtue!
Judges have been appointed in Zimbabwe to head commissions of inquiry which is not essential judicial work. Such appointments are generally accepted because they are simply asked to inquire and report. Even in this instance, the appointments must be made in the few and select cases where their skill as judges to “dissect and analyse evidence, appraise witnesses, exercise a fair and balanced judgment, write a clear and coherent report” are important.
The conduct of some war veterans during the Inquiry into the War Victims Compensation Fund showed clearly the undesirability of using judges. The sight of war veterans behaving riotously in a court room in front of then Judge President Chidyausiku was a big slight on his judicial personage and an affront to the decency expected of proceedings before a judge.
Restrictions on Judges Extra-Judicial Activities
In modern jurisdictions a judge cannot accept appointment to another public office if the duties of the judicial office and the other public office “cannot be faithfully and impartially discharged by the same person”. Further, a judge cannot accept the position if it is incompatible “with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power”
As an Australian court put it;
incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of judicial functions by the judge is not practicable.
It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions is compromised or impaired.
Or might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”
With respect, the appointment of a sitting judge to the office of Acting Attorney General cannot pass any of the aforesaid test factors. It is quite obvious that in the discharge of his mandate as AG, the judge is not solely dealing with law but with matters that are partial to the State and political. His membership of Parliament and Cabinet exposes him to the vagaries of politics which in turn make him unsuitable to remain in judicial office where the demands of his office are different and sacrosanct.
In his discharge of his mandate other than the power to prosecute and investigate, he is subject to the direction from the Executive. He is not free from political influence and there is a realistic prospect of him exercising political discretion. The work to be done is “an integral part of, or closely connected with functions of the legislature or the Executive Government”.
Public confidence in the Judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, “a judge should be a political eunuch.” If he was a member of a political party he must cease to be one on appointment. Subsequently, he must do nothing which could give rise to any suggestion of political partisanship. The Burgh House Principles on The Independence of International Judiciary set out the same requirements.
There is persuasive guidance from the Supreme Court of India which had occasion in 2002 to deal with a similar matter. The court noted that a Judge assigned an executive office could not have the right to revert to the Bench. Judges would have the right to revert to their positions on the Bench if say they have been appointed to head commissions of inquiry. Where judges have taken up executive offices, they must lose the right to reversion. Any subsequent return to the Bench should start with the usual appointment procedures. Unless we guard against these practices, what would stop the Executive from appointing a sitting judge as the Acting Commissioner of Police, Acting Minister of Security, etc?
The Indian Supreme Court further emphasised that; “Independence and impartiality are two basic attributes essential for a proper discharge of judicial functions. A judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone...He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the two other wings of the State. A Judge of the High Court, therefore, occupies a unique position under the constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
It further emphasised that judicial independence was part of the basic structure of the constitution to secure the rule of law essential for the preservation of a democratic system.
Closer to home, the Lesotho Appeal Court was called upon in 1985 to decide a matter which raised issues similar to the appointment of Justice Patel. The King had appointed a Prosecutor as an Acting Judge of the High Court. The Court ruled that the appointment was inimical to independence of the judiciary. The Prosecutor had to resign his position before he could take up judicial office even in an acting capacity. It further noted that the Courts must be free and self-governing and not dependent upon the authority of another body nor be in a position of subordination or subject to external control. In declaring the appointment unlawful, the Court further noted that the public would not feel confident that the courts were independent of the Executive, even though they might in fact be so independent.
While the Lesotho matter dealt with an exact opposite of what has transpired in Zimbabwe, the principles remain the same. A Judging Prosecutor is as unlawful as a Prosecuting Judge!
Desirability of the Candidate
Justice Patel is a talented lawyer. He served the Attorney General's Office well over many years. He appeared and argued brilliantly in many cases before the superior courts of the country. He has previously been the Deputy Attorney General and acted as Attorney General when Andrew Chigovera left. As an individual, he is probably one of the most deserving of the position.
But the matter is not about desirability. Constitutional incompatibility of his role as a judge and his appointment to act as the Attorney General is the problem.
Justice Patel's sharp mind and judicial skills may well help in bringing some stability to the office of the Attorney General. He may have an independent mind that allows him to handle the challenges in an exceptional manner. He may be desirable in the light of the political drama surrounding the arrest and suspension of Gula-Ndebele. However, his appointment is unconstitutional unless he relinquishes the office of judge of the High court without any right of reversion.
Taking into account the suddenness of the appointment, I doubt whether Justice Patel has not left matters that are partly heard and judgments pending. Is he going to put on his gown and wig and deal with them as a judge, or the parties have to wait until his redeployment as Acting attorney General is over. He may able to write the judgments, but imagine an accused person being convicted in a criminal matter by the Acting Attorney General, who is in fact the Prosecuting Authority? This would appear to violate the elementary principles of natural justice that require clear separation between the prosecuting authority and the Judge.
Any action taken by Justice Patel if he continues to ride both horses faces the real risk of being declared illegal and invalid.
As was stated in the 1989 American case of Mistretta v United States , “[The Judicial Branch's] reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action”.
The constitutional imperative for a sitting judges to not take up posts that conflict with his work is long-established. As the US judge Justice Harlam F. Stone noted in his letter to Newton D. Baker some 80 years ago ;
“It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court”.
Put simply, a Premier League soccer referee can not play for Dynamos FC, even for a temporary period.
Conclusion
I earnestly hope that this embarrassingly untenable incestuous constitutional imbroglio will be immediately brought to an end. The Law Society must, like sister organisations in both India and Lesotho take the necessary legal action to ensure that this is untangled. More than anyone else they understand the danger that this situation poses for constitutionalism, human rights and the rule of law. Constitutional values cannot be sacrificed at the altar of political expediency.
Tererai Mafukidze is a Zimbabwean lawyer. He writes in his individual capacity.
Monday, January 14, 2008
forgotten by Justice...On remand for 50 years!
Sri Lankan man spends 50 years on remand
Colombo, Sri Lanka
14 January 2008 06:53
A Sri Lankan man has been released from prison after spending 50 years on remand, his lawyer said on Monday.
DP James, now 80, was arrested in August 1958 for attacking and wounding his father with a knife.
He was sent to jail, then moved to a psychiatric hospital, and then discharged back to jail -- where he was forgotten about.
Lawyer Dharmavijaya Seneviratne said James, who was never put on trial, was a victim of prison bureaucracy.
"James went to jail when he was 30. He has been robbed of his youth and is now a grey-haired man of 80 with failing eyesight," lawyer Dharmavijaya Seneviratne said.
The prisoner was only noticed last month after he fell ill and was hospitalised in Colombo, forcing prison authorities to go through his paperwork.
The lawyer said James, originally from the small village of Ibbagamuwa, about 100km from Colombo, did not complain about his long-running detention because he was ignorant of the law.
A local court released him last week on bail, and apologised for the "rare, pathetic incident", a court official said.
The lawyer said compensation was now being sought.
"We are preparing the papers to file a case seeking compensation for 1,5-million rupees ($14 000) and use the money to pay for his medical and other welfare bills," Seneviratne said.
The sum amounts to $280 for each year spent behind bars. - AFP
Colombo, Sri Lanka
14 January 2008 06:53
A Sri Lankan man has been released from prison after spending 50 years on remand, his lawyer said on Monday.
DP James, now 80, was arrested in August 1958 for attacking and wounding his father with a knife.
He was sent to jail, then moved to a psychiatric hospital, and then discharged back to jail -- where he was forgotten about.
Lawyer Dharmavijaya Seneviratne said James, who was never put on trial, was a victim of prison bureaucracy.
"James went to jail when he was 30. He has been robbed of his youth and is now a grey-haired man of 80 with failing eyesight," lawyer Dharmavijaya Seneviratne said.
The prisoner was only noticed last month after he fell ill and was hospitalised in Colombo, forcing prison authorities to go through his paperwork.
The lawyer said James, originally from the small village of Ibbagamuwa, about 100km from Colombo, did not complain about his long-running detention because he was ignorant of the law.
A local court released him last week on bail, and apologised for the "rare, pathetic incident", a court official said.
The lawyer said compensation was now being sought.
"We are preparing the papers to file a case seeking compensation for 1,5-million rupees ($14 000) and use the money to pay for his medical and other welfare bills," Seneviratne said.
The sum amounts to $280 for each year spent behind bars. - AFP
Justice Patel Must Resign Judicial Office
HAS JUSTICE PATEL RESIGNED HIS JUDICIAL OFFICE?
By Tererai Mafukidze
The recent announcement that Justice Bharat Patel had been appointed the Acting Attorney General of Zimbabwe has raised serious concerns about judicial appointments, judicial independence and the separation of powers in general. These concerns arise if he has not or did not on acceptance of the appointment resign from his position as Judge of the High Court.
It is as well settled that a sitting judge cannot be an Attorney General, albeit an acting one, as it is that it is impossible for an Attorney General to be appointed an Acting Judge. The offices are mutually exclusive.
The AG is the “principal legal adviser to Government”. He is an ex-officio member of Cabinet and Parliament though he lacks voting powers in both. He is also the chief Prosecutor who institutes and undertakes criminal proceedings before any court on behalf of the state. He can order the Police to investigate any matter he believes may involve criminal conduct.
Whenever the AG is unable to discharge his functions, as in the case of Mr. Sobhuza Gula-Ndebele, a/the Deputy Attorney General will be designated by the President to act in his place. At the time the AG was suspended, there was no Deputy Attorney General in office. Three have recently been appointed subsequent to the appointment of Justice Patel. I will not debate whether the President has power to appoint an Acting AG outside the offices of Deputy Attorneys General. That is another matter.
The AG's terms and conditions of office, including salary and allowances are set by the President, while the salary and allowances of judges are set by Parliament through a law. The system adopted for the payment of judges' salaries and benefits is meant to enhance their independence, particularly, from the executive branch of government. It ensures that our judges are not beholden to any person. By accepting this appointment, Justice Patel has put himself in danger of being beholden to the Executive. Such control of a judicial officer contravenes the independence of the judiciary as enshrined in the Constitution.
Judges are appointed to adjudicate disputes and other matters associated with judicial work. They are there to settle disputes between private citizens, between state and citizens. They are not government agents and cannot in their discharge of functions be under the direction of any persons.
In taking the Judicial Oath in terms of the Constitution, the Judge undertakes that he or she “will do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”. In the Cabinet Oath taken recently by Justice Patel as the Acting Attorney General he undertakes “to freely give (my) counsel and advice to the President of Zimbabwe for the good management of the public affairs of Zimbabwe”. The differences in oaths is not fortuitous. Cabinet members are not expected to act like judges. Political office requires less virtue!
Judges have been appointed in Zimbabwe to head commissions of inquiry which is not essential judicial work. Such appointments are generally accepted because they are simply asked to inquire and report. Even in this instance, the appointments must be made in the few and select cases where their skill as judges to “dissect and analyse evidence, appraise witnesses, exercise a fair and balanced judgment, write a clear and coherent report” are important.
The conduct of some war veterans during the Inquiry into the War Victims Compensation Fund showed clearly the undesirability of using judges. The sight of war veterans behaving riotously in a court room in front of then Judge President Chidyausiku was a big slight on his judicial personage and an affront to the decency expected of proceedings before a judge.
Restrictions on Judges Extra-Judicial Activities
In modern jurisdictions a judge cannot accept appointment to another public office if the duties of the judicial office and the other public office “cannot be faithfully and impartially discharged by the same person”. Further, a judge cannot accept the position if it is incompatible “with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power”
As an Australian court put it;
incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of judicial functions by the judge is not practicable.
It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions is compromised or impaired.
Or might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”
With respect, the appointment of a sitting judge to the office of Acting Attorney General cannot pass any of the aforesaid test factors. It is quite obvious that in the discharge of his mandate as AG, the judge is not solely dealing with law but with matters that are partial to the State and political. His membership of Parliament and Cabinet exposes him to the vagaries of politics which in turn make him unsuitable to remain in judicial office where the demands of his office are different and sacrosanct.
In his discharge of his mandate other than the power to prosecute and investigate, he is subject to the direction from the Executive. He is not free from political influence and there is a realistic prospect of him exercising political discretion. The work to be done is “an integral part of, or closely connected with functions of the legislature or the Executive Government”.
Public confidence in the Judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, “a judge should be a political eunuch.” If he was a member of a political party he must cease to be one on appointment. Subsequently, he must do nothing which could give rise to any suggestion of political partisanship. The Burgh House Principles on The Independence of International Judiciary set out the same requirements.
There is persuasive guidance from the Supreme Court of India which had occasion in 2002 to deal with a similar matter. The court noted that a Judge assigned an executive office could not have the right to revert to the Bench. Judges would have the right to revert to their positions on the Bench if say they have been appointed to head commissions of inquiry. Where judges have taken up executive offices, they must lose the right to reversion. Any subsequent return to the Bench should start with the usual appointment procedures. Unless we guard against these practices, what would stop the Executive from appointing a sitting judge as the Acting Commissioner of Police, Acting Minister of Security, etc?
The Indian Supreme Court further emphasised that; “Independence and impartiality are two basic attributes essential for a proper discharge of judicial functions. A judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone...He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the two other wings of the State. A Judge of the High Court, therefore, occupies a unique position under the constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
It further emphasised that judicial independence was part of the basic structure of the constitution to secure the rule of law essential for the preservation of a democratic system.
Closer to home, the Lesotho Appeal Court was called upon in 1985 to decide a matter which raised issues similar to the appointment of Justice Patel. The King had appointed a Prosecutor as an Acting Judge of the High Court. The Court ruled that the appointment was inimical to independence of the judiciary. The Prosecutor had to resign his position before he could take up judicial office even in an acting capacity. It further noted that the Courts must be free and self-governing and not dependent upon the authority of another body nor be in a position of subordination or subject to external control. In declaring the appointment unlawful, the Court further noted that the public would not feel confident that the courts were independent of the Executive, even though they might in fact be so independent.
While the Lesotho matter dealt with an exact opposite of what has transpired in Zimbabwe, the principles remain the same. A Judging Prosecutor is as unlawful as a Prosecuting Judge!
Desirability of the Candidate
Justice Patel is a talented lawyer. He served the Attorney General's Office well over many years. He appeared and argued brilliantly in many cases before the superior courts of the country. He has previously been the Deputy Attorney General and acted as Attorney General when Andrew Chigovera left. As an individual, he is probably one of the most deserving of the position.
But the matter is not about desirability. Constitutional incompatibility of his role as a judge and his appointment to act as the Attorney General is the problem.
Justice Patel's sharp mind and judicial skills may well help in bringing some stability to the office of the Attorney General. He may have an independent mind that allows him to handle the challenges in an exceptional manner. He may be desirable in the light of the political drama surrounding the arrest and suspension of Gula-Ndebele. However, his appointment is unconstitutional unless he relinquishes the office of judge of the High court without any right of reversion.
Taking into account the suddenness of the appointment, I doubt whether Justice Patel has not left matters that are partly heard and judgments pending. Is he going to put on his gown and wig and deal with them as a judge, or the parties have to wait until his redeployment as Acting attorney General is over. He may able to write the judgments, but imagine an accused person being convicted in a criminal matter by the Acting Attorney General, who is in fact the Prosecuting Authority? This would appear to violate the elementary principles of natural justice that require clear separation between the prosecuting authority and the Judge.
Any action taken by Justice Patel if he continues to ride both horses faces the real risk of being declared illegal and invalid.
As was stated in the 1989 American case of Mistretta v United States, “[The Judicial Branch's] reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action”.
The constitutional imperative for a sitting judges to not take up posts that conflict with his work is long-established. As the US judge Justice Harlam F. Stone noted in his letter to Newton D. Baker some 80 years ago;
“It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court”.
Put simply, a Premier League soccer referee can not play for Dynamos FC, even for a temporary period.
Conclusion
I earnestly hope that this embarrassingly untenable incestuous constitutional imbroglio will be immediately brought to an end. The Law Society must, like sister organisations in both India and Lesotho take the necessary legal action to ensure that this is untangled. More than anyone else they understand the danger that this situation poses for constitutionalism, human rights and the rule of law. Constitutional values cannot be sacrificed at the altar of political expediency.
By Tererai Mafukidze
The recent announcement that Justice Bharat Patel had been appointed the Acting Attorney General of Zimbabwe has raised serious concerns about judicial appointments, judicial independence and the separation of powers in general. These concerns arise if he has not or did not on acceptance of the appointment resign from his position as Judge of the High Court.
It is as well settled that a sitting judge cannot be an Attorney General, albeit an acting one, as it is that it is impossible for an Attorney General to be appointed an Acting Judge. The offices are mutually exclusive.
The AG is the “principal legal adviser to Government”. He is an ex-officio member of Cabinet and Parliament though he lacks voting powers in both. He is also the chief Prosecutor who institutes and undertakes criminal proceedings before any court on behalf of the state. He can order the Police to investigate any matter he believes may involve criminal conduct.
Whenever the AG is unable to discharge his functions, as in the case of Mr. Sobhuza Gula-Ndebele, a/the Deputy Attorney General will be designated by the President to act in his place. At the time the AG was suspended, there was no Deputy Attorney General in office. Three have recently been appointed subsequent to the appointment of Justice Patel. I will not debate whether the President has power to appoint an Acting AG outside the offices of Deputy Attorneys General. That is another matter.
The AG's terms and conditions of office, including salary and allowances are set by the President, while the salary and allowances of judges are set by Parliament through a law. The system adopted for the payment of judges' salaries and benefits is meant to enhance their independence, particularly, from the executive branch of government. It ensures that our judges are not beholden to any person. By accepting this appointment, Justice Patel has put himself in danger of being beholden to the Executive. Such control of a judicial officer contravenes the independence of the judiciary as enshrined in the Constitution.
Judges are appointed to adjudicate disputes and other matters associated with judicial work. They are there to settle disputes between private citizens, between state and citizens. They are not government agents and cannot in their discharge of functions be under the direction of any persons.
In taking the Judicial Oath in terms of the Constitution, the Judge undertakes that he or she “will do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”. In the Cabinet Oath taken recently by Justice Patel as the Acting Attorney General he undertakes “to freely give (my) counsel and advice to the President of Zimbabwe for the good management of the public affairs of Zimbabwe”. The differences in oaths is not fortuitous. Cabinet members are not expected to act like judges. Political office requires less virtue!
Judges have been appointed in Zimbabwe to head commissions of inquiry which is not essential judicial work. Such appointments are generally accepted because they are simply asked to inquire and report. Even in this instance, the appointments must be made in the few and select cases where their skill as judges to “dissect and analyse evidence, appraise witnesses, exercise a fair and balanced judgment, write a clear and coherent report” are important.
The conduct of some war veterans during the Inquiry into the War Victims Compensation Fund showed clearly the undesirability of using judges. The sight of war veterans behaving riotously in a court room in front of then Judge President Chidyausiku was a big slight on his judicial personage and an affront to the decency expected of proceedings before a judge.
Restrictions on Judges Extra-Judicial Activities
In modern jurisdictions a judge cannot accept appointment to another public office if the duties of the judicial office and the other public office “cannot be faithfully and impartially discharged by the same person”. Further, a judge cannot accept the position if it is incompatible “with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power”
As an Australian court put it;
incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of judicial functions by the judge is not practicable.
It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions is compromised or impaired.
Or might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”
With respect, the appointment of a sitting judge to the office of Acting Attorney General cannot pass any of the aforesaid test factors. It is quite obvious that in the discharge of his mandate as AG, the judge is not solely dealing with law but with matters that are partial to the State and political. His membership of Parliament and Cabinet exposes him to the vagaries of politics which in turn make him unsuitable to remain in judicial office where the demands of his office are different and sacrosanct.
In his discharge of his mandate other than the power to prosecute and investigate, he is subject to the direction from the Executive. He is not free from political influence and there is a realistic prospect of him exercising political discretion. The work to be done is “an integral part of, or closely connected with functions of the legislature or the Executive Government”.
Public confidence in the Judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, “a judge should be a political eunuch.” If he was a member of a political party he must cease to be one on appointment. Subsequently, he must do nothing which could give rise to any suggestion of political partisanship. The Burgh House Principles on The Independence of International Judiciary set out the same requirements.
There is persuasive guidance from the Supreme Court of India which had occasion in 2002 to deal with a similar matter. The court noted that a Judge assigned an executive office could not have the right to revert to the Bench. Judges would have the right to revert to their positions on the Bench if say they have been appointed to head commissions of inquiry. Where judges have taken up executive offices, they must lose the right to reversion. Any subsequent return to the Bench should start with the usual appointment procedures. Unless we guard against these practices, what would stop the Executive from appointing a sitting judge as the Acting Commissioner of Police, Acting Minister of Security, etc?
The Indian Supreme Court further emphasised that; “Independence and impartiality are two basic attributes essential for a proper discharge of judicial functions. A judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone...He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the two other wings of the State. A Judge of the High Court, therefore, occupies a unique position under the constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
It further emphasised that judicial independence was part of the basic structure of the constitution to secure the rule of law essential for the preservation of a democratic system.
Closer to home, the Lesotho Appeal Court was called upon in 1985 to decide a matter which raised issues similar to the appointment of Justice Patel. The King had appointed a Prosecutor as an Acting Judge of the High Court. The Court ruled that the appointment was inimical to independence of the judiciary. The Prosecutor had to resign his position before he could take up judicial office even in an acting capacity. It further noted that the Courts must be free and self-governing and not dependent upon the authority of another body nor be in a position of subordination or subject to external control. In declaring the appointment unlawful, the Court further noted that the public would not feel confident that the courts were independent of the Executive, even though they might in fact be so independent.
While the Lesotho matter dealt with an exact opposite of what has transpired in Zimbabwe, the principles remain the same. A Judging Prosecutor is as unlawful as a Prosecuting Judge!
Desirability of the Candidate
Justice Patel is a talented lawyer. He served the Attorney General's Office well over many years. He appeared and argued brilliantly in many cases before the superior courts of the country. He has previously been the Deputy Attorney General and acted as Attorney General when Andrew Chigovera left. As an individual, he is probably one of the most deserving of the position.
But the matter is not about desirability. Constitutional incompatibility of his role as a judge and his appointment to act as the Attorney General is the problem.
Justice Patel's sharp mind and judicial skills may well help in bringing some stability to the office of the Attorney General. He may have an independent mind that allows him to handle the challenges in an exceptional manner. He may be desirable in the light of the political drama surrounding the arrest and suspension of Gula-Ndebele. However, his appointment is unconstitutional unless he relinquishes the office of judge of the High court without any right of reversion.
Taking into account the suddenness of the appointment, I doubt whether Justice Patel has not left matters that are partly heard and judgments pending. Is he going to put on his gown and wig and deal with them as a judge, or the parties have to wait until his redeployment as Acting attorney General is over. He may able to write the judgments, but imagine an accused person being convicted in a criminal matter by the Acting Attorney General, who is in fact the Prosecuting Authority? This would appear to violate the elementary principles of natural justice that require clear separation between the prosecuting authority and the Judge.
Any action taken by Justice Patel if he continues to ride both horses faces the real risk of being declared illegal and invalid.
As was stated in the 1989 American case of Mistretta v United States, “[The Judicial Branch's] reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action”.
The constitutional imperative for a sitting judges to not take up posts that conflict with his work is long-established. As the US judge Justice Harlam F. Stone noted in his letter to Newton D. Baker some 80 years ago;
“It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court”.
Put simply, a Premier League soccer referee can not play for Dynamos FC, even for a temporary period.
Conclusion
I earnestly hope that this embarrassingly untenable incestuous constitutional imbroglio will be immediately brought to an end. The Law Society must, like sister organisations in both India and Lesotho take the necessary legal action to ensure that this is untangled. More than anyone else they understand the danger that this situation poses for constitutionalism, human rights and the rule of law. Constitutional values cannot be sacrificed at the altar of political expediency.
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