MUGABE TAKING HIS MORNING-AFTER PILLS
I do not have any intimate knowledge about unnatural contraception. I am Catholic and so we do not plan our children. I always marvel at those who claim to. I cannot imagine sitting down with my wife, with an Agenda for the day’s meeting, a minute taker and the resolutions book. There is certainly a good reason in nature why most animals cannot breed in captivity. Catholics have their point, but do not ask me why I still have two children.
Many women will tell you that if they engage in an activity that may result in them falling pregnant against their will, they rush to the nearest pharmacy presumably on the next morning and purchase the wonder pills named the morning-after. The pills are designed to prevent breams and tiger fish in the Zambezi River’s upstream flow from finding a hospitable valley of fertility. For the medicine to gather and put back the bolting donkeys in the stable, it must be taken within 72 hours of the activity. The pharmacist is ethically required to give some counselling before dispensing them. The woman must be told that this is not a regular contraceptive. Put in another way, it is an “emergency kick-out panel”. The Pope and others consider this murder still.
If you do not take it within the required period, you risk giving birth to a baby or more with clenched fists and a naughty smile. When you undo the clenches, you may find the progeny holding the belated morning-after pills. Like election results posted outside polling stations!
The tragic-comedy that engulfs the Presidential results shows that Mugabe has decided to take his morning-after pills long after the 72 hour period. How else do you explain fraud charges against Binga ZEC officers? Some of the charges according to the state-owned Herald of the 16th April, 2008, allege that they recorded Tsvangirai as having 16 492 votes instead of 16 493, a difference of one vote! It is alleged that they recorded the Zanu PF’s candidate as having 2 794 votes instead of 2 798, a difference of 4 votes. In another instance it is alleged that they gave Langton Towungana, a presidential candidate, 107 votes instead of 111? Can anyone seriously prove any criminal intent to defraud? What happened to innocent counting errors? I thought the law has a rule expressed in Latin as, de minimis non curat lex? This means that the law does not concern itself with trivialities.
What will the morning-after pills achieve now? Mugabe either has to abort the foetus or give birth to an unwanted baby. A rerun will not reverse all the risks that unprotected polling brings. Even a ten thousand generals with freshly imported Chinese ammunition, a supine state press, a marauding militia, comical spokespersons, a lame-duck South African President, designer clothes and 400 motor vehicles driven by medical doctors will not help. A fatal disease may have been contracted.
Liberation movements have shown consistently that they cannot easily change from the autocratic military movements to democratic parties demanded of modern governments. This is why I prophesy that whatever happens, Zanu PF has contracted a disease that will claim its life. Kenneth Kaunda’s UNIP has virtually disappeared in Zambia. It has about 2 seats in the current Parliament. Kaunda will outlive it. Kamuzu Banda’s Malawi Congress Party is dying in Malawi. Jomo Kenyatta and Daniel arap Moi’s KANU is dying in Kenya.
Chama Chama Pinduzi of Tanzania has survived because it has managed to change. When Julius Nyerere threw in the towel on his own terms, Ali Hassan Mwinyi took up the mantle, followed by Benjamin Mkapa and now Julius Kikwete. In Mozambique, they are on their second President since the death of Samora Machel in 1986. On Seretse Khama’s death, Siketumile Masire took over in Botswana. He was succeeded by Festus Mogae. Mogae has just stepped down one and half years before the end of his second term, to allow Iain Khama the chance to prove that he can lead the Tswana.
Zanu PF has no succession plan. Like an old fractured horse, it may need to be put down. Rumours abound amongst its zealots indicate that they want a rerun after taking some contraception. They may dispense with the need for morning-after pills this time. It is said that after some 18 months, someone will take over from Mugabe.
However, they may have already contracted the fatal disease. Like its sister change-resistant liberation movements across the continent, Zanu PF detests democracy, the intelligent and the young. The next crop of “leaders” by age is Bright Matonga, Patrick Zhuwawo and Saviour Kasukuwere. They make me laugh. Not-so-Bright Matonga makes people who watch him on international television news channels laugh at me as a Zimbabwean.
When rumours of alternative candidates to Mugabe were spreading last year, Oppah Zvipange Charm Muchinguri, the Zanu PF’s Women’s League leader, threatened to strip naked if anyone dares challenge Mugabe. She was walloped in the parliamentary elections on March 29. Makoni’s late challenge cost us a strip show. His upmarket Harare underwear business would have benefited from this enterprise. And people say he has business acumen! You would have thought Muchinguri, who witnessed the death of the legendary Josiah Tongogara had learnt some principle. No, it’s all profanity.
In order to defeat the fatal disease, anti-retrovirals may have to be taken by Zanu PF. But with its tendency to postpone bitter medicines, they may be given too late to the patient. By the time Gono buys the foreign currency at Harare’s 4th Street mobile alternative exchange bureaus necessary to import the anti-retrovirals, they may indeed be more dangerous to the body than remedial.
As the dead cockerel Party walks up the banks of the mythical River Styx on its way to Judgment, it may be faced with the true revolutionaries who once doubted Mugabe’s leadership waiting to ask a few questions? “Jonathan who?” “Gideon who?”
Why did we reduce this “glorious revolution to a feudal agrarian enterprise?” “Is this what we fought for?”
Someone will have a sobering thought and say, “Firstly, he should not have polled. And the morning-after pills came too late”. A High Court judge will say it was not an urgent matter.
Any girl will tell you, you do not need morning-after pills if you have behaved responsibly. As the late musician Paul “Dr Love” Matavire put it, majichimbo-chimbo anofara musi wafa kondo ziso! Prey celebrates the demise of its predator.
Happy Independence Day!
Tererai Mafukidze is a Zimbabwean lawyer based in Johannesburg. He can be contacted on tereraim@gmail.com.
Thursday, December 1, 2011
Can a Judge be Acting Attorney General?
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;
l 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.
l 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.
l 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.
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;
l 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.
l 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.
l 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.
When Justice Fails Orphaned Children
When Justice Fails Orphaned Children
Nherera inoguta musi unofa mai vayo, is a well known Shona saying. It means that an orphaned child faces a bleak future from the day it loses its mother. This must have been a heart-rending truism for the orphans of Batsirai Children’s Centre. The case I discuss in this article brings home the failure of our legal system to protect vulnerable children from Justice’s notorious delays!
Anyone who lived in Zimbabwe in 2005 will testify to the human suffering that was endured by many victims of what was named ‘Operation Murambatsvina’. If the inhuman operation was hard on families, imagine its impact on orphaned children relying on charity for their survival? The story of the orphaned children who lived at Batsirai Children’s Care in Hatcliffe is painful to read. It is worse that their attempt to vindicate for themselves some legal rights reveals a very sordid story of how the justice system in Zimbabwe works. It is particularly tragic that the High Court, which in law is the avowed ‘upper guardian of minor children’ is in fact guilty of failing them.
Background
In 2005, the Zimbabwe Lawyers for Human Rights approached the High Court on an urgent basis seeking to restore the staff and orphans to Batsirai Children’s Care, which had been destroyed during Operation Murambatsvina. It also sought to have despicable the Operation declared unlawful; stop the police and municipal police from ejecting them from the centre or destroying the property; and allow them to regain possession of the property. While the matter had been submitted on an urgent basis, it was dealt with as an ordinary application because by the time the application reached court, the property had already been destroyed; the children had, according to the judgment, ‘already been catered for at Caledonia farm’. The other reason provided was that the ‘structure which the applicant sought to re-erect is (was) not only illegal in that it was never approved by the...[City of Harare]...,but inhuman in that it is not fit for the intended use as a children’s home or care center (sic).’
The matter was heard by Justice Ben Hlatshwayo. The application was dismissed by the judge. The tragedy of this story is not simply the familiar suffering of victims of this operation. It is that it has taken 6 years for a judge of the High Court to deliver this judgment. This judgment was handed down on 29th September, 2011. The judge provides the reason for the delay in handing down judgment in a footnote as follows:
‘This judgment was completed and enrolled for handing down on June 21, 2006. However, because of the need to scan the photographs forming the last page of the judgment, there were delays as the High Court does not have the facilities. When the scanning was finally done, the record was misfiled and unfortunately forgotten. The follow-up was only made years later.’
This is no apology. Justice Hlatshwayo was a good teacher of tax law and practice. I am sure he would never have taken an excuse of the quality he gives from any of his students. Why should we take it from him?
Firstly, after reading the judgment one fails to understand why it was so vital for the two pictures- one of children eating outside and the other of children standing in front of a wooden cabin in a maize field- to be attached to the judgment. It is rare for court judgments to contain pictorial illustrations. They are usually reserved for cases involving infringements or passing-off of trademarks, where the picture is used to illustrate similarities or differences. Judges have always been content to describe the facts as they emerge from the evidence or their own observation. In fact, the learned judge aptly describes what he sought to illustrate with two colour pictures in these words on page 4 of the 6-paged judgment. He states:
‘The scanned pictures of the so-called children’s centre are attached at the end of this judgment. It consists of an open maize field with crops on two sides and bare ground in the centre and a wooden cabin at one end. The children sit on the dusty ploughed-up field and consume their rations in this most unhygienic environment. If they (sic) is anything to restore to them, it would be this bare, ploughed-up ground and wooden cabin.’
The fact that the learned judge was able to describe the supposed scene at the care centre should have concluded the matter. Yet according to the judge part of the delay in delivering the judgment was caused by the lack of scanning facilities at the High Court. The fact is it was not necessary to have pictorial representations for purposes of the judgment.
Secondly, if the High Court does not have facilities to scan, was it in the circumstances necessary for the judge to insist on providing the two pictures which are virtually of no aid? Strictly speaking, the photos are not even part of the judgment as they do not appear inside the text. They are mere attachments.
Thirdly, assuming for a moment that the pictures were indeed germane to the issues before him, could another solution have been arrived at seeing that the matter involved vulnerable minor children who are orphans? Was scanning the only suitable way of capturing the images even if the High Court did not have scanning facilities?
Fourth, the disappearance of the file remains to be fully explained. But in truth it is unlikely that the mystery goes beyond the judicial chambers. The judge says that ‘the record was misfiled and unfortunately forgotten.’ By whom, surely it has to be asked? Traditionally, a file in which a judge has prepared his judgment and awaits handing down must be kept under wraps. This is so because the judgment must only be publicly available when the judge is ready to hand it down. For the file to disappear with a ‘draft judgment’ is certainly odd and unacceptable. Many will recall the vicious attack that was directed towards the Supreme Court when a draft judgment circulated to fellow judges was reported in the press. The matter concerned the very emotive case of Dr McGowan. In fact, in most jurisdictions, including our own, serious secrecy procedures are followed with regards to draft judgments.
Fifth, as if to spread the blame, the judge states that the ‘follow-up was only made years later.’ It is not clear who made the follow-up. I presume it was one of the parties or their representatives. Unfortunately, this does not wash. A judge cannot say, it is partly your fault that you did not bother me enough! Would this have saved the file from being ‘misfiled’? For the record, several lawyers have complained to the Law Society about unanswered countless letters to judges enquiring about judgments.
Sixth, the child care centre involved has the right of appeal against the High Court judgment. What purpose would be served now by them appealing against this judgment to the Supreme Court some six years later? Have the children affected by this decision been spared the suffering occasioned by the delay? Can their rights be restored? Can the suffering, psychological, emotional and physical, be compensated if the Supreme Court were to decide otherwise?
Conclusion
This bizarrely delayed judgment has just shone some rare light into the dark corner of judicial poor performance and lack of accountability. We may never know how deep and dark the dungeon is. The Supreme Court has also set a poor example, with judgments outstanding for years in some cases. Lawyers are often reluctant to provide details of judgments that have been outstanding for inordinate periods for fear of upsetting our sometimes imperious judges. But complaints enhance rather than stifle judicial accountability, independence and public confidence. Records from the few lawyers who have had the courage to share reflect a shocking level of delays and neglect that would not be tolerated in any other occupation. Some countries have had to take a firm view of judicial indolence by setting strict standards on judgment delivery. In Kenya and Uganda, a maximum of 90 days is allowed. In India, judgment has to be delivered within 30 days and only in unusual and exceptional circumstances, should it go up to a maximum 60 days. In Guyana, a judge can be constitutionally removed from office for persistently not writing decisions or for continuously failing to give decisions and reasons therefor within the time limit set by parliament. In South Africa, no acting judge will be appointed to a substantive position if they have been guilty of delaying judgment delivery. Neither will a sitting judge be promoted if they are guilty of judicial indolence.
The cost to the society of delayed justice is immeasurable. It results in unnecessary suffering of litigants; poor recollection of evidence and issues; witnesses, lawyers and judges die; delay in the appeal process; loss of income in financial matters; loss of value in compensation cases; disappearance of records and files; deletion of transcription tapes; and a huge social and economic cost. Just delayed is justice denied. It is time for serious action in order to arrest this cancer of indolence.
Fiat justitia ruat caelum- let justice be done though the heavens may fall!
Tererai Mafukidze is a lawyer.
Nherera inoguta musi unofa mai vayo, is a well known Shona saying. It means that an orphaned child faces a bleak future from the day it loses its mother. This must have been a heart-rending truism for the orphans of Batsirai Children’s Centre. The case I discuss in this article brings home the failure of our legal system to protect vulnerable children from Justice’s notorious delays!
Anyone who lived in Zimbabwe in 2005 will testify to the human suffering that was endured by many victims of what was named ‘Operation Murambatsvina’. If the inhuman operation was hard on families, imagine its impact on orphaned children relying on charity for their survival? The story of the orphaned children who lived at Batsirai Children’s Care in Hatcliffe is painful to read. It is worse that their attempt to vindicate for themselves some legal rights reveals a very sordid story of how the justice system in Zimbabwe works. It is particularly tragic that the High Court, which in law is the avowed ‘upper guardian of minor children’ is in fact guilty of failing them.
Background
In 2005, the Zimbabwe Lawyers for Human Rights approached the High Court on an urgent basis seeking to restore the staff and orphans to Batsirai Children’s Care, which had been destroyed during Operation Murambatsvina. It also sought to have despicable the Operation declared unlawful; stop the police and municipal police from ejecting them from the centre or destroying the property; and allow them to regain possession of the property. While the matter had been submitted on an urgent basis, it was dealt with as an ordinary application because by the time the application reached court, the property had already been destroyed; the children had, according to the judgment, ‘already been catered for at Caledonia farm’. The other reason provided was that the ‘structure which the applicant sought to re-erect is (was) not only illegal in that it was never approved by the...[City of Harare]...,but inhuman in that it is not fit for the intended use as a children’s home or care center (sic).’
The matter was heard by Justice Ben Hlatshwayo. The application was dismissed by the judge. The tragedy of this story is not simply the familiar suffering of victims of this operation. It is that it has taken 6 years for a judge of the High Court to deliver this judgment. This judgment was handed down on 29th September, 2011. The judge provides the reason for the delay in handing down judgment in a footnote as follows:
‘This judgment was completed and enrolled for handing down on June 21, 2006. However, because of the need to scan the photographs forming the last page of the judgment, there were delays as the High Court does not have the facilities. When the scanning was finally done, the record was misfiled and unfortunately forgotten. The follow-up was only made years later.’
This is no apology. Justice Hlatshwayo was a good teacher of tax law and practice. I am sure he would never have taken an excuse of the quality he gives from any of his students. Why should we take it from him?
Firstly, after reading the judgment one fails to understand why it was so vital for the two pictures- one of children eating outside and the other of children standing in front of a wooden cabin in a maize field- to be attached to the judgment. It is rare for court judgments to contain pictorial illustrations. They are usually reserved for cases involving infringements or passing-off of trademarks, where the picture is used to illustrate similarities or differences. Judges have always been content to describe the facts as they emerge from the evidence or their own observation. In fact, the learned judge aptly describes what he sought to illustrate with two colour pictures in these words on page 4 of the 6-paged judgment. He states:
‘The scanned pictures of the so-called children’s centre are attached at the end of this judgment. It consists of an open maize field with crops on two sides and bare ground in the centre and a wooden cabin at one end. The children sit on the dusty ploughed-up field and consume their rations in this most unhygienic environment. If they (sic) is anything to restore to them, it would be this bare, ploughed-up ground and wooden cabin.’
The fact that the learned judge was able to describe the supposed scene at the care centre should have concluded the matter. Yet according to the judge part of the delay in delivering the judgment was caused by the lack of scanning facilities at the High Court. The fact is it was not necessary to have pictorial representations for purposes of the judgment.
Secondly, if the High Court does not have facilities to scan, was it in the circumstances necessary for the judge to insist on providing the two pictures which are virtually of no aid? Strictly speaking, the photos are not even part of the judgment as they do not appear inside the text. They are mere attachments.
Thirdly, assuming for a moment that the pictures were indeed germane to the issues before him, could another solution have been arrived at seeing that the matter involved vulnerable minor children who are orphans? Was scanning the only suitable way of capturing the images even if the High Court did not have scanning facilities?
Fourth, the disappearance of the file remains to be fully explained. But in truth it is unlikely that the mystery goes beyond the judicial chambers. The judge says that ‘the record was misfiled and unfortunately forgotten.’ By whom, surely it has to be asked? Traditionally, a file in which a judge has prepared his judgment and awaits handing down must be kept under wraps. This is so because the judgment must only be publicly available when the judge is ready to hand it down. For the file to disappear with a ‘draft judgment’ is certainly odd and unacceptable. Many will recall the vicious attack that was directed towards the Supreme Court when a draft judgment circulated to fellow judges was reported in the press. The matter concerned the very emotive case of Dr McGowan. In fact, in most jurisdictions, including our own, serious secrecy procedures are followed with regards to draft judgments.
Fifth, as if to spread the blame, the judge states that the ‘follow-up was only made years later.’ It is not clear who made the follow-up. I presume it was one of the parties or their representatives. Unfortunately, this does not wash. A judge cannot say, it is partly your fault that you did not bother me enough! Would this have saved the file from being ‘misfiled’? For the record, several lawyers have complained to the Law Society about unanswered countless letters to judges enquiring about judgments.
Sixth, the child care centre involved has the right of appeal against the High Court judgment. What purpose would be served now by them appealing against this judgment to the Supreme Court some six years later? Have the children affected by this decision been spared the suffering occasioned by the delay? Can their rights be restored? Can the suffering, psychological, emotional and physical, be compensated if the Supreme Court were to decide otherwise?
Conclusion
This bizarrely delayed judgment has just shone some rare light into the dark corner of judicial poor performance and lack of accountability. We may never know how deep and dark the dungeon is. The Supreme Court has also set a poor example, with judgments outstanding for years in some cases. Lawyers are often reluctant to provide details of judgments that have been outstanding for inordinate periods for fear of upsetting our sometimes imperious judges. But complaints enhance rather than stifle judicial accountability, independence and public confidence. Records from the few lawyers who have had the courage to share reflect a shocking level of delays and neglect that would not be tolerated in any other occupation. Some countries have had to take a firm view of judicial indolence by setting strict standards on judgment delivery. In Kenya and Uganda, a maximum of 90 days is allowed. In India, judgment has to be delivered within 30 days and only in unusual and exceptional circumstances, should it go up to a maximum 60 days. In Guyana, a judge can be constitutionally removed from office for persistently not writing decisions or for continuously failing to give decisions and reasons therefor within the time limit set by parliament. In South Africa, no acting judge will be appointed to a substantive position if they have been guilty of delaying judgment delivery. Neither will a sitting judge be promoted if they are guilty of judicial indolence.
The cost to the society of delayed justice is immeasurable. It results in unnecessary suffering of litigants; poor recollection of evidence and issues; witnesses, lawyers and judges die; delay in the appeal process; loss of income in financial matters; loss of value in compensation cases; disappearance of records and files; deletion of transcription tapes; and a huge social and economic cost. Just delayed is justice denied. It is time for serious action in order to arrest this cancer of indolence.
Fiat justitia ruat caelum- let justice be done though the heavens may fall!
Tererai Mafukidze is a lawyer.
Reserve Bank Corrupting Judges
RESERVE BANK CORRUPTING JUDGES
By Tererai Mafukidze
It boggles the mind that the judiciary, which should be the most venerable institution in our country can be so naïve and desperate to accept “donations” from the Reserve Bank clearly in breach of all known constitutional and ethical principles.
It was reported with great delight by the Herald of the 1st August 2008, that the central bank had “donated” a fleet of new vehicles, generators, sets of plasma televisions, and full sets of satellite dishes for the sitting judges to improve their conditions of service. The report would shock any jurist who cares about judicial independence. The “donations” are unlawful and unconstitutional.
The Law
Firstly, the Constitution of Zimbabwe states clearly that the remuneration of judges should be charged on the Consolidated Revenue Fund. It clearly states in Section 88 (1) that;
“There shall be charged upon and paid out of the Consolidated Revenue Fund to a person who holds the office of or is acting as Chief Justice, a judge of the Supreme Court, Judge President of the High Court or a judge of the High Court such salary and allowances as may from time to time be prescribed by or under an Act of Parliament.”
Parliament passed the Judges’ Salaries, Allowances and Pensions Act [Chapter 7:08] which empowers the president to set the conditions of service for the judges through a statutory instrument. The Minister of Finance is required to review salaries, pension benefits and allowances payable to judges whenever an increase is to be awarded to persons employed in the public service.
This is obviously an unsatisfactory and unconstitutional delegation of power by Parliament. It leaves the judiciary susceptible to control by the Executive through financial pressure. If the judges make judgments the Executive does not like, it punishes them by not paying competitively. Secondly, there is no relationship between the judges’ salaries and the salaries of civil servants. They perform different functions.
As observed by the Supreme Court of India:
“Judges are not ‘employees’ and judicial service is not service in the sense of ‘employment’. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as…Ministers and the Members of the Legislature.”
The responsibility to set the remuneration of judges in many progressive jurisdictions has now been given to commissions or bodies that are independent of the judiciary, parliament or the Executive. This achieves the necessary protection for judges from possible influence by the Executive through the use of financial means.
The Chief Justice of South Australia observed in 1997:
“Those who control the purse strings will always have some capacity to influence the actions of those who are dependent upon the contents of the purse . . . . . . There can be no doubt that executive government control over judicial salary fixation is always at least an incipient threat to judicial independence.”
Under the current Constitution, the central bank is not the custodian of the Consolidated Revenue Fund. It does not run the Treasury notwithstanding the grand-standing and improper splashing of state funds. Any payments from the Consolidated Fund must have statutory or constitutional permission. Judges are paid from the Treasury specifically because they are supposed to be independent. The charge on the Consolidated Fund ensures that there are funds always available to remunerate them. Their remuneration must be paid by the State. This also removes the danger of parties or other over-zealous entities making payments to judges on shaky philanthropic grounds.
How the central bank and its zealots end up “donating” various luxury goods and trinkets to the judges is beyond me. It sets a very dangerous precedent and poses a real threat to the rule of law, independence of judges and their impartiality. Their independence is the cornerstone of their impartiality.
International Standards
It is the international convention that no judge should receive any payment for his judicial work except as provided for under the necessary legislation. In other words, no matter how poorly-paid the judges maybe, Anglo American Corporation or Reserve Bank cannot pay them any salary or provide them with the necessities of life even if they are desperate. That responsibility lies with Treasury through the existing constitutional and statutory provisions.
“The Basic Principles on the Independence of the Judiciary” adopted by the United Nations General Assembly in 1985 clearly state that:
“The term of office of judges, their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law.”
The Latimer House Guidelines of the Commonwealth adopted with the full participation of Zimbabwe in 1998 provide under judicial funding that:
“Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary. Appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the judiciary. As a matter of principle, judicial salaries and benefits should be set by an independent body and their value should be maintained.”
As was aptly put by the Indian Supreme Court in the All India Judges Association v. Union of India (AIR 1993 SC 2493) decision:
“Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is tried to say that those who are in want can not be free. Self -reliance is the foundation of independence. The Society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judge in want of the essential accouterments and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself".
Improvement of Salaries and Benefits
It is the responsibility as the law stands of the President and the Minister of Finance to ensure that judges are adequately remunerated. Our judges are not and should never be a charity case. The salaries and benefits of judges must be set at the right levels and be known publicly in the same way changes to presidential or ministerial salaries and allowances is publicly gazetted. As Justice Francois-Beaudoil of Quebec, Canada observed:
“When you are reduced to begging for a decent salary, how can you be truly independent?”
Judicial office is a matter of great personal and professional sacrifice. It is very important that the benefits attract the best legal brains without making it difficult for them to maintain their families, earn and live a decent lifestyle. The structure of salaries and benefits must reflect the dignity of the judicial office. As Winston Churchill put it decades ago:
"Our aim is not to make our judges wealthy men, but to satisfy their needs to maintain a modest but dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge."
We must make the remuneration of judges attractive so that we can defeat any temptation to corruption by the judiciary. This will not only be intended to benefit judges but the greater benefit is to the administration of justice itself. As was observed in March 1816 by Senator Henry Clay:
"The labourer is worthy of his hire; and if you do not give him the wages of honesty, it is to be apprehended the wages of corruption may, in process of time, come to be sought."
And yet while there is unanimity that the conditions of service for judges need improvement, it does not mean that our judges must resort to luxuries delivered outside constitutional and legal imperatives. Even then, benefits that appear designed to suit farmers are in fact obscene. 4 by 4 trucks have nothing to do with the judges’ ability to discharge their judicial function.
Donations and Independence
These so-called “donations” have heavily compromised the independence of the judiciary. How does a party who has a dispute against the Reserve Bank or its Governor believe that he will receive justice from a judge who is watching a plasma screen powered by a generator provided by one of the parties? Judges are not required to be independent only. They are required to be seen to be independent. Any perception that judges are in the pocket of one institution or a party to a dispute or that they have lost their ability to discharge their responsibilities without fear or favour, further harms the already tattered reputation of our legal system.
As it stands, all the judges who have received these donations are disqualified from hearing matters involving the Reserve Bank or its alter ego, “Our Governor”. You would expect those that demand high standards of corporate governance from bank directors to understand that a lot more is demanded of judges. The reputation of judges stands or falls on their moral authority. If this “donation” practice is not nipped in the bud, what stops accused persons or litigants donating groceries, cigarettes, and sanitary ware, fertilizer, whisky and Farmer shoes to the obviously underpaid judges?
The honour and principles of human beings are put at the greatest test in times of hardship. It is at these times that those who are principled must suppress the obvious temptation of luxury to uphold and defend the principles and ethos of our legal order.
Acceptable Donations to courts
It is common in developing countries for judiciaries to receive donor-funding. But that donor-funding is targeted towards the improvement of the institutions of administration of justice and not for the personal and family or farming comfort of judges. The funding is provided for specific projects and the purchase of books and equipment. The funding is secured from foreign entities and not from entities within the jurisdiction of Zimbabwean courts. This ensures that the independence of judges is not compromised by benefits received from potential litigants. The funds are managed in a transparent manner and usually through a public trust. Proper donations directed at improving the administration of justice can do wonders. When not done properly, they pose a serious danger to our constitutional values.
I therefore call upon the Honourable judges to return the “donations” received from the Reserve Bank. Any efforts to improve their conditions of service must be done in terms of the law as currently provided. It remains for the individual conscience of each judge to guide them on whether they can serve their oath of office as required by the Constitution while receiving alms from unlawful sources.
Legal Action
Should the learned judges not heed my call to return these unlawfully received luxuries, it is imperative for the Law Society to take legal action to protect the independence and integrity of the judiciary. The only difficulty they will face is that if all the judges have received these luxuries, none of them will be allowed by law to hear this matter. This will necessitate the employment of possibly foreign acting judges to hear the challenge. These judges will need to be paid in foreign currency. And the Reserve Bank (which is also the Exchange Control Authority), who will certainly be one of the defendants together will all the judges in the case will not be friendly to this cause.
There are too many vivid lessons in history that the corruption of the legal system is the last act in the destruction of the rule of law, democracy and human rights. The independence of our judges is the foundation of our constitution, our rights and our freedom. It cannot be compromised for personal comfort or political expediency. Once independent and impartial judges are gone, who will protect us?
Tererai Mafukidze is a lawyer. He writes in his personal capacity.
By Tererai Mafukidze
It boggles the mind that the judiciary, which should be the most venerable institution in our country can be so naïve and desperate to accept “donations” from the Reserve Bank clearly in breach of all known constitutional and ethical principles.
It was reported with great delight by the Herald of the 1st August 2008, that the central bank had “donated” a fleet of new vehicles, generators, sets of plasma televisions, and full sets of satellite dishes for the sitting judges to improve their conditions of service. The report would shock any jurist who cares about judicial independence. The “donations” are unlawful and unconstitutional.
The Law
Firstly, the Constitution of Zimbabwe states clearly that the remuneration of judges should be charged on the Consolidated Revenue Fund. It clearly states in Section 88 (1) that;
“There shall be charged upon and paid out of the Consolidated Revenue Fund to a person who holds the office of or is acting as Chief Justice, a judge of the Supreme Court, Judge President of the High Court or a judge of the High Court such salary and allowances as may from time to time be prescribed by or under an Act of Parliament.”
Parliament passed the Judges’ Salaries, Allowances and Pensions Act [Chapter 7:08] which empowers the president to set the conditions of service for the judges through a statutory instrument. The Minister of Finance is required to review salaries, pension benefits and allowances payable to judges whenever an increase is to be awarded to persons employed in the public service.
This is obviously an unsatisfactory and unconstitutional delegation of power by Parliament. It leaves the judiciary susceptible to control by the Executive through financial pressure. If the judges make judgments the Executive does not like, it punishes them by not paying competitively. Secondly, there is no relationship between the judges’ salaries and the salaries of civil servants. They perform different functions.
As observed by the Supreme Court of India:
“Judges are not ‘employees’ and judicial service is not service in the sense of ‘employment’. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as…Ministers and the Members of the Legislature.”
The responsibility to set the remuneration of judges in many progressive jurisdictions has now been given to commissions or bodies that are independent of the judiciary, parliament or the Executive. This achieves the necessary protection for judges from possible influence by the Executive through the use of financial means.
The Chief Justice of South Australia observed in 1997:
“Those who control the purse strings will always have some capacity to influence the actions of those who are dependent upon the contents of the purse . . . . . . There can be no doubt that executive government control over judicial salary fixation is always at least an incipient threat to judicial independence.”
Under the current Constitution, the central bank is not the custodian of the Consolidated Revenue Fund. It does not run the Treasury notwithstanding the grand-standing and improper splashing of state funds. Any payments from the Consolidated Fund must have statutory or constitutional permission. Judges are paid from the Treasury specifically because they are supposed to be independent. The charge on the Consolidated Fund ensures that there are funds always available to remunerate them. Their remuneration must be paid by the State. This also removes the danger of parties or other over-zealous entities making payments to judges on shaky philanthropic grounds.
How the central bank and its zealots end up “donating” various luxury goods and trinkets to the judges is beyond me. It sets a very dangerous precedent and poses a real threat to the rule of law, independence of judges and their impartiality. Their independence is the cornerstone of their impartiality.
International Standards
It is the international convention that no judge should receive any payment for his judicial work except as provided for under the necessary legislation. In other words, no matter how poorly-paid the judges maybe, Anglo American Corporation or Reserve Bank cannot pay them any salary or provide them with the necessities of life even if they are desperate. That responsibility lies with Treasury through the existing constitutional and statutory provisions.
“The Basic Principles on the Independence of the Judiciary” adopted by the United Nations General Assembly in 1985 clearly state that:
“The term of office of judges, their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law.”
The Latimer House Guidelines of the Commonwealth adopted with the full participation of Zimbabwe in 1998 provide under judicial funding that:
“Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary. Appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the judiciary. As a matter of principle, judicial salaries and benefits should be set by an independent body and their value should be maintained.”
As was aptly put by the Indian Supreme Court in the All India Judges Association v. Union of India (AIR 1993 SC 2493) decision:
“Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is tried to say that those who are in want can not be free. Self -reliance is the foundation of independence. The Society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judge in want of the essential accouterments and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself".
Improvement of Salaries and Benefits
It is the responsibility as the law stands of the President and the Minister of Finance to ensure that judges are adequately remunerated. Our judges are not and should never be a charity case. The salaries and benefits of judges must be set at the right levels and be known publicly in the same way changes to presidential or ministerial salaries and allowances is publicly gazetted. As Justice Francois-Beaudoil of Quebec, Canada observed:
“When you are reduced to begging for a decent salary, how can you be truly independent?”
Judicial office is a matter of great personal and professional sacrifice. It is very important that the benefits attract the best legal brains without making it difficult for them to maintain their families, earn and live a decent lifestyle. The structure of salaries and benefits must reflect the dignity of the judicial office. As Winston Churchill put it decades ago:
"Our aim is not to make our judges wealthy men, but to satisfy their needs to maintain a modest but dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge."
We must make the remuneration of judges attractive so that we can defeat any temptation to corruption by the judiciary. This will not only be intended to benefit judges but the greater benefit is to the administration of justice itself. As was observed in March 1816 by Senator Henry Clay:
"The labourer is worthy of his hire; and if you do not give him the wages of honesty, it is to be apprehended the wages of corruption may, in process of time, come to be sought."
And yet while there is unanimity that the conditions of service for judges need improvement, it does not mean that our judges must resort to luxuries delivered outside constitutional and legal imperatives. Even then, benefits that appear designed to suit farmers are in fact obscene. 4 by 4 trucks have nothing to do with the judges’ ability to discharge their judicial function.
Donations and Independence
These so-called “donations” have heavily compromised the independence of the judiciary. How does a party who has a dispute against the Reserve Bank or its Governor believe that he will receive justice from a judge who is watching a plasma screen powered by a generator provided by one of the parties? Judges are not required to be independent only. They are required to be seen to be independent. Any perception that judges are in the pocket of one institution or a party to a dispute or that they have lost their ability to discharge their responsibilities without fear or favour, further harms the already tattered reputation of our legal system.
As it stands, all the judges who have received these donations are disqualified from hearing matters involving the Reserve Bank or its alter ego, “Our Governor”. You would expect those that demand high standards of corporate governance from bank directors to understand that a lot more is demanded of judges. The reputation of judges stands or falls on their moral authority. If this “donation” practice is not nipped in the bud, what stops accused persons or litigants donating groceries, cigarettes, and sanitary ware, fertilizer, whisky and Farmer shoes to the obviously underpaid judges?
The honour and principles of human beings are put at the greatest test in times of hardship. It is at these times that those who are principled must suppress the obvious temptation of luxury to uphold and defend the principles and ethos of our legal order.
Acceptable Donations to courts
It is common in developing countries for judiciaries to receive donor-funding. But that donor-funding is targeted towards the improvement of the institutions of administration of justice and not for the personal and family or farming comfort of judges. The funding is provided for specific projects and the purchase of books and equipment. The funding is secured from foreign entities and not from entities within the jurisdiction of Zimbabwean courts. This ensures that the independence of judges is not compromised by benefits received from potential litigants. The funds are managed in a transparent manner and usually through a public trust. Proper donations directed at improving the administration of justice can do wonders. When not done properly, they pose a serious danger to our constitutional values.
I therefore call upon the Honourable judges to return the “donations” received from the Reserve Bank. Any efforts to improve their conditions of service must be done in terms of the law as currently provided. It remains for the individual conscience of each judge to guide them on whether they can serve their oath of office as required by the Constitution while receiving alms from unlawful sources.
Legal Action
Should the learned judges not heed my call to return these unlawfully received luxuries, it is imperative for the Law Society to take legal action to protect the independence and integrity of the judiciary. The only difficulty they will face is that if all the judges have received these luxuries, none of them will be allowed by law to hear this matter. This will necessitate the employment of possibly foreign acting judges to hear the challenge. These judges will need to be paid in foreign currency. And the Reserve Bank (which is also the Exchange Control Authority), who will certainly be one of the defendants together will all the judges in the case will not be friendly to this cause.
There are too many vivid lessons in history that the corruption of the legal system is the last act in the destruction of the rule of law, democracy and human rights. The independence of our judges is the foundation of our constitution, our rights and our freedom. It cannot be compromised for personal comfort or political expediency. Once independent and impartial judges are gone, who will protect us?
Tererai Mafukidze is a lawyer. He writes in his personal capacity.
Michael Mugabe Cannot Prosecute Mukoko and Others
Michael Mugabe cannot prosecute Mukoko and others
May 8, 2009
By Tererai Mafukidze
MICHAEL Mugabe, a state prosecutor and son of President Robert Mugabe’s late brother Donato, recently appeared on behalf of the State in the matter involving Zacharia Nkomo, Jestina Mukoko and many other persons accused of sabotage, espionage, terrorism and recruiting terrorists for military training in order to destabilise the country and remove the incumbent President violently from office.
The recent decision by the State to get the accused persons remanded in custody on the grounds that they had already been indicted for trial has been adequately ventilated elsewhere, with the result that political pressure was exerted on the Attorney-General and the accused persons have had their bail reinstated.
Resorting to political influence to correct even blatant injustices in the courts is a controversial area which is not the subject of my concern in this paper. But I will do well to warn that this practice breeds more evil than good. My present gripe is why Michael Mugabe should be allowed to act as a prosecutor in the matter involving allegations about planned unconstitutional removal of his father’s brother from office.
We should never lose sight of the seriousness with which Michael Mugabe takes his relationship with the President. It will be recalled that sometime in early 2008, a lawyer, Harrison Nkomo, who represents some of the accused persons in this matter was arrested and charged with “insulting the President” after Michael Mugabe laid a complaint against the lawyer with the police. The gravamen of the complaint was that the lawyer had allegedly requested that Michael informs his “father” of the citizens’ desire that he retires from office!
By Shona custom, your father’s male siblings are also your fathers. In the case of death of your biological father, one of his brothers, in fact, becomes your father. This is the status that President Mugabe enjoys in Michael’s life. The harassment and threats to Nkomo’s life that followed prompted the lawyer to take precaution and leave the country for his own safety.
In addition, one of the accused persons is Zacharia Nkomo. Zacharia Nkomo is a blood brother to Harrison Nkomo. As a representative of the Attorney General (the public officer constitutionally charged with prosecuting criminal offences) Michael Mugabe is required to be independent of any political or other influence in making decisions relating to the prosecution of the accused persons. His soiled relationship with Zacharia’s brother is a matter of personal interest to him. Does the prosecutor not have a score to settle with one of the Nkomos at a personal level?
I am would be naïve to believe that the deployment of Michael Mugabe to deal with this matter is mere coincidence. Allocation of sensitive cases is a matter of serious consideration in the Attorney General’s Office. The incumbent Attorney General has publicly announced his political affiliation notwithstanding that he is required to discharge the functions of his office in the public interest, without fear or favour. As a proud member of the sole ruling party at the time, he has a personal interest in the matter and so does the prosecutor he has allocated the case.
Will justice be seen to be done in this scenario?
The right to a fair trial is clearly set out in Section 18 (2) of the Zimbabwean Constitution. The right encompasses many factors that are designed to ensure that a person charged with criminal offences enjoys a fair trial conducted by an impartial tribunal. One of the key persons involved in a criminal trial is the state prosecutor who presents charges on behalf of the State. Such a role is in our law is reserved for a state prosecutor who can objectively, with the necessary detachment and impartiality present the state case. The state case ought to be presented fairly.
The full meaning of the constitutional right to a fair trial in these circumstances was articulated by Chief Justice Gubbay as follows in the 1997 case, Smyth v Ushewokunze:
“Section 18(2) embodies a constitutional value of supreme importance. It must be interpreted therefore in a broad and creative manner, so as to include within its scope and ambit, not only the impartiality of the decision making body, but the absolute impartiality of the prosecutor himself whose function, as an officer of the court, forms an indispensable part of the judicial process. His conduct must of necessity reflect on the impartiality or otherwise of the court.”
And so it is trite in our law that the right to a fair trial is heavily compromised if the prosecutor’s absolute impartiality is not guaranteed.
Chief Justice Gubbay, in the case involving Smyth and Ushewokunze (Prosecutor) set out the qualities expected of a prosecutor in the most erudite terms. Need I add that the judgment in the matter has been accepted in many jurisdictions worldwide as the leading case on the subject! Smyth had approached the highest court in the land seeking the removal of Ushewokunze as the prosecutor in his case. He alleged, among other things, that the prosecutor was waging a vendetta against him, allowing false allegations to be presented in court, threatening his arrest and making spurious allegations which the prosecutor knew to be untrue. The learned former Chief Justice citing various authorities put it as follows:
“A prosecutor must dedicate himself to the achievement of justice. He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness. Since he represents the State, the community at large and the interests of justice in general, the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner. Like Caesar’s wife, the prosecutor must be above any trace of suspicion. As a “minister of the truth” he has a special duty to see that the truth emerges in court. He must produce all relevant evidence to the court and ensure, as best he can, the veracity of such evidence. He must state the facts dispassionately. If he knows of a point in favour the accused, he must bring it out. If he knows of a credible witness who can speak of facts which go to show the innocence of the accused, he must himself call that witness if the accused is unrepresented; and if represented, tender the witness to the defence. If his own witness substantially departs from his proof, he must, unless there is special and cogent reason to the contrary, draw the attention of the court to the discrepancy, or reveal the seriously contradictory passage in the statement to the defending practitioner.”
Considering the political shenanigans that surround the abduction, detention, torture and ill-treatment of the accused persons by faceless state agents, it is most shocking that the matter would be handled by a prosecutor closely related to the President.
Will Michael Mugabe, aware of the huge political interest his father’s brother has in the matter, exude the necessary objectivity desired of a state prosecutor? Will he readily present evidence essential for the investigation of the truth if that evidence favours the accused persons like Zacharia Nkomo and Jestina Mukoko.
Jestina’s detention has been a major point of discussion and debate between political figures in Harare including his relative. The huge interest his close relative has in the matter is obvious as Robert Mugabe would have been the biggest victim of any of the alleged actions against his government.
In the same way that Ushewokunze was ordered off Smyth’s case on the grounds that the prosecutor was biased against the accused person, Michael Mugabe must be immediately ordered off the case. His closeness to the President who has a significant interest in this matter is likely to affect his objectivity, detachment and impartiality required of those that prosecute crimes on our behalf. The fact that Harrison Nkomo’s brother is one of the accused persons may invite ulterior considerations in the prosecution of the matter. This will result in the trial of the accused persons becoming a charade that is conducted to satisfy subjective interests of other persons.
It may be that Mugabe will do his job well as his professional obligations require him to do. Yet it is hard to imagine his participation in this case escaping public doubt and suspicion in the circumstances of this case. It is difficult to imagine any other situation that merits the old cliche that justice must not only be done, but must be seen to be done.
As Chief Justice Gubbay eloquently put it for the full Supreme Court bench:
“Like Caesar’s wife, the prosecutor must be above any trace of suspicion.”
(Tererai Mafukidze is a Zimbabwean lawyer who lives in Johannesburg. He can be contacted on tereraim@gmail.com)
May 8, 2009
By Tererai Mafukidze
MICHAEL Mugabe, a state prosecutor and son of President Robert Mugabe’s late brother Donato, recently appeared on behalf of the State in the matter involving Zacharia Nkomo, Jestina Mukoko and many other persons accused of sabotage, espionage, terrorism and recruiting terrorists for military training in order to destabilise the country and remove the incumbent President violently from office.
The recent decision by the State to get the accused persons remanded in custody on the grounds that they had already been indicted for trial has been adequately ventilated elsewhere, with the result that political pressure was exerted on the Attorney-General and the accused persons have had their bail reinstated.
Resorting to political influence to correct even blatant injustices in the courts is a controversial area which is not the subject of my concern in this paper. But I will do well to warn that this practice breeds more evil than good. My present gripe is why Michael Mugabe should be allowed to act as a prosecutor in the matter involving allegations about planned unconstitutional removal of his father’s brother from office.
We should never lose sight of the seriousness with which Michael Mugabe takes his relationship with the President. It will be recalled that sometime in early 2008, a lawyer, Harrison Nkomo, who represents some of the accused persons in this matter was arrested and charged with “insulting the President” after Michael Mugabe laid a complaint against the lawyer with the police. The gravamen of the complaint was that the lawyer had allegedly requested that Michael informs his “father” of the citizens’ desire that he retires from office!
By Shona custom, your father’s male siblings are also your fathers. In the case of death of your biological father, one of his brothers, in fact, becomes your father. This is the status that President Mugabe enjoys in Michael’s life. The harassment and threats to Nkomo’s life that followed prompted the lawyer to take precaution and leave the country for his own safety.
In addition, one of the accused persons is Zacharia Nkomo. Zacharia Nkomo is a blood brother to Harrison Nkomo. As a representative of the Attorney General (the public officer constitutionally charged with prosecuting criminal offences) Michael Mugabe is required to be independent of any political or other influence in making decisions relating to the prosecution of the accused persons. His soiled relationship with Zacharia’s brother is a matter of personal interest to him. Does the prosecutor not have a score to settle with one of the Nkomos at a personal level?
I am would be naïve to believe that the deployment of Michael Mugabe to deal with this matter is mere coincidence. Allocation of sensitive cases is a matter of serious consideration in the Attorney General’s Office. The incumbent Attorney General has publicly announced his political affiliation notwithstanding that he is required to discharge the functions of his office in the public interest, without fear or favour. As a proud member of the sole ruling party at the time, he has a personal interest in the matter and so does the prosecutor he has allocated the case.
Will justice be seen to be done in this scenario?
The right to a fair trial is clearly set out in Section 18 (2) of the Zimbabwean Constitution. The right encompasses many factors that are designed to ensure that a person charged with criminal offences enjoys a fair trial conducted by an impartial tribunal. One of the key persons involved in a criminal trial is the state prosecutor who presents charges on behalf of the State. Such a role is in our law is reserved for a state prosecutor who can objectively, with the necessary detachment and impartiality present the state case. The state case ought to be presented fairly.
The full meaning of the constitutional right to a fair trial in these circumstances was articulated by Chief Justice Gubbay as follows in the 1997 case, Smyth v Ushewokunze:
“Section 18(2) embodies a constitutional value of supreme importance. It must be interpreted therefore in a broad and creative manner, so as to include within its scope and ambit, not only the impartiality of the decision making body, but the absolute impartiality of the prosecutor himself whose function, as an officer of the court, forms an indispensable part of the judicial process. His conduct must of necessity reflect on the impartiality or otherwise of the court.”
And so it is trite in our law that the right to a fair trial is heavily compromised if the prosecutor’s absolute impartiality is not guaranteed.
Chief Justice Gubbay, in the case involving Smyth and Ushewokunze (Prosecutor) set out the qualities expected of a prosecutor in the most erudite terms. Need I add that the judgment in the matter has been accepted in many jurisdictions worldwide as the leading case on the subject! Smyth had approached the highest court in the land seeking the removal of Ushewokunze as the prosecutor in his case. He alleged, among other things, that the prosecutor was waging a vendetta against him, allowing false allegations to be presented in court, threatening his arrest and making spurious allegations which the prosecutor knew to be untrue. The learned former Chief Justice citing various authorities put it as follows:
“A prosecutor must dedicate himself to the achievement of justice. He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness. Since he represents the State, the community at large and the interests of justice in general, the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner. Like Caesar’s wife, the prosecutor must be above any trace of suspicion. As a “minister of the truth” he has a special duty to see that the truth emerges in court. He must produce all relevant evidence to the court and ensure, as best he can, the veracity of such evidence. He must state the facts dispassionately. If he knows of a point in favour the accused, he must bring it out. If he knows of a credible witness who can speak of facts which go to show the innocence of the accused, he must himself call that witness if the accused is unrepresented; and if represented, tender the witness to the defence. If his own witness substantially departs from his proof, he must, unless there is special and cogent reason to the contrary, draw the attention of the court to the discrepancy, or reveal the seriously contradictory passage in the statement to the defending practitioner.”
Considering the political shenanigans that surround the abduction, detention, torture and ill-treatment of the accused persons by faceless state agents, it is most shocking that the matter would be handled by a prosecutor closely related to the President.
Will Michael Mugabe, aware of the huge political interest his father’s brother has in the matter, exude the necessary objectivity desired of a state prosecutor? Will he readily present evidence essential for the investigation of the truth if that evidence favours the accused persons like Zacharia Nkomo and Jestina Mukoko.
Jestina’s detention has been a major point of discussion and debate between political figures in Harare including his relative. The huge interest his close relative has in the matter is obvious as Robert Mugabe would have been the biggest victim of any of the alleged actions against his government.
In the same way that Ushewokunze was ordered off Smyth’s case on the grounds that the prosecutor was biased against the accused person, Michael Mugabe must be immediately ordered off the case. His closeness to the President who has a significant interest in this matter is likely to affect his objectivity, detachment and impartiality required of those that prosecute crimes on our behalf. The fact that Harrison Nkomo’s brother is one of the accused persons may invite ulterior considerations in the prosecution of the matter. This will result in the trial of the accused persons becoming a charade that is conducted to satisfy subjective interests of other persons.
It may be that Mugabe will do his job well as his professional obligations require him to do. Yet it is hard to imagine his participation in this case escaping public doubt and suspicion in the circumstances of this case. It is difficult to imagine any other situation that merits the old cliche that justice must not only be done, but must be seen to be done.
As Chief Justice Gubbay eloquently put it for the full Supreme Court bench:
“Like Caesar’s wife, the prosecutor must be above any trace of suspicion.”
(Tererai Mafukidze is a Zimbabwean lawyer who lives in Johannesburg. He can be contacted on tereraim@gmail.com)
Law, Like Love
Law, Like Love
Law, say the gardeners, is the sun,Law is the oneAll gardeners obeyTo-morrow, yesterday, to-day.Law is the wisdom of the old,The impotent grandfathers feebly scold;The grandchildren put out a treble tongue,Law is the senses of the young.Law, says the priest with a priestly look,Expounding to an unpriestly people,Law is the words in my priestly book,Law is my pulpit and my steeple.Law, says the judge as he looks down his nose,Speaking clearly and most severely,Law is as I've told you before,Law is as you know I suppose,Law is but let me explain it once more,Law is The Law.Yet law-abiding scholars write:Law is neither wrong nor right,Law is only crimesPunished by places and by times,Law is the clothes men wearAnytime, anywhere,Law is Good morning and Good night.Others say, Law is our Fate;Others say, Law is our State;Others say, others sayLaw is no more,Law has gone away.And always the loud angry crowd,Very angry and very loud,Law is We,And always the soft idiot softly Me.If we, dear, know we know no moreThan they about the Law,If I no more than youKnow what we should and should not doExcept that all agreeGladly or miserablyThat the Law isAnd that all know thisIf therefore thinking it absurdTo identify Law with some other word,Unlike so many menI cannot say Law is again,No more than they can we suppressThe universal wish to guessOr slip out of our own positionInto an unconcerned condition.Although I can at least confineYour vanity and mineTo stating timidlyA timid similarity,We shall boast anyvay:Like love I say.Like love we don't know where or why,Like love we can't compel or fly,Like love we often weep,Like love we seldom keep. WH Auden
Law, say the gardeners, is the sun,Law is the oneAll gardeners obeyTo-morrow, yesterday, to-day.Law is the wisdom of the old,The impotent grandfathers feebly scold;The grandchildren put out a treble tongue,Law is the senses of the young.Law, says the priest with a priestly look,Expounding to an unpriestly people,Law is the words in my priestly book,Law is my pulpit and my steeple.Law, says the judge as he looks down his nose,Speaking clearly and most severely,Law is as I've told you before,Law is as you know I suppose,Law is but let me explain it once more,Law is The Law.Yet law-abiding scholars write:Law is neither wrong nor right,Law is only crimesPunished by places and by times,Law is the clothes men wearAnytime, anywhere,Law is Good morning and Good night.Others say, Law is our Fate;Others say, Law is our State;Others say, others sayLaw is no more,Law has gone away.And always the loud angry crowd,Very angry and very loud,Law is We,And always the soft idiot softly Me.If we, dear, know we know no moreThan they about the Law,If I no more than youKnow what we should and should not doExcept that all agreeGladly or miserablyThat the Law isAnd that all know thisIf therefore thinking it absurdTo identify Law with some other word,Unlike so many menI cannot say Law is again,No more than they can we suppressThe universal wish to guessOr slip out of our own positionInto an unconcerned condition.Although I can at least confineYour vanity and mineTo stating timidlyA timid similarity,We shall boast anyvay:Like love I say.Like love we don't know where or why,Like love we can't compel or fly,Like love we often weep,Like love we seldom keep. WH Auden
Kana Wamutanga Musikana
KANA WAMUTANGA MUSIKANA
BY MORDECAI A. HAMUTYINEI
Ichokwadi kuti inenge nhamo zvayo
Iyo ine hama dzedu vanasikana.
Nyangwe rudo rwukamubaya mwoyo somunzwa
Haakwanisi kutanga iye kurupa kumukomana.
Anoita zvose zvishereketo zvokukwezva
Asi kuti agotanga iye zvinogozha.
Zviri mumwoyo make zviri muninga, angatozviburitsa chete
Kana wamutanga musikana.
Uchitanga kumuona chete hana yako inorova.
Unobvuma kuti itsvarakadenga yado mwoyo.
Kunonoka usati wasvika, chingoti, ‘Ndinokuda’,
Unoona mwana ovhunduka, vhudzi rake kuti nyanyanya!
Kwauri ruziso kape, ndiye ramutuku sehandira;
Shoko rake ndiro rimwe, ‘Handikudi’.
Chirega uchiona mazauone, matindingoma,
Kana wamutanga musikana.
Hoyo zvino mwanasikana washaya shoko.
Otarisa pasi, otarise divi, otarisa mudenga.
Chimuti chotorwa chombotsengwa-tsengwa.
Otora rushamhu opura mashizha zvenhando.
Ongovhuna gumbo mwene sokuzvida.
Kana zvadai chifarira, ndoozvaanoita
Kana wamutanga musikana.
Kungoti bhi nehope rwauya rugwaro,
Mashoko akanyorwamo gumi nefararira.
Rako riya rinongotenderedzwa nebwoni.
Kuti aritaure zvakone n’anga.
Pamwe pakanzi, ‘Mudiw…’, ndokudzimwa.
Pamwe pakanzi, ‘Ndinokud…’, ndokudzimwazve.
Ichokwadi anoshaya nezano rose
Kana wamutanga musikana.
Pamwe ramangwani chienda kwaari uone,
Uchinatsa kumubvunza kana auya kutsime.
“Ko, washinga kuramba uhosi hwandanga ndakupa here?”
Hapoka, chauya chazuro, chiona zvoitwa.
Anomboti pamupfuti, pamutondo, dzamara zvagombera,
Wozonzwa, “Bva, ah, ndada hangu!”
Kazhinji ndozvaanoita
Kana wamutanga musikana.
Zvino chirega uchiona chava chipatapata
Wabata chakati tende, mazangandari.
Woira woriswa semhou ine nhinjana.
Kungoti tsvenzu wotobvunzwa kwawaswera.
Rwava rudo zvino, hapachina kupokana.
Iwe maheu wonwa naanoera.
Vehama, ndozvazvinoita parudzi rwedu
Kana wamutanga musikana.
© M. A. Hamutyinei, pp 17-18, Mabvumira Enhetembo, Mambo Press.
BY MORDECAI A. HAMUTYINEI
Ichokwadi kuti inenge nhamo zvayo
Iyo ine hama dzedu vanasikana.
Nyangwe rudo rwukamubaya mwoyo somunzwa
Haakwanisi kutanga iye kurupa kumukomana.
Anoita zvose zvishereketo zvokukwezva
Asi kuti agotanga iye zvinogozha.
Zviri mumwoyo make zviri muninga, angatozviburitsa chete
Kana wamutanga musikana.
Uchitanga kumuona chete hana yako inorova.
Unobvuma kuti itsvarakadenga yado mwoyo.
Kunonoka usati wasvika, chingoti, ‘Ndinokuda’,
Unoona mwana ovhunduka, vhudzi rake kuti nyanyanya!
Kwauri ruziso kape, ndiye ramutuku sehandira;
Shoko rake ndiro rimwe, ‘Handikudi’.
Chirega uchiona mazauone, matindingoma,
Kana wamutanga musikana.
Hoyo zvino mwanasikana washaya shoko.
Otarisa pasi, otarise divi, otarisa mudenga.
Chimuti chotorwa chombotsengwa-tsengwa.
Otora rushamhu opura mashizha zvenhando.
Ongovhuna gumbo mwene sokuzvida.
Kana zvadai chifarira, ndoozvaanoita
Kana wamutanga musikana.
Kungoti bhi nehope rwauya rugwaro,
Mashoko akanyorwamo gumi nefararira.
Rako riya rinongotenderedzwa nebwoni.
Kuti aritaure zvakone n’anga.
Pamwe pakanzi, ‘Mudiw…’, ndokudzimwa.
Pamwe pakanzi, ‘Ndinokud…’, ndokudzimwazve.
Ichokwadi anoshaya nezano rose
Kana wamutanga musikana.
Pamwe ramangwani chienda kwaari uone,
Uchinatsa kumubvunza kana auya kutsime.
“Ko, washinga kuramba uhosi hwandanga ndakupa here?”
Hapoka, chauya chazuro, chiona zvoitwa.
Anomboti pamupfuti, pamutondo, dzamara zvagombera,
Wozonzwa, “Bva, ah, ndada hangu!”
Kazhinji ndozvaanoita
Kana wamutanga musikana.
Zvino chirega uchiona chava chipatapata
Wabata chakati tende, mazangandari.
Woira woriswa semhou ine nhinjana.
Kungoti tsvenzu wotobvunzwa kwawaswera.
Rwava rudo zvino, hapachina kupokana.
Iwe maheu wonwa naanoera.
Vehama, ndozvazvinoita parudzi rwedu
Kana wamutanga musikana.
© M. A. Hamutyinei, pp 17-18, Mabvumira Enhetembo, Mambo Press.
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