Can The Judiciary Stand Up To Mugabe’s Challenge on Mutasa?

By Prince Tongogara

 With less than two years before he bids farewell to the bench, Chief Justice Godfrey Chidyausiku is under the spotlight on how the judiciary will handle Didymus Mutasa High Court application after President Robert Mugabe said he would inquire into the educational qualifications of a judge who dares hear the case.

Chidyausiku has been at the helm of the judiciary since 2001 when he was controversially appointed Chief Justice in the aftermath of Antony Gubbay’s forced resignation. His appointment then ahead of senior Supreme Court Justices like Wilson Sandura and Luke Malaba was read to mean Mugabe rewards political correctness.

Trawling through his background reveals Chidyausiku who is well immersed in Zanu PF politics since before independence in 1980.

He was elected into parliament in the late 1970’s under ANC and served for three years till 1977. It is not clear what he did in the short hibernation from political life but resurfaces in the public life as an MP for Mashonaland East elected on a Zanu PF ticket.

Mugabe appointed Chidyausiku into the first post-independence cabinet as deputy minister of Local Government. Chidyausiku’s tenure in the ministry did not last as he was in 1982 elevated to the powerful office of Attorney General (AG).

The AG was the chief government legal advisor, the prosecutor general, would sit in cabinet meetings and was an ex-officio Member of Parliament. This was a position that gave him access to Mugabe more than some ministers.

Chidyausiku’s appointment as AG was the beginning of a succession of rapid rise in public office. Mugabe later appointed him to the High Court bench and was soon to become its head as Judge President.

Political developments in 2000 after the formation of the MDC and the commencement of the chaotic and violent fast track land reform quickly brought the executive into clashes with the Judiciary in arguments that quickly turned racial.

Gubbay, then Chief Justice threatened to resign over lack of security to Judges after marauding war veterans forced their way into the Supreme Court chambers in response to a landmark land judgment that said the land reform was being implemented illegally and was therefore unconstitutional.

Mugabe saw it as an opportunity to overhaul the judiciary and shape it in the manner Zanu PF wanted. Then Justice minister Patrick Chinamasa accepted Gubbay’s resignation before it was tendered thus creating a vacancy that was not there.

Mugabe against expectation that a senior Supreme Court Judge would takeover, appointed Chidyausiku who in one leap from the High Court became the most senior Judge, Chief Justice.

Chidyausiku had one serious moment of misjudgment – in 2000 during his chairmanship of the Constitutional Commission.

He was involved in an embarrassing wrangle with a fellow female member of the commission after trying to rescind a hefty payment for her services which Chidyausiku claimed was authorised in a “a moment of weakness”.

Can Chidyausiku now stand up to Mugabe and defend the judiciary and the constitution? Can he tell Mugabe to read following sections of the constitution 164(1); 164(2)(a); 165(3)(d) and 171(1)(a) which speak of judiciary independence and the courts’ jurisdiction?

If Chidyausiku remains quiet then he is confirming Mugabe’s utterances that no court can inquire into the affairs of Zanu PF even if section 171(1)(a) gives the High Court unlimited jurisdiction in all criminal and civil matters. Will he have the spine? It a matter of time and his handling of the Mutasa case will prove how independent the judiciary is.