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Published: March 15, 2011
“One is a Prime Minister of Zimbabwe who has taken an oath to respect and uphold the laws of the country. The rule of law he preaches also means accepting that judges have a responsibility to interpret the law, no-one else can claim to have authority in interpreting the law except the courts,” Moyo said.
“Tsvangirai has done what nobody else in the executive has ever done. He has undermined not only the rule of law, but his own claims to be a champion of democracy and rule of law and proven that he has no respect or understanding of the rule of law.
“No-one will listen to him in future when he preaches about the rule of law because to him that means the rule of MDC-T.”
The Attorney General Johannes Tomana is said to be considering bringing charges against the Prime Minister and the former Speaker – an action that could further strain relations in an already tense governing coalition with President Robert Mugabe’s Zanu PF party and a rival MDC faction led by Welshman Ncube.
Tsvangirai was furious after the Supreme Court last week voted 3-2 to nullify Lovemore Moyo’s election as Speaker, after finding that MPs from MDC-T had been compelled to display their votes in what was supposed to be a secret ballot.
Tsvangirai stormed: “This decision is a clear reflection of the state of affairs on the Bench. A judiciary which in the post-Dumbutshena and post-Gubbay era has largely discredited itself by becoming a willing appendage of Zanu PF.
“Dubious and pro-executive decisions have been made in this era. We will not accept the decisions of some Zanu PF politicians masquerading as judges. Zanu PF is trying to use the courts to subvert and regain what it lost in an election.”
And offering his response, Lovemore Moyo told New Zimbabwe.com last Friday: “We are aware that the majority of our people, learned men and women on the Bench, owe it to the (Robert) Mugabe regime, and obviously it is given that when it comes to a call when they have to make decisions, crucial decisions for that matter, they have to pay back the master. In this case, do things in favour of Zanu PF.
“So I was not shocked because I knew that 99 percent they would certainly favour their master.”
But Jonathan Moyo, speaking in an interview, said the twin attacks on the Supreme Court judges by the senior MDC-T officials was “particularly surprising”, given that judges have handed down many adverse judgements against Zanu PF interests.
On the same day judgement was handed down in the Speaker’s case, Chief Justice Godfrey Chidyausiku shot down the Attorney General’s appeal against the acquittal of MDC-T treasurer Roy Bennett on treason charges. Tsvangirai himself was acquitted on treason charges in 2004 over an alleged plot to assassinate Mugabe.
Moyo said: “If these were Zanu PF judges doing Zanu PF’s bidding, this guy (Tsvangirai) would be six feet under by now. He is forgetting very quickly. We in Zanu PF were furious that he got away, but we did not call judges MDC-T appendages.
“To be sure, citizens in a democracy have a constitutional right to disagree with judgements, but they have no right to cast aspersions and attack the integrity of judges.
“We can attack judgments but not judges. Attacking judgements is part of advancing democratic space because it brings out views which the judge might not have taken into account and helps in future cases.
“Judgments are not gospel truths, they are not biblical. They are legal. What is legal today may not be legal tomorrow.”
Lovemore Moyo, said the MP, was especially culpable because he was a litigant in the Supreme Court case.
“His case is worse,” said the Tsholotsho North legislator, a former Information Minister. “His contempt is worse because here is a person who was a second respondent in this matter and had every opportunity in the last 24 months to make his case before the courts.
“He brought a lawyer from South Africa, the son of a South African apartheid judge, and won the case before the High Court. We never complained that it was a political ruling.
“The High Court said their displaying of ballot papers was impolitic, and found Moyo was one of the culprits who created the problem before the courts. He did not challenge that finding of facts. The Supreme Court took that as a matter of fact, and the case before it was not whether or not there were irregularities but whether that irregular conduct violated the constitution and rendered the contest null and void.
“He was heard and succeeded in the High Court but lost in the Supreme Court.
“What now needs to be done is to teach him and Tsvangirai that they are not above the law, and that they are prosecutable. If this was a reckless challenge to the rule of law, then the rule of law must take its course. There is no better way of teaching them that lesson than hauling them before the same court that they have held in contempt.”
New Zimbabwe.com columnist and legal expert Alex Magaisa has criticised both Moyo and Tsvangirai for their attacks on the courts, but said unfortunately they were not the first to take aim at judges following adverse decisions.
“Some characters who today point accusatory fingers do not seem to have a clean record when it comes to contemptuous behaviour towards the courts,” Magaisa said. “No doubt they will justify their conduct, just as Tsvangirai will also try to justify his recent comments.”
Magaisa recounted the Tsholotsho North MP’s attack on Justice Ismail Chatikobo in October 2000, when he was still Information Minister. Chatikobo had granted Capital Radio an after hours injunction stopping the seizure of its equipment.
Moyo railed against what he said were “night lawyers going to see night judges in a night court to seek night justice”.
After Justice Minister Patrick Chinamasa was hit with a contempt charge by Justice Blackie for his own criticism of judges, Moyo remarked that “there is no doubt that fair minded and law abiding citizens will see this judgement for what it is: outrageous, sinister and a highly personalised crusade by someone who should be packing his bags.”
Magaisa added: “It is not right for politicians – Zanu PF, MDC or whomsoever to abuse the courts and judges yet it is also not right to apply the law selectively. The matter needs sober minds and sober politicians to raise their hands and clean up their act and for judges to maintain the integrity of their office by not only dispensing justice but as the old adage goes, be seen to be doing so.”
But Moyo insists there is no “national value” in looking back at the era of “Rhodesian judges” when “the whole cast of players has changed from that time in terms of judges, the attorney general, the police, the culprits, the crimes and the times.”
“The last time I checked, Dr Magaisa was a lawyer. If I am correct, then he should know that what he is saying is not a legal defence. And this is a legal matter that requires a legal defence.
“If you are arrested for murder, you don’t say you are innocent because there are other murderers out there,” Moyo said.