Legal experts say former Presidential Affairs minister Didymus Mutasa is now unlikely to get a fair court hearing after President Robert Mugabe warned the judiciary on Friday not to entertain his case against Zanu PF and the nonagenarian.
Speaking at the official opening of Africa Chrome Fields’ (ACF’s) smelting plant in Zibagwe, Mugabe said the court application that Mutasa and former Zanu PF spokesman Rugare Gumbo had filed against him and the ruling party was not one for the judges to handle.
The president added controversially that he would also question the qualifications of any judge who would accept to hear the case.
The comments raised alarm among legal experts, with many saying that the president was pre-empting and prejudicing Mutasa’s case making and also compromising the separation of powers between the executive and the judiciary.
Constitutional law expert, Alex Magaisa, said Mugabe’s remarks were in bad taste and had the net effect of inducing fear among judges given the position he held.
“I think it’s unfortunate that the president has had to go down that route. Judges must not operate in circumstances that induce fear and intimidation.
“These statements might be regarded as pre-empting the judicial decision-making process and it also puts a dent on judicial independence. If Mutasa and Gumbo’s case has no merit, let the courts make that determination,” he said.
The United Kingdom-based lawyer added that Mugabe’s remarks suggested that Mutasa’s case had merits, and as such, the only way the president could think of to sink the matter was to intimidate judges.
“But when such statements are made, it suggests that there is real fear that the case has merit and the only way to win it is to intimidate the judges.
“This gives a poor impression at a time when Zimbabwe is slowly finding its way back into the broader community of nations,” Magaisa said.
Another constitutional law expert, Lovemore Madhuku, also tore into Mugabe saying the president was now an old man living in the past.
“I think such remarks should be condemned as irresponsible. Mugabe is an old man living in the past.
“He thinks we are still in the period 1980 to 1985 when he used to intimidate judges. But that period is over and nowadays no judge is intimidated by threats from the executive,” he said.
The University of Zimbabwe lecturer added that it was clear that Mugabe was ignorant of the law, as there was no matter that could be said to be outside the ambit of the judiciary.
“The major problem with Mugabe is that he has limited understanding of the law. He studied law in prison and he never went to a law school.
So his understanding of law is limited.
“There is no matter or dispute that cannot be brought to court. Under the constitution there is no matter that can be said to be non-judiciable. Mugabe is ignorant of this fact,” he said.
Madhuku added that Mutasa’s lawyers should capitalise on Mugabe’s remarks to dismiss the nonagenarian’s defence in court.
He also called on Chief Justice Godfrey Chidyausiku to issue a statement demanding that the executive stops interfering with the judiciary.
“What his lawyers should do when they go to court is to raise the issue that Mugabe’s remarks, as one of the respondents, were inappropriate as the matter is sub judice, and therefore his defence in court should be dismissed on that basis,” he said.
“Unfortunately, there are no remedies to the matter because a president cannot be arrested. But the Chief Justice can issue a statement like what Chief Justice Enoch Dumbutshena did in 1989 calling upon the executive to stop interfering with the judiciary,” Madhuku said.
Dewa Mavhinga, Human Rights Watch Southern Africa senior researcher, said Mugabe was undermining the independence of the judiciary.
“As a party to the court case in question, President Mugabe should not be making any comments about the chances of Mutasa’s case succeeding.
That is for the court and the court alone to decide.
“As head of state representing the executive arm of government, Mugabe’s statements undermine the independence of the judiciary and the constitutional principle of separation of powers,” he said.
Mavhinga added that Mugabe’s intimidation of judges was a clear violation of the constitution.
“President Mugabe should respect the constitution which requires that the executive cannot infringe on the independence of the judiciary and legislature and vice-versa. Such unwarranted and pre-emptive criticism of the judiciary amounts to intimidation,” Mavhinga said.
Mutasa has taken Mugabe and Zanu PF to court over what he claims was an unconstitutional party congress last December, as well as what he calls his “un-procedural” expulsion from the ruling party.
In their heads of arguments, Mutasa and Gumbo say they delayed launching their court application because many lawyers had “been intimidated into refusing to represent us”.
Opposition parties have also criticised Mugabe for his threats against the judiciary, but the veteran leader remains unfazed.
Mugabe maintains that Mutasa’s case is weak and that the courts must not entertain it.
“Regai kumboita hanya neavo vanoti tinonoman’arira party…ndiani akamboti policy yeparty, yebumbiro reparty rinotibatanidza bumbiro renyika (who said the party constitution that binds us is the same as the country’s Constitution?) the nonagenarian asked rhetorically in Zibagwe on Friday.
Two weeks ago, Mugabe also said during an interview with State television, to mark his 91st birthday, that he would want to see the judge who would agree to hear “that kind of nonsense”.