1.

1 Introduction

1.1.1 The Rule of law defined

The rule of law as a concept is intricately associated with what the British scholar A.V
Dicey who has become an invariable starting point to the discussion of the concept in
his book.1 Dicey is the one generally viewed as having popularized the concept and
considers it the cornerstone of the modern legal system premised upon the following;

a) The absolute supremacy of the law as opposed to the influence of arbitrary

power and that no person is punishable except for a distinct breach of the law
established in the ordinary manner by the ordinary courts.2

b) Equity before the law – no person is above the law and everybody is subject to
the ordinary law and the jurisdiction of the ordinary courts.

c) Judge made constitution – rights of the individual are protected by the

decisions of the ordinary courts and not guarantees contained in the written
constitution.3

There is no consensus on what ‘the rule of law’ stands for, even though it is fairly
clear what it stands against. An important part of the problem is that ‘the rule of law’
is an ‘essentially contestable concept,’ with both descriptive and prescriptive content
over which there is a lack of widespread agreement.4 Virtually all the definitions boil
down to the ‘SACREDNESS OF THE LAW’.

1 An Introduction to the Study of Law and the Constitution (1885)

2 It must be noted that Dicey does not define “arbitrary power” and seems to attack every form of discretionary
power yet discretionary power is inevitably in every legal system. He seems to be referring to the existence of discre-
tionary power without legal control.

3 It seems on this point Dicey was defending the unwritten nature of the British Constitution.

4 Michael Rosenfeld in an article titled The Rule of law and the Legitimacy of Constitutional Democracy, Southern
California Law Review; Vol 74, 2001 at page 1308

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What is however accepted with an appreciable degree of unanimity is that law is law
regardless of its goodness or badness, whether it is moral or immoral or whether it is
just or unjust.5

The rule of law has many definitions, based on both philosophical and political
theories, and hence it is a difficult doctrine to explain definitely. Nevertheless, it is
often recognized as a means of ensuring the protection of individual rights against
unfettered government power. Different meanings and interpretations have been
given by various authorities as follows:

Before determining what the rule of law is or what its potential may be, it is
important to note briefly what it is not, by elucidating its minimum requirements.6
The rule of law is a legal maxim that states no person is immune to law. The “rule of
law” is often contrasted to the “rule of men.”7 Likewise, Aristotle endorsed the rule
of law, writing that “law should govern”, and those in power should be “servants of
the laws.”8 Cicero wrote, “We are all servants of the laws in order that we may be
free.”9

Different scholars and people have different interpretations about exactly what “rule
of law” means. According to political theorists Judith N. Shklar, “the phrase ‘the
rule of law’ has become meaningless thanks to ideological abuse and general
over-use”, but nevertheless this phrase has in the past had specific and important
meanings. 10

5 Professor L. Madhuku, An introduction to Zimbabwean Law.

6 Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 1, 7 (1997)
( noting “(t)he Rule of Law is a much celebrated, historic ideal, the precise meaning of which may be less clear today
than ever before”)

7 See. e.g., Marbury, 5 U.S. at 163 (1803) (contrasting a “government of laws” to a government of men)

8 Aristotle, Politics 3.16: “it is more proper that law should govern than any one of the citizens: upon the same prin-
ciple, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be
only guardians, and the servants of the laws.”

9 In Latin, Omnes legum servi sumus ut liberiesse possumus

10 Shklar, Judith and Hoffman, Stanley. Political Thought and Political Thinkers, pp 21( University of Chicago Press,
1988)

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Helen Yu and Alison Guernsey state that;

“The rule of law does not have a precise definition, and its meaning can vary
between different nations and legal traditions. Generally however, it can be
understood as a legal-political regime under which the law restrains the government
by promoting certain liberties and creating order and predictability regarding how a
country functions. In the most basic sense, the rule of law is a system that attempts
to protect the rights of citizens from arbitrary and abusive use of government
power.” 11

And yet Elissa Felman states as follows;

“There is no universal definition for the Rule of Law. It is a theory that numerous
scholars, lawyers, entities, and associations have attempted to define. The Rule of
Law varies from country to country because the laws reflect the basic morals and
values of the citizens within the country and differ according to the structure of a
country’s judicial system. If the Rule of Law, in its most basic form, is a system that
attempts to protect the rights of citizens from arbitrary and abusive use of
government power, then a uniform and clearly defined international Rule of Law
would be ideal.” 12

O’hood Phillips and Jackson have expressed the following caution regarding the rule
of law. They stated: “The rule of law is an ambiguous expression and may mean
different things for different writers. Only when it is clear and in what sense the
phrase is being used is there any value in asking whether the rule of law exists in a
particular legal system.”

Talking of society where the rule of law is viewed as a societal ideal, Jeremy
Waldon13 says:“What is this image? It is the image of a land where everyone is
subject to the same rule, where they are applied scrupulously and impartially and by

11 In a paper titled; World Bank, “The Rule of Law as a Goal of Development Policy”

12 In a paper aptly titled “The Difficulties in Defining the Rule of Law in an International World”

13 The Law: Theory and Practice in British Politics

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the officials who take that as their vocation and where people can look one another
in the eye and know that they are co-operating openly in a framework on terms that
apply to them all.”

The rule of law to me means that everyone must be subject to a shared set of rules
that are applied universally and which deal even handedly with people and which
treat like cases alike…”

1.1.2 Judicial Independence defined

Part of the independence of the judiciary consists in the fact that no one can give it
orders as to the manner in which it is to perform its work. “It owns no master.”

According to Graham Wallas: We make a judge “independent”, not in order to spare

him personal humiliation, but in order that certain motives shall not, and certain
other motives shall, direct his official conduct. The independence of the judiciary is
of essential importance in so far as it enables the courts to adopt a particular attitude
of mind towards the questions which come before it without fear that adverse results
or material reward will accrue to him/it according to whether the decision does or
does not meet with the approval of other persons.14

According to I. M. Rautenbach, the independence of the judiciary comprises various

aspects. Usually a distinction is made between the personal and functional
independence of the courts. The personal independence of the judiciary means that
the appointment, terms of office, and conditions of service of judiciary officers are
not controlled arbitrarily by other government bodies. The functional independence
of the courts means that in the exercise of their powers they are subject only to the
law.15

14 Graham Wallas; Our Social Heritage pp 188

15 Constitutional Law 2nd edition (1996)

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The doctrine of judicial independence, many would agree, stems from the very heart
of critical debate on separation of powers. It’s a brain-child of the separation of
powers doctrine. Thus, it would be an injustice not to delve on the separation of
powers doctrine since it forms the foundation for judicial independence.

According to Bradley and Ewing: “The essential values of law, liberty and democracy
are best protected if the three primary functions of government are discharged by
distinct institutions.” 16 They further argue that Judicial independence means that
clearly a judge must be able to decide a case without fear of reprisals, whether from
the Executive or a wealthy corporation. Judicial independence does not mean
isolation of the judge from society.17

In the case of Duport Steels Ltd v Sirs, 18 Sir John Donaldson stated that; “It is for
Parliament to make the laws and for the courts to tell the nation, including members
of both Houses of Parliament, what those laws mean.” According to de Smith: Where
the government of the day has an interest in an outcome of judicial proceedings, the
court should not act merely as a mouthpiece of the Executive. “The Judiciary must
therefore be secure from undue influence and autonomous within its own field.”

In many countries, the principles of judicial independence are acknowledged but are
substantially qualified in practice. Moreover, in some political contexts, the courts
allow the Executive the first and the last word. 19

In the South African case of: In re Certification of the South African Constitution 20

it was held that; “No constitutional scheme can reflect a complete ‘separation of
powers’. The scheme is always one of partial separation. There is however, no
universal model of separation of powers…it is about checks and balances.”

16 Constitutional and Administrative Law 12th edition (1997), Longman Publishers pp 89

17 Constitutional and Administrative Law 12th edition (1997), Longman Publishers

18 [1980] 1 W.L.R 142

19 S.A. de Smith; Constitutional and Administrative Law 3rd edition (1979)

20 1996 (4) SA 744

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In light of the foregoing, the researcher submits therefore that Zimbabwe has to be
reminded that: “An independent judiciary is a critical element of the rule of law. The
bedrock of a constitutional democracy is an independent judiciary. A judiciary which
is not independent from the executive and legislature renders the checks and
balances inherent in the concept of separation of powers ineffective.”21

1.1.3 The rule of law and judicial independence in action

Judicial independence is generally seen as a fundamental value of the rule of law.22 It

is therefore one of the critical components relied upon to realise the aspirations of
achieving the rule of law in any given state. That judicial independence is a core fea-
ture of the rule of law is not contested. Likewise, compliance with the law as it
stands is a key element, ensuring a stable and predictable, rather than arbitrary,
exercise of state powers. These two elements alone, however, comprise too narrow a
definition. The rule of law goes beyond judicial independence and compliance with
extant law, particularly as regards the Government which can, through Parliament,
change the law.

In AXA General Insurance v Lord Advocate in 2011, the Rt Hon. the Lord Hope of
Craighead, then Deputy President of the Supreme Court, said in a powerful statement
that "the rule of law requires that judges must retain the power to insist that legislation of
that extreme kind is not law which the courts will recognise".23 Thus, it presupposes the
idea that the rule of law and judicial independence cannot be viewed in the same bottle.

21 The progressive erosion of the rule of law in independent Zimbabwe, Third International Rule of Law
Lecture: Bar of England and Wales, Inner Temple Hall, London, Wednesday 9 December 2009,
By The Honourable Former Chief Justice Anthony R Gubbay, Zim-online Publications.
22 Kuijer, M The Blindfold of Lady Justice, diss Leiden, Nijmegen: Wolf Legal Publishers (2004) page 207

23 AXA General Insurance v Lord Advocate (2011) UKSC 46, para 51. The case concerned an Act of the
Scottish Parliament, not an Act of the UK Parliament, but Lord Hope expressed his remarks about the rule
of law as though they may apply to all legislation.

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This is by virtue of the fact that the rule of law is aspirational and indeed what is
expected from a democratic society, whilst on the other hand judicial independence is
one of a spectrum of tools to assist in realising this aspiration of ensuring the
compliance with the rule of law in any given state. Due notice should be taken though,
that the two doctrines cannot be viewed in the same light no matter how they serve
each other’s interests.

The two doctrines’ definitions, as would be shown below as the discussion progresses,
are different even if they point to the main issue which is the existence of order and
protection of fundamental rights. One could argue that the rule of law is what is desired
and aspired towards a truly democratic governing state whereas on the other hand,
judicial independence is an important component (tool) which sets the wheels in motion
for the realisation of the rule of law. It is apparent that the rule of law goes beyond
“simply … complying with the law”24 as set out in a statute such as in the Constitution of
Zimbabwe Amendment No. 20 of 2013.

Many are reluctant to attempt to define the rule of law, although one notes that Lord
Bingham of Cornhill’s principles are a useful articulation of core constitutional principles.
The writer invites the Government to agree that the rule of law extends beyond judicial
independence and compliance with domestic and international law. It includes the tenet
that the Government should seek to govern in accordance with the provisions of the
Constitution of the country, as well as the letter of the law.25

This assertion may stem from the fact that the role of the judiciary in most jurisdictions
particularly on the separation of powers structure is to interpret and apply the laws of
the country. Thus, in this interpretation process, judicial independence becomes a
mechanism in realising this aspiration of ensuring the compliance with the rule of law in
any given government set-up.

24 Q 78 (Lord Falconer of Thornton] Ethical Principles for Judges, 1998

25 Bingham T, The Rule of Law (2011) p 173.

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Having taken this position, independence of the judiciary becomes an indispensable
ingredient of the rule of law because without it, certainly it is difficult to realise the true
picture of the rule of law.

An independent judiciary can be considered an ingredient for a democratic state. Over

the years judicial independence has grown to be seen as an integral element of
constitutionalism in contemporary democracies. This is underpinned by a number of
theoretical underpinnings which show that an independent judiciary is a vital element in
the rule of law and the separation of powers paradigm (Helmke and Rosenbluth,
2009)26.

In Zimbabwe judicial independence is constitutionally guaranteed by the constitution of

2013, after the Lancaster House agreed constitution had become untenable with the
socio political and economic developments of the day. However as can be observed in
many in settings, a declaration of a principle in a constitution is one thing, and its
realization through consequent political interaction, that is the ``material constitution is
another`` (Foiriono, Padovanoz and Sgara, 2004).27

The judiciary is one of the three pillars of the State alongside the Executive and
Legislature all of which work together on the basis of separation of powers. It
contribution as a pillar will be explored late in the study. Separation of powers, as a
concept or doctrine can be referred to as a model for the governance of a state. The
model was first developed in ancient Greece and came into widespread use by the
Roman Republic as part of the unmodified Constitution of the Roman Republic in how to
run the State. Under this model, the state is divided into branches, namely, executive, a
legislature, and a judiciary each with separate and independent powers and areas of
responsibility so that no one branch has more power than the other branches.

26 Helmke G and Rosenbluth F,2009, Regimes and the Rule of Law: Judicial Independence in Compara -
tive Perspective, Department of Political Science, University of Rochester, Rochester
27 Foiriono, Padovanoz and Sgara, 2004,

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For similar reasons, the concept of Separation of church and state has been adopted in
a number of countries, to varying degrees depending on the applicable legal structures
and prevalent views toward the proper role of religion in society.28 There is no liberty if
the power of judges is not separated from the legislative and exceptive powers
respectively. Were it joined the Legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would be then the legislator. Were it joined
with executive power, the judge might behave with all the violence of an oppressor.29

1.2 Background

1.2.1 A Historical perspective - prior to the yer 2000

In order to gain an understanding of the problems of the rule of law and judicial
independence in Zimbabwe, reference has to be made to the structures inherited from
the colonial past. According to Masunungure and Bratton (2011), the Rhodesian settler
regime which governed from 1923 to 1979 had always been an interventionist in its
approach to state matters. 30 Its main purpose had been to protect the minority welfare
of the white community against the interests of the majority black population and
international capital. As such, matters to do with the rule of law were skewed and
protected the small settler regime while the majority African population was seriously
discriminated despite all the trappings of adherence to the rule of law. Ian Smith who led
the authoritarian Rhodesian Government suppressed the social, political and economic
rights, declaring a state of emergency in 1965 with extensive arbitrary powers.

28The terms is ascribed to French Enlightenment political philosopher Baron de Montesquieu- See Peter
Barenboim, Biblical Roots of Separation of Powers, Moscow, Letny Sad, 2005. ISBN 5-94381-123-0,
Permalink: http://lccn.loc.gov/2006400578.
29Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 1 (The Spirit of Laws) [1748]
The Spirit of Laws is Montesquieu’s best known work in which he reflects on the influence of climate on
society, the separation of political powers, and the need for checks on a powerful executive office.
30Masungure E, and Masunungure E (2011), The Anatomy of political predation: Leaders, Elites, and
Coalitions in Zimbabwe, 1980-2010, Development, Leadership

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As such the rule of law was merely a system which protected minority interests. The
judiciary therefore was merely an appendage to this giant system of oppression with
extensive intervention of the state in its affairs. For example, those arrested and
detained as political prisoners and those arrested as ordinary criminals were tortured in
routine fashion and the courts more often than not acted as a cover up to state brutality.
According to Ncube (1997) 31 it cannot be contested that the Rhodesian judiciary was
part and parcel of the state apparatus which systematically denied and violated human
rights of the native population.

By the time political independence arrived in 1980 under a black majority rule, the
winning ZANU PF government inherited a state that had been largely interventionist in
its approach with a plethora of repressive rules to support it. Out of the post war
agreements were the Lancaster House Constitution which many have contended that it
was a compromise which lacked the input of the general populace (Mandaza, 1991)32.
However; the Lancaster House Constitution made provisions that the constitution was
the supreme law of the land. As such, the independence was safeguarded. More
importantly an independent judiciary and adherence to the rule of law was enshrined in
it.

Section 79 B of the Lancaster House constitution clearly stated that members of the
judiciary shall not be subject to the whims or direction of any authority or person while
exercising their judicial authority. The only exception made was where the law explicitly
states that there will be subject to the control or direction of another member of the
judiciary (Lancaster House, Constitution of Zimbabwe, 1979)33. During the 1980s, it was
a period of relative peace and stability. Opposition politics was minimal and the ruling
party ZANU PF was in a position of superiority, it was almost a party state (Masungure

31Ncube ,1997, The Constitutional Reconstruction of Zimbabwe: Much Ado about nothing?’ (1987) 5 The
Zimbabwe Law Review 1, 8.
32Mandaza I., 1991, ‘Perspectives on Armed Struggle and Constitutionalism: The Zimbabwe model’ in I
Shivji (ed) State and Constitutionalism: An African Debate on Democracy (1991)71, 72.
33 Lancaster House Constitution of Zimbabwe,1979

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and Bratton, 2011) 34.According to Laakso (2013) 35 the 1980s were relatively stable
despite a few internal skirmishes between ZANU PF and PF ZAPU and a mini civil war
in 1980s. This dark period was however characterised by government excesses with the
military accused of massacring thousands of civilians under the guise of fighting
dissidents (Catholic Commission for Justice and Peace, 1999)36. On the other hand the
lack of a credible opposition at the time meant that Zimbabwe was relatively out of
international scrutiny

1.2.2 Post the year 2000 era

Since gaining political independence Zimbabwe has faced a plethora of challenges to

do with the erosion of the rule of law and judicial independence. These developments
became more accentuated and magnified at the turn of the century where diverse
political views entered the fray of Zimbabwe’s political arena. Since then issues of
judicial interdependence and the rule of law have become a contentious subject in
Zimbabwe’s academic and socio-political discourse. Based on this, the study then
seeks to critically examine the recognition and upholding of the rule of law and the
extent to which these have been upheld in Zimbabwe’s post millennium history.

Since independence in 1980 from Britain, Zimbabwe has faced numerous challenges
concerned with corruption, general poor administrative decisions and policy
inconsistencies all of which posed as threats to the rule of law and the independence of
the judiciary as will be explored later in the study. However, the situation took a turn for
the worse at the turn of the 21st century which ushered in diverse political
developments.37

34Masungure E, and Masunungure E (2011), The Anatomy of political predation: Leaders, Elites, and
Coalitions in Zimbabwe, 1980-2010, Development, Leadership
35Laakso

36 Catholic Commission for Justice and Peace, 1999

37Chitimira H and Mokone, The Functions of Selected Human Rights Institutions and Related Role-Play -
ers in the Protection of Human Rights in Zimbabwe, Pioneer in peer-reviewed, open access, online law
publications.

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This have profound implications for the rule of law and judicial independence. The fast
track land reform program brought to the fore serious inquiry into the rule of law and
judicial independence in the country.

Several violations of human rights abuses occurred under the auspices of the land
reform and these incidences of violence occurred at the instigation of the government.
This period also coincided with the rise of a nascent opposition which greatly challenged
the traditional ZANU PF power base.

Masunungure and Bratton (2011) 38 assert that this era was also filled with descent in
chaos, many political developments ensured, for example, rejection of the constitutional
referendum as well as the land reform program. At the same time a number of
repressive laws like Public Order and Security Act (POSA) and Access to Information
and Protection of Privacy Act (AIPPA) were enacted which flagrantly disregarded human
rights. These attacks on the justice system and the enactment of draconian legislation
looked like a grand scheme to cling to power by any means. As such lawlessness in the
new millennium seemed to have replaced the concept of peace.

In the end, various amendments to the Land Acquisition Act, the Electoral Act, the
Citizenship Act, the provisions gf the law applicable the prosecution of crimes and also
the targeting of judges and magistrates who objected to the use and abuse of these
legislations, gave the government the ability to claim a façade of acting within the
confines of Zimbabwe’s own sovereign rights and laws, at the same time denying the
most basic rights to the citizenry.

The thesis is a critical examination of (a) the content of the rule of law and (b) how with
the assistance of an independent judiciary, the rule of law can (and should) be
realised in Zimbabwe. The research is informed and influenced by developments and
events taking place in Zimbabwe from the year 2000 to date.

38 Masunungure E and Bratton M (2011), The Anatomy of political predation: Leaders, Elites, and Coali -
tions in Zimbabwe, 1980-2010, Development, Leadership program. [Please end your footnotes with a full
stop and remember that the names and initials of authors should NOT be in italics.]

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I have chosen this specific period having taken into consideration the political events
that occurred since 2000. The most important events (amongst others) are: the land
reform programme; the drastic reshuffling of the judiciary through resignations
and partisan (political) appointments; the 2008 elections which culminated in the
formation of the government of national unity which brought together for the first
time the country’s rival political parties in February 2009.

The forced resignations by judges, reshuffling of judges of the superior courts; and, the
2008 presidential and parliamentary elections marked and signalled the real threat to
the rule of law in Zimbabwe, mainly because judicial independence was heavily
compromised. Court cases involving land matters and elections decided during that
period will be used to highlight and substantiate this viewpoint.

It thus presupposes that judicial independence which is a mechanism for the realisation
of the rule of law was adversely affected by events and developments such as the ones
aforementioned which occurred in Zimbabwe from 2000 up till 2014. In realising this
objective of examining the rule of law and how judicial independence in Zimbabwe can
be viewed as a mechanism or tool, I will examine the nature of both the rule of law and
judicial independence in Zimbabwe as well as the supporting link between them.

The study will also explore the reasons that have led to the non-adherence and
breakdown of the rule of law and the effects arising from it – one of them being an
erosion of the independence of the judiciary. There is a need to critically analyse these
aspects in view of evidence (inter alia by way of reporting on these matters) of the
failure to uphold or respect the rule of law and judicial independence by the executive
arm of the Zimbabwean government and other persons in positions of authority or
influence (that is, organs of state).

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This research will concentrate on inter alia a comparison between the situation in
Zimbabwe and the state of affairs pertaining to the rule of law (as well as the
requirements for the independence of the judiciary) in a number of some countries such
as South Africa, Malawi and India in the Commonwealth in particular. Due cognisance
will be given to the reality that in any attempt to put more flesh and bones on the
concept of the rule of law by way of comparison, an investigation should be mindful that
diverse conceptions of the rule of law have taken root in different legal traditions. A
comparison between these traditions will allow for a better grasp of certain key nuances
concerning the rule of law and thus make it easier to appreciate its scope and
limitations, with a view of testing its legitimacy in the context of a pluralist constitutional
democracy.39

1.3 Rationale for and significance of the study

The importance of this study hinges on an understanding that respect for the rule of law
is essential to any democratic society. This is because the rule of law can be understood
as a legal-philosophy under which the law restrains the government by promoting
certain liberties and creating order and predictability regarding how a country functions.
In the most basic sense, the rule of law is a system that attempts to protect the rights of
citizens from arbitrary and abusive use of government power.40

The laws are there to set guidelines on how humans should co-exist in general and in a
particular country in particular, amongst others setting out what they are obliged to do;
what they are not permitted to do; the punitive measures in place where a wrong has
been committed; and, what their rights and duties are. Having stated the importance of
the rule of law and as a way of guaranteeing its consistent application, the research will
then proceed to show how this will be a pipe-dream only if one of its essential elements
is implemented or observed.

39 Michael R,”Judicial conduct and ethics, Southern California Law Review (2007), Vol 74:1307 p 1318.
40Helen Yu and Alison Guernsey “The Rule of Law as a goal of development policy” (2008?) page, 5-11
number”

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The research highlights the need to uphold the rule of law and the role of the
administration of justice generally and the importance of judicial independence in
particular to assist in the realisation of the rule of law in the country. According to
scholars, judicial independence is regarded as an important “ingredient” of the
over-arching notion of the rule of law. Drawing on the growing comparative literature on
the role of the courts in general and in supporting the rule of law in particular, the
research will unpack this assertion by focusing on two broad questions:

(a) Does the type of political dispensation affect judicial independence?

(b) Are independent courts, in fact, always essential for establishing and
guaranteeing the rule of law?

It is assumed that independent courts are able to promote and sustain the rule of law
because they are divorced (or should be) from any political influence which might affect
their interpretation and application of the country’s laws. Further, since the rule of law is
an offspring of the laws in any given country, therefore, should the judiciary (whose role
it is to interpret and apply the same laws) be biased in favour of the government it will
not be independent. It then turns into a more or less exercise in futility attempting to
establish and guaranteeing the rule of law.

In highlighting the role of institutional fragmentation, and erosion of the rule of law,
research undertaken is to describe and to justify the supposition that a democracy is
indeed more likely than any form of dictatorship to ensure both independent courts
which will in turn assist as a mechanism in upholding the rule of law.

Yet, by also considering the puzzle of institutional instability that marks courts in much of
the developing world the study identifies several reasons why democracy may not
always prove sufficient for constructing wither judicial independence and rule of law 41

41 ‘Regimes and the rule of law: Judicial independence in comparative perspective’ (2009) 12 Annual Re -
view of Political Science 345-366.

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In other words, democracy is not always a guarantee that the administration of justice
will operate efficiently, thus in many a case the government might choose to adhere to
some democratic principles and then choose to ignore others. For example many states
all have the trappings of democracy and have periodic elections whilst institutionally
they are lacking the institutional guarantors to real democracy.

It is my view that the events that arose post-2000 such as the removal and/or forced
resignation of judges in the country’s superior courts amongst other factors, contributed
towards the virtual collapse of the rule of law and diminution or decrease of judicial
independence; hence the need to address these vital areas in any given democratic
society.

1.4 Demarcation of the field of investigation

The research focuses (as indicated above) on the period from the year 2000 up to the
year 2014. This is mainly because the events that occurred within that period are of the
utmost importance in determining whether both the rule of law and judicial
independence have been upheld in Zimbabwe during that time. There are instances
however, when this historical line will have to be breached, for example, when I need to
refer to events prior to the said period.

Whilst the research mainly focuses on Zimbabwe, comparisons with other countries and
jurisdictions will be made as indicated earlier. It thus means that the line of research
undertaken extends beyond the Zimbabwean jurisdiction. The reason for this
undertaking is that the rule of law is not a home-grown concept but finds its roots in the
west (in Europe to be precise) and hence the need to examine the rule of law in its
historical context.

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1.5 The legal framework

The legal framework is not actually “law” as such, but refers to the rules, rights and
obligations of companies, government’s citizens, which are set forth in legal documents.
One should take note though, that the legal system in a given country is the sum total of
the law of a given society, and includes the way(s) it is made, how it is enforced and the
institutions involved in its making and enforcement.42

Further, a legal system is a system of interpreting and enforcing the law or the set of
laws of a country and the way in which they are interpreted and enforced in the
particular country. On the other hand, the legal process are the proceedings in any civil
lawsuit or criminal prosecution and particularly, describes the formal notice or writ used
by a court to exercise jurisdiction over a person or property. 43

1.6 Literature review

1.6.1 Judicial independence and rule of law.

Substantial literature has been documented across the African continent on issues to do
with the erosion of the rule of law as well politicisation of the judiciary. There is
substantial evidence across a range of cases where the state has blatantly interfered
through a multiplicity of strategies.44

This interference could be direct as well indirect as can be seen in the storming of the
Ugandan Court by the presidential paramilitary unit in 2007. It can also be indirect by
way of restricting access to the courts or weakening judicial powers as evidenced in
Tanzania at the turn of the 1990s.

42 L Madhuku, An Introduction to Law in Zimbabwe Weaver Press, 2010 at page 6.

43 Walker Oxford Companion to law, Oxford University press, p1003,1999
44 Ellet R, Judicial Independence Under the APRM: From Rhetoric to Reality, Occasional paper 212

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These can also be extra- legal attacks as seen in Lesotho or in fact formal
mechanisms of interference like the attempted judicial impeachment in Malawi; the
details of all this will be explored later in the study.

Elites in mixed regimes are not seized with the same kind of constraints as elites in
substantive democracies which means the incentive for protecting judicial
independence is easily lost. In fact faced with political insecurities which come with
elections, African leaders are inclined to interfere and manipulate the courts45. The
significance of the courts in some of Zimbabwe’s recent political calls for a meticulous
consideration of the current hindrances to the endurance and enrichment of judicial
independence is that it should go beyond merely separation of powers.

1.6.2 A brief synopsis of the African perspective

Across Africa many countries have been grappling with high expectations which come
with being democratic states and one of the pertinent issues under scrutiny. These
expectations are only inevitable as the end of colonialism brought with it a promise of
freedoms and prospect of good governance46. The importance of judicial independence
in strengthening the rule of law cannot be understated in African countries, Zimbabwe
included. Also has to be underscored, is that judicial independence does have several
implications. If there is political interference in judicial matters by way of unmeritorious
appointments and partisan judicial selections, this would ultimately contaminate the rule
of law (Volcansek, 2009)47. In instances where politicians serve as the final appointing
authorities, getting partisan political advantage becomes the primary motive in judicial
appointments.

45Popova, F, Judicialization of politics or politicization of the judiciary: Recent trends in Latin America’,
Democratization, 11, 1, 2012, pp. 104–26.
46 Manayatera,G,2015, A Critique of the superior courts Judicial Selection Mechanism in Africa; The case
of Mozambique, South Africa and Zimbabwe,LLD thesis, University of Pretoria
47 Volcansek M,L,Exporting the Missouri Plan :Judicial appointment commissions 2009,Missouri Law Re -
view

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A number of region and international instruments emphasize the importance of an
independent judiciary system in contemporary governance systems. Specifically Article
26 of the African Charter of Human and Peoples Rights states that` State parties to the
present Charter shall have the duty to guarantee the independence of the courts and
shall allow the establishment and improvement of appropriate national institutions
entrusted with the promotion and protection of the rights and freedom guaranteed by the
present charter`` (African charter on Human and people’s rights,1981)48.

Zimbabwe is a signatory to this charter and ascribes to the basic tenets of democracy
although this has been contentious in the post-independence era. A number of political,
social and economic developments unwounded so much that by year 2000 it was a
different setting altogether. This was also the time where there was a heightened
interest about the country’s judicial independence and rule of law.

1.6.3 Challenges to the independence and impartiality of the legal professions

Literature has also been generated which has catalogued the challenges which
characterise the responsibilities of the legal profession, including the courts. Whilst
there is need for prosecutors and judges to exercise their professional responsibilities
truly independently, experience would show that they face pressure from various
sources which is aimed at compromising their ability to do so.

For example, while the manner in which judges are appointed varies from country to
country, there is danger that their independence could be compromised if they are ap-
pointed only by the legislation, even if they are elected. 49 This arrangement can make
the judiciary more vulnerable to unwarranted outside pressure.

48 African charter on Human and people’s rights,1981

49Mzikamanda R, Constitutionalism and the Judiciary: A Perspective from Southern Africa,
Conference for Law Reform Agencies for Eastern and Southern Africa,2013

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Poor remuneration also constitutes a threat to the independence of judges since it could
make them more susceptible to corruption. In addition the independence of prosecutors
and the judiciary is constantly threatened by the refusal of the executive to give them
space to associate freely as professional associations. 50 For example, where the
executive gives licenses and dictates them to exercise their profession as members of
state run organisations, they cannot carry out their work independently.

However, judges, prosecutors and lawyers are frequently also subjected to other kinds
of persecution. Such acts may involve public criticism by either the Executive or
Legislature aimed at intimidating the legal professions, but they also often take the form
of arbitrary detentions and direct threats to their lives, including alleged killings and
disappearances. In some countries the fact of being a woman lawyer further adds to the
precariousness of the profession. Because of their willingness to take up the defence of
cases involving the sensitive issue of women’s rights, these lawyers face intimidation
and violence, sometimes resulting in death.

The threats and attacks described above are not only perpetrated by State authorities,
but are frequently also carried out by private individuals, either independently or in
connivance with bodies such as criminal organizations and drug cartels. Clearly, unless
judges, prosecutors and lawyers are able to exercise their professional duties freely,
independently an/d impartially, and unless the Executive and the Legislature are
likewise always prepared to ensure this independence, the rule of law will slowly but
steadily be eroded, and with it, effective protection of the rights of the individual.

As can be seen, it is the entire structure of a free and democratic constitutional order
that is upheld by an independent and impartial Judiciary, independent and impartial
prosecutors and independent lawyer. The above literature shows the extent to which the
judiciary can be compromised under varying circumstances across the African
continent.

50Ginsburg T, Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York:
Cambridge University Press, 2003, p. 252.

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However; this study focuses on Zimbabwe as it assesses the extent to which the
judiciary has maintained its independence as well as the success factors needed for this
ideal situation to be realised.

1.6.4 Disciplines enabling the rule of law and judicial independence to function
optimally
1.6.4.1 Applicable international law

International law may be defined as the body of rules and principles of action which are
binding upon civilised states in their relations with one another.51 The African Charter
on Human and People’s Rights was adopted by the Organisation of African Union
(OAU) now known as the African Union (AU) and all member states are guided by this
charter.52 As such general universal and regional human rights instruments
guarantee the right to a fair hearing in civil and criminal proceedings before an
independent and impartial court or tribunal, and the purpose of this section is to analyse
the meaning of the terms “independent” and “impartial” in the light of the case-law of the
competent international charter monitoring organs.

Professor Henken 53 defines human rights as claims which every individual has upon
society in which he/she lives, to call them “human” suggest that they are universal, they
are due to every human being in every society. They know no geography, or history, or
culture, or ideology, political or economic system or state of development. They do
not depend on race, or class or status. While treaties as interpreted do not solve all the
problems arising with particular regard to the notion of independence of the judiciary,
they do most certainly provide a number of essential clarifications.

51 Bretly T, An introduction to the international law of peace, 6th Edition, Oxford and the Clarendon Press,
at page 1.
52Gawanas B, The African Union: Concepts and implementation mechanisms relating to human rights,
2010
53 “Rights here and there” Vol 81 (1998?) Columbia LR p 1582

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In most cases they form the basis of reference by judicial authorities and governments
when promulgating laws. The clarifications might range from the conditions of work for
judicial officers, their appointment, tenure of service to mention but a few.

1.6.4.2 The role of constitutional law

Quoting the famous philosopher and jurist Hugo Grotius who once stated that when
arms are taken up, all respect for law, whether human or divine, is lost — as though by
some edict, a fury had been let loose to commit every crime. 54 Likewise, Aristotle
endorsed the rule of law, writing that “law should govern”, and those in power should be
“servants of the laws”. When peoples and the government itself observe the rule of law,
they put themselves in the service of preventing that “fury” from being unleashed; it is
upon that fundamental tenet that the Zimbabwean Constitution has been built.55

The topic is important as part of constitutional law because the laws that govern the
country are (usually) enshrined in a constitution. It implies that since judicial
independence which is an overarching idea of the rule of law is provided for in the
constitution; then there is a need to view it in that regard. One would even argue that
the rule of law without it being constitutionally entrenched still applies and exist
because of its status.

Constitutional law defines the role, powers, and a structure of different entities within a
state namely the executive, the parliament, or legislature. 56 Even though constitutional
jurisprudence in many cases has political implications, a clear distinction between the
powers of the judiciary in general and constitutional courts in particular and that of the
other government branches (the legislative and especially the executive branch) is vital

54 2nd Congress of the World Conference on Constitutional Justice held in Rio de Janeiro, Brazil, 16-18
January 2011; “Separation of powers and independence of constitutional courts and equivalent bodies’
Konrad Adenauer Foundation’s Rule of Law Programme – Promoting judicial independence in the world –
A report on the Congress (2011).
55 Madhuku,L, “The Appointment Process of Judges in Zimbabwe and its Implications to the Administra -
tion of Justice” 2010
56 Barnet ,

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in a democratic state, as the constitutional courts’ function is to safeguard the
Constitution and to provide checks and balances to the other two branches.

This institutional independence has to be provided for legally, but even given the
regulation, judicial independence is not necessarily guaranteed if the awareness to
make these rules effective is lacking amongst political decision-makers, civil society and
especially within the judiciary itself. Political pressure is exercised when judges are
exclusively recruited on partisan and patronage bases or by majority from the governing
political party, leading to a control over the decisions of the constitutional court, and
even judicial independence. The reason for this may be, especially in presidential
systems where parliaments are often weak in some developing countries.

In the end, the constitutional courts assume the vacuum as the only control organ to
government’s action, particularly when it comes to guaranteeing the citizen’s
fundamental rights. Zimbabwe is a good example of this scenario where the President is
omnipresent and omnipotent since Parliament’s powers have been so curtailed. It
means that there are no controls in place over the President.

Other good examples are that many of the post-communist countries are still struggling
to achieve democratic stability and develop strong institutions. Earlier research has
illustrated that a strong parliament (which include a strong opposition) is an important
factor in achieving these goals. In researches done on parliaments in post-communist
countries, a causal link was determined between democratic development and strength
of the legislature.

The research showed that stronger parliaments foster democratic development, while
weak legislatures hinder democratisation by undermining horizontal accountability, and
by inhibiting the development of political parties.57

57E. Buscaglia, Judicial Corruption in Developing Countries: Its Causes and Economic\ Consequences,
Global Programme against Corruption, Centre for International Crime Prevention Office for Drug Control
and Crime Prevention, United Nations Office at Vienna,
March 2001

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Horizontal accountability, that is, parliamentary scrutiny of the executive, is undermined
by weak parliaments because it allows the power to be concentrated in the hands of
either prime minister or president. On the other hand, political parties in representative
democracies serve as a bridge between people and their representatives. Hence, they
are the main tool people have to control the government. In some countries, the
judiciary has therefore gained a favourable reputation in society, but at the same time
their jurisdiction has evoked the displeasure of the politically powerful, whose only
chance to control their operations is by undermining them by installing judges who
unconditionally share and support their political projects.58

Superior courts such as the Constitutional Court have been regarded as the main
culprits since their levels of judicial activism are so high. The more they determine
sensitive matters especially those involving human rights in favour of individuals the
likely it is to evoke displeasure of the politically powerful. Both kinds of obstacles can
turn the judiciary into an “empty institution” that can no longer exercise its legitimate role
in a democratic scheme of the powers but only serve for staging or legitimating politics
and thus become irrelevant. Accordingly, it is clear that the topic of this research cannot
be divorced from constitutional law.

1.7 Statement of the general research problem

1.7.1 Purpose statement

The purpose of this study is to first critically examine the recognition and upholding of
the rule of law in Zimbabwe. The second leg to this examination consists of an enquiry
into the extent to which one of the most important instruments to uphold the rule of law
– adherence to the legal requirement of judicial independence – is observed in the
country since 2000.

58 2nd Congress of the World Conference on Constitutional Justice held in Rio de Janeiro, Brazil, 16-18
January 2011; “Separation of powers and independence of constitutional courts and equivalent bodies’
Konrad Adenauer Foundation’s Rule of Law Programme – Promoting judicial independence in the world –
A report on the Congress (2011).

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The year 2000 is central to this research because it is the year in which the country
started to be weighed down by events such as land invasions; flawed and contested
elections; the beginnings of serious economic decline; and, most importantly for
the purpose of the research interference with the judiciary on the part of the executive.

1.7.2 Problem

This study is premised on the question whether there is evidence of upholding the rule
of law and adherence to the legal requirement of judicial independence in Zimbabwe
from 2000 onwards to current? Since 2000, there has been evidence of ongoing
activities (including corruption) contributing towards the (perceived or real) increasing
or gradual erosion or even dissolution of both the rule of law and judicial independence.
Such erosion/dissolution is generally linked to corruption among a host of issues, and
the perceived failure by the Zimbabwean government to uphold the rule of law and
judicial independence resulting in a generally accepted view that rule of law has
diminished in terms of law and its implementation. It is submit that where corruption is
rampant, it then allows the erosion of judicial independence to take place which in turn
affects the attaining of the rule of law.

From the above it is the writer’s submission that indeed corruption can lead to erosion of
the rule of law, though it is not the only variable to be factored in.Thus, this research
looks at the importance of upholding the rule of law and fostering transparency and
accountability in the public sector in combating corruption, particularly as components
of effective national strategies.

The rule of law, transparency and accountability in the public sector serve not only as
means to counter corruption but also as fundamental conditions of good governance.
Definitions of corruption, and the realities of the developing world and the impact of
corruption on development are quickly reviewed. Strategies to overcome these
impediments at the national and international levels are discussed and illustrated with
examples.

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Within this context, corruption too is increasingly becoming recognised as a problem of
trans-national nature, calling for new and strengthened international responses and
strategies.

For developing countries, the added trans-national dimension of corruption, as well as

other social ills, serve as an additional challenge to their already strained state
capacity.59 Thus, rather than the bureaucracy serving the public interest, the
bureaucracy itself becomes an instrument for propagating the political interests of the
leadership, its own self-interest, or the personal interests of those within it.60

Given that corruption in the judicial system is a problem in most countries, there is a
need for systems to uncover irregularities, and discipline and dismiss corrupt officers. If
misused, however, anticorruption strategies become very effective tools for undermining
judicial independence by ridding the judiciary of independent-minded judges that the
authorities find bothersome, and scare others from following in their tracks. Examples
are many. Below are some of the more recent investigations by the International
Commission of Jurists (ICJ). Due to concern for a high number of judicial dismissals
in the Russian Federation, the ICJ, in May 2012, undertook a mission ‘to assess the
disciplinary procedure, grounds for disciplining and dismissals of judges and their
potential effect on the security of tenure and the independence of the judiciary.61

They found that: “The threat of dismissal, and the uncertainty of the grounds on which a
judge can be dismissed, affects the capacity of all judges to act independently”, and
that: “the threat of disciplinary action may hang over a judge for many years, since there
is no limitation period for such action. This makes the judge susceptible to pressure
from within the judicial hierarchy or from the executive”.

59Mauro, Paolo. “Corruption: Causes, Consequences, and Agenda for Further Research” in Finance &
Development (Vol. 35, No. 1, March 1988).
60Hope Sr, Kempe Ronalde. “Corruption in Africa: A Crisis in Ethical Leadership” in Public Interest (Vol. I,
No. III, Summer 1999), p. 289 – 308.

61ICJ (International Commission of Jurists) (6 August 2012), Executive control over judiciary persists in
Tunisia. Available at: www.icj.org/executive-controlover- judiciary-persists-in-tunisia/.

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Similarly, the ICJ criticised Tunisia for summarily dismissing 70 Judges: ‘Instead of
fulfilling the stated aim of eradicating corruption, the actions of the Minister of Justice
undermine the independence of the judiciary in Tunisia and reinforce the previous
practices of undue political interference in judicial matters’. Criticism was also raised
when Baltasar Garzón (the famous Spanish Judge who called for extradition of the
Chilean dictator Pinochet) had criminal proceedings initiated against him for corruption
and malfeasance as he was investigating the crimes committed by representatives of
the Franco regime.62

The above-mentioned examples are drawn from around the world, illustrating that
corruption is a universally occurring phenomenon. It affects all stages of development,
although its manifestations may become more sophisticated with the material affluence
and institutional maturity of a country. However, given the constraints on and the
additional challenges facing developing countries and those in transition, corruption
takes an additional toll on these societies.63

To be sure, even those who do not trust the state’s judicial system may still reckon that
a random or politicised purge is better than none at all, as it sends a message to
officials who would be grafting away. But ultimately, the most effective way to reduce
systematic corruption is to establish a strong, reliable and transparent rule of law.64 All
these problems appear to be of a political making as those in government made
policies that do not promote the rule of law and judiciary independence.

62ICJ (International Commission of Jurists) (10 February 2012), The International Commission of Jurists
condemns the conviction of Judge Baltasar Garzón to an 11-year ban from the office. Available at:
www.icj.org/the-internationalcommission-
63Guido Bertucci and Elia Yi Armstrong. “United Nations Involvement in Promoting Government Ethics” in
Yassin El-Ayouty, et al (ed) Government ethics and law enforcement: Toward global guidelines (2000)
Westport, CT Prayer.
64Cathy Holcombe, “Transparency and strong rule of law are key to fighting corruption” - This article ap -
peared in the South China Morning Post print edition as “Rule of law vs. urge to purge”, 17 September
2014

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The judiciary cannot afford to be complacent when carrying out its duties of applying
and interpreting the laws of the land. Political decisions sometimes leave the judiciary
organ in the wilderness since some of the policies which politicians expect the judiciary
to uphold are counter-productive to the rule of law.

An example can be drawn from the friction that occurred between the Zimbabwe
government and the judiciary when it came to the determination of land disputes during
the land reform programme.

1.8 Research question

The central question addressed in this dissertation is therefore the following: “Why do
we notice the steady erosion of both the rule of law and judicial independence in
Zimbabwe post 2000?”Flowing naturally from this fundamental question are the follow-
ing questions:

1. What does the “rule of law” entail and what are the requirements or conditions for
the rule of law to apply and to work optimally in Zimbabwe?
2. To what extent has judicial independence prevailed in Zimbabwe and what is
required to ensure such independence?
3. What is the relationship between the rule of law and judicial independence? Or,
put differently, is there any link between the two concepts?
4. What are the reasons for the decline in the application of the rule of law and
judicial independence in Zimbabwe?
5. What is the impact of such decline?
6. What recommendations can be suggested to solve the problem(s)?

1.9 Aims of the study

The aims of the study are to:

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1. Provide an answer to the question as to what is the rule of law and the
requirements or conditions for the rule of law to work or apply.
2. Provide an answer to the question as to what judicial independence is and the
requirements for such independence.
3. Provide an answer to the question as to what is the relationship between the rule
of law and judicial independence, if any.
4. Provide an answer to the question as to what are the reasons for the decline in
the application of the rule of law and judicial independence in Zimbabwe.
5. Highlight and confirm the existence of the problems associated with failure to
respect or uphold the rule of law and independence of the judiciary.
6. Expose the incidences and vices of failure to uphold the rule of law and judicial
independence.
7. Raise awareness on the ramifications of failure to respect the rule of law and
independence of the judiciary.
8. Provide a comparative analysis of how the international community, through
relevant selected few country case studies, deal with these issues.
9. Establish new checks and balances for ensuring respect of respect for rule of law
and judicial independence based on what other progressive jurisdictions are
doing and also, in tandem with the local economic-politic-socio needs of
Zimbabwe.
10. Propose revision of and amendments to the current constitutional provisions and
statutes applicable to the judiciary and the rule of law with a view of curbing
excesses, guided by developments in selected African comparisons such as
South Africa, Malawi, and international comparison as far afield as India.
11. Explain how and why the Constitutional amendments should be incorporated as
part of the constitutional provisions regulating the three arms of the State.
12. Recommend the Constitutional amendments and their enactment in order to give
effect to the Constitutional provision and ensure enforcement of same.
13. To consolidate knowledge and understanding of the importance of an
independent and impartial Judiciary, independent and impartial prosecutors and

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 an independent legal profession in order to ensure the rule of law and effective
protection of the fundamental rights and freedoms of Zimbabweans.
14. Provide an answer to the questions as to what can be done to ensure the rule of
law in Zimbabwe as well as an answer to the question as to what can be done to
ensure judicial independence in the country.

1.10 Research approaches and methodology

The study will employ no direct human participation involvement but strictly a desk
review of published material on the relevant features of the rule of law and judicial
independence as well as comparisons of other legal systems in SADC region and other
countries internationally. To this end, the following sources will inter alia be scrutinized:
international conventions and regional treaties, case law, textbooks and articles from
law journals. Visits to courts (local), legal projects centres and some civic organisations
dealing with the rule of law will complement the research.

Information will therefore be obtained in the main works of international and national
scholars and textbooks. Desk top review of legal texts on how judicial independence
is important for the rule of law embarked on by institutions and organisations such as
the United Nations (UN), World Bank (WB) and European Union (EU) shall also be used
for comparative analysis in this research.

A fair deal of information has been (and will be) obtained from the Internet, the specific
sites of which will be acknowledged in the various sections of the research. Given the
topical nature of the subject matter, electronic research will be central to the study.
Moreover, it became apparent during the literature review process that the most
appropriate and main method of data collection is the Internet. Thus, it was discovered
that most of the current debates, writings and other relevant materials on the subject of
the study can be accessed from published legal textbooks as well as on the Internet.

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1.10.1 Document analysis

Document analysis is a form of qualitative research in which documents are interpreted

by the researcher to give voice and meaning around an assessment topic. Analysing
documents incorporates coding content into themes similar to how focus group or
interview transcripts are analysed.

In this research, coding mainly involves the process of creating summary or keyword
data from a document. This would then be used in to create a fast-search index or
database of documents for easy reference. There are three primary types of
documents:

Public records: The researcher managed to examine official and ongoing records of
some organisations’ activities. Examples include mission statements, annual reports,
and policy manuals of notable organisations such as the University of Zimbabwe (Law
Faculty), Zimbabwe Lawyers for Human Rights, Legal Resources Foundation, The Law
Society of Zimbabwe among others.

Personal documents: First-person accounts of an individual’s actions, experiences, and

beliefs. Examples include online editions reflections/journals/blogs, and newspapers.

Physical evidence: Physical objects found within the study setting (often called
artefacts). Examples include flyers, posters, agendas, handbooks, handouts, manuals,
and training materials.

1.10.2 Comparative analysis

Comparisons with other jurisdictions abroad were made to ascertain how the rule of law
and judicial independence are applied. The jurisdictions chosen are from some of the
SADC regional jurisdictions such as South Africa and Malawi because these countries

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share certain difficulties and similarities with Zimbabwe as these are all developing
countries.

Further afield, comparisons will be drawn from India only. There was a general
reluctance to draw comparisons with the so-called “advanced democracies” such as the
European block for instance, Britain and other European powers because
circumstances and needs differ in those countries greatly from our own in Zimbabwe
and others cited above.

1.11 Structure of the thesis

A brief summary of the content of the chapters of the thesis:

Chapter 1: Introduction

This chapter serves to introduce the research topic. It describes the structure of the
proposed investigation, which consists of the introduction, the legal framework, the
statement of the general research problem, aims of the study, research approaches,
research methodology, text organisation, key terms and definitions thereof.

Chapter 2: Theoretical underpinnings of judicial independence

This chapter discusses the theoretical underpinnings of the concept of judicial

independence drawing on literature generated over the years on the subject. It also
analyses various elements of judicial independence and how this can lead to better
outlook in terms of rule of law.

Chapter 3: The nature and scope of the rule of law and judicial independence:
functions to realise the rule of law

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This chapter involves an examination of the nature and scope of the rule of law as well
as the requirements or conditions for the rule of law to work or to be applied as it
should. This examination will also extend to an enquiry into the requirements for judicial
independence. It also portrays the ideal situation in light of the requirements for proper
upholding the rule of law. This chapter also establishes the relationship between rule of
law and judicial independence.

Chapter 4: The role of judicial independence in realising the rule of law

The scope of this Chapter will examine the nature of rule of law and judicial
independence in Zimbabwe as well as comparatively with reference to selected
countries abroad. This will involve addressing questions such as what is the nature of
the rule of law and the function of judicial independence. It will also involve providing
reasons for the decline of the realisation of both the rule of law and judicial
independence in Zimbabwe.

This chapter also seeks to illustrate, in an objective way, the present shortcomings in
the application of the doctrine of the rule of law and one of the instruments to realise
the rule of law – judicial independence – in Zimbabwe. In other words, it highlights and
raises awareness on the negative or dangers which arise as a result of
non-adherence to the rule of law.

This chapter will further deal with two of the fundamental pillars of a democratic society:
respect for the rule of law and the effective protection of human rights, through the
independence and impartiality of the judiciary. It will then describe the role played by
judges, prosecutors and lawyers in this regard; and secondly, it will focus on the various
legal limitations on, and de facto threats to, the ability of judges, prosecutors and
lawyers to exercise their professional responsibilities in an independent and impartial
manner.

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Finally, this chapter will analyse the existing international legal standards relating to the
functioning of the legal profession. It will also include an examination of selected
relevant case-law from other jurisdictions as well as having instances where
constitutionalism is there in abstract but can be suspended arbitrarily.

Chapter 5: A case study highlighting the weakening and undermining of the

judicial and the erosion of the rule of law in Zimbabwe since 2000

This chapter involves an examination of the steady erosion of the rule of law and judicial
independence since 2000 to date. Analysis of events from that period will be highlighted
containing various comments from authorities on whether the rule of law and judicial
independence was upheld in Zimbabwe. This chapter will also elaborate on the
significance of the year 2000 and the reason why the researcher chose that date as the
starting point for his enquiry. The events of that time will be highlighted and how these
therefore, had a bearing in changing the philosophical outlook on the rule of law and
judicial independence in Zimbabwe.

Chapter 6: A comparison of Zimbabwe and other legal systems in countries such

as South Africa, Malawi and India pertaining to judicial Independence and the
rule of law

This chapter explores in-depth the judicial independence and rule of law in South Africa,
Namibia and India as well as the factors which might have enabled those legal systems
to be perceived better and have more clout.

Chapter 7: Conclusion, findings and recommendations on judicial independence

as a mechanism to realise the rule of law in Zimbabwe

In this chapter the study will look into the measures that can be taken to ensure a return
to the rule of law and judicial independence in Zimbabwe.

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The study will also enquire into the present safeguards and measures already in place
and whether they are effective enough to sustain the rule of law and judicial
independence in Zimbabwe. Once again, comparisons with other jurisdictions are made
to ascertain which measures they have adopted to ensure that both the rule of law and
judicial independence are sustained. In addition, this final chapter will summarise the
most important content of this enquiry and the key issues to emerge from the study.
Recommendations are also given.

The chapter concludes by stressing that independent courts are essential for the
realisation of the rule of law though there are some critics who are of the view that
judicial independence is not always necessary for the rule of law. Respect for
fundamental rights contributes to ensuring both the rule of law and the independence of
the judiciary.

Judicial independence is widely considered to be a foundation for the rule of law and
establishing judicial independence in developing and transition economies has become
a major goal. Another explanation offered is that an independent judiciary is politically
attractive and is a more strong position to uphold the rule of law because this kind of
judicial order, by making policy harder to change, make legislative bargains between
politicians and interest groups more durable and hence more valuable to politicians. 65

1.12 Key terms and definitions

For clarity of meaning, the following key terms that will be used in this thesis are
defined:

Absolute (constitutional) supremacy refers to a doctrine whereby the constitution is

the supreme law of the land and the government rules in accordance with the
constitution and at the same time the power of the government is limited by the
constitution in order to escape a type of tyrant, and the rule of law is prevailing.

65 Constitution in transition (Academic Inputs for a New Constitution in Zimbabwe) 2009.

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In an absolute constitutional supremacy, no laws can violate a nation’s constitution and
the courts have the final say and can strike down laws posted by the legislature when
such laws are not in conformity with the constitution.66

Constitutional democracy is where the centre piece of a country’s democracy is; the
supreme law of the land which is the constitution. In other words, it refers to a system of
government based on popular sovereignty in which the structures, powers and limits of
government are set forth in the constitution.67 Thus, the constitution of that particular
state is supreme law and all executive powers limited by it and exercised in terms
thereof.

Constitutional law as a class of law and branch of study, defines the role, powers, and
a structure of different entities within a state namely the executive, the parliament, or
legislature.

Democracy refers to a government by the people or a form of a government in which

the supreme power is vested in the people and exercised directly by them or by their
selected agents under a free electoral system.68 In other words, it refers to a
government by the people, either directly or through representatives.69 This is the type
of a government that is expected, ideally, to sustain and ensure the observance of the
rule of law and independence off the judiciary.

Democratic society is a society that is premised on democracy (thus, democratic),

constitutional law and constitutional democracy. It means and refers to such a society a
society in which all adults have easily accessible, meaningful, and effective ways:

66 Linington G Constitutional law in Zimbabwe (Legal Resources Foundation Harare 2001).

67 Greg Linington, Constitutional law in Zimbabwe, Legal Resources Foundation 2001.
68Hans – Peter Scheneider: Rule of Law or Rule of Judges? Problems of an Independent Judiciary:-
Constitution in Transition – Academic inputs for a New Constitution in Zimbabwe 2012.
69 Black’s Law Dictionary at page 464.

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1. to participate in the decision-making processes of every organization that makes
decisions or takes actions that affect them, and;
2. to hold other individuals, and those in these organizations who are responsible
for making decisions and taking actions, fully accountable if their decisions or
actions violate fundamental human rights, or are dishonest, unethical, unfair,
secretive, inefficient, unrepresentative, unresponsive or irresponsible;
so that all organizations in the society are citizen-owned, citizen-controlled, and
citizen-driven, and all individuals and organizations are held accountable for
wrongdoing.70

International law may be defined as the body of rules and principles of action which
are binding upon civilized states in their relations with one another.

Judicial independence can be understood as the independence of the institution of the

judiciary and also the independence of the judges which forms a part of the judiciary. It
need not be assumed, Waldron claims, that justice is a creation of the courts alone.
Though this seems a basic assumption of the “rule of law as the rule of just law”, it is not
uncontroversial.71

Judicial reform (also called legal sector reform) refers to efforts to improve the
functioning of a country’s legal system, both in terms of fairness and efficiency. The
legal system encompasses the entire legal framework, including the constitution,
statutes, regulations, customary law and international legal obligations, as well as other
institutions that interact to form the judicial process. Judicial reform is currently a priority
in societies seeking to democratise their political system, and among donors seeking to
favourably impact democratic reforms.

70 http://www.dwatch.ca/democracy.html accessed on 12 November 2018

71Jeremy Waldron, “Rights and Majorities: Rousseau Revisited,” Liberal Rights (New York: Cambridge
University Press; 1993) pp 417-18.

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Rule of law means that no person or body is immune to the law. According to A. V.
Dicey the rule of law means equality before the law, or the equal subjection of all
classes to the ordinary law of the land administered by the ordinary law courts. In other
words, rule of law is the legal principle that law should govern a nation, and not arbitrary
decision by individual government officials. It primarily refers to that influenced authority
of law within society, particularly as a constraint upon behaviour including behaviour of
government officials. The concept of the rule of law implies that every citizen is subject
to the law, including law makers themselves.72

Separation of powers means is a model for the governance of a state. The model was
first developed in ancient Greece and came into widespread use by the Roman
Republic as part of the unmodified Constitution of the Roman Republic. Under this
model, the state is divided into branches, each with separate and independent powers
and areas of responsibility so that no one branch has more power than the other
branches. The normal division of branches is into an executive, a legislature, and a
judiciary.

For similar reasons, the concept of Separation of church and state has been adopted in
a number of countries, to varying degrees depending on the applicable legal structures
and prevalent views toward the proper role of religion in society.73 There is no liberty if
the power of judging be not separated from the legislative and exceptive powers. Were
it joined the Legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would be then the legislator. Were it joined with the executive
power, the judge might behave with all the violence of an oppressor.74

72Wade and Phillips, Constitutional and Administrative Law, 10th Edition, Longman, London and New
York,1985 at p94.
73The terms is ascribed to French Enlightenment political philosopher Baron de Montesquieu- See Peter
Barenboim, Biblical Roots of Separation of Powers, Moscow, Letny Sad, 2005. ISBN 5-94381-123-0,
Permalink: http://lccn.loc.gov/2006400578.
74Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 1 (The Spirit of Laws) [1748]
The Spirit of Laws is Montesquieu’s best known work in which he reflects on the influence of climate on
society, the separation of political powers, and the need for checks on a powerful executive office.

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1.12 BIBLIOGRAPHY

1.12.1 Books

Allan TRS Law, Liberty And Justice: Legal Foundations Of British Constitutionalism
(Clarendon Press Oxford England 1993)

Bingham T The Rule of Law London (Allen Lane 2010) [Do not place full stops in your
bibliography.]

Bretly T, An Introduction to the International Law of Peace 6th ed (Clarendon Press

Oxford).

Chandra LS (ed) Peace Building and Rule of Law in Africa: Just Peace? (Routledge
New York 2010)

Dicey AV Introduction to the study of the Law of the Constitution (Macmillan London
1897, 1927 & 1960).

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Fish, M. S. and M. Kroenig (2009). The Handbook of National Legislature: A Global
Survey. Cambridge: Cambridge University Press

Fuller L, The Morality Of the Law (Rev. ed. 1977).

L

Linington G, Constitutional law in Zimbabwe (Legal Resources Foundation Harare

2001).

Madhuku L, An Introduction to Law in Zimbabwe (Weaver Press Harare 2010).

Mathews A S, Freedom, State Security and the Rule of Law: Dilemmas of the Apartheid
Society (Juta Cape Town 1986).
Minxin P Does Legal Reform Protect Economic Transactions? Commercial Disputes in
China, in Assessing the value of law in transition economies in Anon Peter Murrell (ed)
(2001).

Ncube W State security, the rule of law and politics of repression in Zimbabwe (Division
of North/South University Cooperation University of Oslo 1990).
S

Saller K ,The Judicial Institution in Zimbabwe (Siber Ink Cape Town 2004).

Schreiner OD The Contribution to South African Law; and the Rule of Law in South
Africa (Juta Cape Town 1967).
W

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Wade and Phillips Constitutional and Administrative Law 10th ed (Longman London and
New York 1985).

Waldron J Rights and Majorities: Rousseau Revisited Liberal Rights (Cambridge

University Press New York 1993).

1.12.2 Journal Articles

Anon “Regimes and the rule of law: Judicial independence in comparative perspective”
2009

Annual Review of Political Science 12 345-366.

Anon “Rights here and there” Columbia Law Review Vol 81 1582.

C
Chauke F “A Critical Analysis of the Freedom of Expression and the Rule of Law in
Zimbabwe: The Need to Reform” (Unpublished located in the University of Zimbabwe
Law Library).

Chen AYH “Toward a legal enlightenment: Discussion in contemporary China on rule of

law” 2000 17 UCLA PAC BASIN L. J. 125 131.
Cremona M “Regional integration and the rule of law: Some issues and options, in
bridges for development” Devlin & Estevadeordal, (eds) 2004 Inter-American
Development Bank 137-160.

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F

Fish, M. S. (2006). Stronger legislatures, stronger democracies. Journal of Democracy

17(1) 5-20.

G
General Council of the Bar The State of Justice in Zimbabwe” December 2004

Guido Bertucci and Elia Yi Armstrong. “United Nations Involvement in Promoting

Government Ethics” in Yassin El-Ayouty, et al, ed. Government Ethics and Law
Enforcement: Toward Global Guidelines (Westport, CT: Praeger, 2000).

H
Hanssen FA “Independent Courts and Administrative Agencies: An Empirical Analysis of
the States” 2000 16 (2) Journal of Law, Economics and Organization.

Hope Sr, Kempe Ronalde. “Corruption in Africa: A Crisis in Ethical Leadership” in Public
Interest (Vol. I, No. III, Summer 1999), p. 289 – 308.

Jensen EG and Heller TC (eds) “Beyond common knowledge: Empirical approaches to

the rule of law” 2004.

K
Kanongolo FE “Malawi: justice and the rule of law” 2006 Braamfontein, Open Society
Initiative for Southern Africa London: AfriMAP, Open Society Foundation.

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Madhuku L, “Law, Politic and the Land Reform Process in Zimbabwe” _ (Unpublished
located in the University of Zimbabwe Law Library).

Madhuku L, “The Appointment Process of Judges in Zimbabwe and its Implications to

the Administration of Justice” 2010 (Unpublished located in the University of Zimbabwe
Law Library).

Madhuku L, “The Constitution and The Independence of the Judiciary: A Survey of the
position in Southern Africa” _ (Unpublished located in the University of Zimbabwe Law
Library).

Mataka, I., Land Reform versus Rule of Law: A Review of the concepts in light of recent
developments in Zimbabwe _ (Unpublished located in the University of Zimbabwe Law
Library).

Mauro, Paolo,. “Corruption: Causes, Consequences, and Agenda for Further

Research” in Finance & Development (Vol. 35, No. 1, March 1988).

Monteiro O et al, “Mozambique: justice sector and the rule of law” 2006, Open Society
Initiative for Southern Africa, AfriMAP London, Open Society Foundation Braamfontein.

R
Rafael La Porta et al “Judicial checks and balances” 2004 Journal of Political Economy
112 (2).

Rosenfield M Southern California Law Review Vol. 74:1307

S
Schneider HP “Rule of Law or Rule of Judges? Problems of an Independent Judiciary:
Constitution in Transition – Academic inputs for a New Constitution in Zimbabwe” 2012
Harare (unpublished located in the University of Zimbabwe Law Library).

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T

Tsunga A “The legal profession and the judiciary as human rights defenders in
Zimbabwe: Separation or consolidation of powers on the part of the State?” 2003
Zimbabwe Lawyers for Human Rights (unpublished located in the University of
Zimbabwe Law Library).

Ugo Mattei “A Theory of imperial law: A study on U.S. hegemony and the Latin
resistance” 2003 10 IND. J. GLOBAL LEGAL. STUD. 383.

Whitehead J “Toward a Critical Theory of the Rule of Law: A Review of William E.

Scheuermans- Between the Norm and the Exception” 2001 26 OKLA CITY U. L. REV.
663.

Widner J “Building the Rule of Law: Francis Nyalai and the Road to Judicial
Independence in Africa” 2000 New York: W.W. Norton.

Yu H and Guernsey A “The Rule of Law as a Goal of Development Policy” _ World Bank
paper.

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1.12.3. Case Law

AXA General Insurance v Lord Advocate (2011) UKSC 46, para 51

Commercial Farmers Union v Minister of Lands & Others 2000 (2) ZLR 469 (S).

D
Davies & Ors v Minister of Lands and Agriculture & Water Development 1996 (1) ZLR
81 (S).

Minister of Lands, Agriculture and Rural Resettlement & Ors v Commercial Farmers
Union 2001 (2) ZLR 457 (S).

Quinnell v Minister of Lands and Rural Resettlement S-47-2004.

1.12.4. Press articles

C
Cathy Holcombe, Transparency and strong rule of law are key to fighting corruption -
This article appeared in the South China Morning Post print edition as Rule of law vs
urge to purge, 17 September 2014

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D
Daily Telegraph (UK), 17 June 2003.

Daily News (Zimbabwe), 17 August 2002.

Financial Gazette (Zimbabwe), 25 January 2001.

1.12.5 Reports, Academic Papers, and Theses

5.1 Reports

5.1.1 American Bar Association

The Rule of Law in the United States: (Survey by the American Bar Association,
Committee to cooperate with the International Commission of Jurists, Geneva: The
Committee 1963.

5.1.2 International Congress of Jurists

The International Congress of Jurists, The Rule of Law in a free Society (Report on the
International Congress of Jurists, New Delhi [Geneva] International Commission of
Jurists in association with the African Bar Association and the All-Africa Conference of
Churches 1959).

5.1.3 International Bar Association

The critical situation faced by judges and lawyers in Zimbabwe (Report by the
International Bar Association, April 2001).

5.1.4 Legal Resources Foundation

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Justice in Zimbabwe (Report by the Legal Resources Foundation, Zimbabwe,
September 2002).

5.1.5 Parliament of Zimbabwe Portfolio Committee on Lands, Agriculture Water

Development Rural Resources and Resettlement

Parliament of Zimbabwe Portfolio Committee on Lands, Agriculture Water Development

Rural Resources and Resettlement “Second Report December 2004”

5.1.6 United Nations

In Larger Freedom: Towards Development, Security and Human Rights for All (United
Nations Secretary General’s Report A/59/2005).

International IDEA, A Practical Guide to Constitution Building: Principles and Cross-

cutting Themes, Stockholm 2012, pp. 17-18

International IDEA, Electoral Justice: The International IDEA Handbook, Stockholm

2010, p. 9,

Strengthening and coordinating United Nations Rule of Law Activities (United Nations
Secretary General’s Annual Report A/64/298).

Strengthening and Coordinating United Nations Rule of Law Activities (United Nations
Secretary General’s Report A/63/226).

The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (United
Nations Secretary General’s Report S/2004/616).

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Tommasoli M. UN CHRONICLE, The Magazine of the United Nations, Rule of Law and
Democracy: Addressing the Gap between policies and practices.

Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law (United
Nations Secretary General’s Report A/61/636).

5.1.7 Zimbabwe Human Rights NGO Forum

Politically motivated violence in Zimbabwe 2000–2001: A report on the campaign of

political repression conducted by the Zimbabwean Government under the guise of
carrying out land reform (Report by the Zimbabwe Human Rights NGO Forum Harare,
August 2001).

1.12.6 Websites frequently consulted

www.zimbabwesituation.com/VIPfarmallocations.pdf

http://lccn.loc.gov/2006400578

www.barcouncil.co.uk

www.parlzim.gov.zw/Whats_new/Order_paper/december2004/20december2004.htm

www.ibanet.org/humanrights/Zim.cfm.9JusticeinZimbabwe(2002)

www.newworldencyclopedia.org/entry/Democracy

www.parliament.uk

http://www.idea.int/publications/pgcb/

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http://www.idea.int/publications/electoral_justice/

http://www.dwatch.ca/democracy.html

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