MIDLANDS STATE UNIVERSITY

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF POLITICS AND PUBLIC MANAGEMENT

HONOURS DEGREE IN POLITICS AND PUBLIC MANAGEMENT

DISSERTATION TOPIC

THE NEXUS BETWEEN THE DOCTRINE OF SEPARATION OF POWER AND

THE JUDICIAL INDEPENDENCE, CASE OF ZIMBABWE (2000-2016)

By

SHEPHERD CHINGWERE

R162792Z

A Dissertation submitted to the Midlands State University in partial fulfilment of the

requirements for the Bachelor of Social Sciences Degree in politics and public
management

SUPERVISOR: PROFF P CHIGORA

 APPROVAL FORM

In partial fulfilment of the requirements for the Bachelor of science degree in politics and
public management degree, the undersigned certify that they have supervised, read and
recommended to the Midlands State University (MSU) a dissertation titled: THE NEXUS
BETWEEN THE DOCTRINE OF SEPARATION OF POWER AND THE JUDICIAL
INDEPENDENCE, CASE OF ZIMBABWE (2000-2016) Submitted by: CHINGWERE
SHEPHERD(R162792Z)

SUPERVISOR PROFF P. CHIGORA

DATE ………………./…………../2020

CHAIRPERSON ………………………………………………

DATE …………/…………/………….

LIBRARIAN …………………………………………

DATE …………./…………………/2020

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 RELEASE FORM

I certify that the following student:

………………………………………………………………………..

Student Number ---------------------------------------was under my supervision. I further certify

that he has fulfilled all the requirements that I set before him as the supervisor. It is my
professional judgment that the dissertation is of a sufficiently high standard as to be
submitted with my name attached to it as the Supervisor.

I hereby release the student without reservation to submit her dissertation for marking.

Name of Supervisor: Proff P CHIGORA

Signature :……………………………………

Date :………………………………….

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iv
 DECLARATION

I, SHEPHERD CHINGWERE(R162792Z), hereby declare that this dissertation titled:

‘THE NEXUS BETWEEN THE DOCTRINE OF SEPARATION OF POWER AND THE
JUDICIAL INDEPENDENCE IN, CASE OF ZIMBABWE (2000-2016) ’ is my own work
and has not been copied from any source without acknowledging the source or submitted
before for any other degree or examination at any other university. I hereby cede to the
Midlands State University library all the intellectual property rights attaching to this
dissertation. As the owner of the copyright over this work, the University may store, publish
or otherwise distribute the entire volume or parts thereof of this work as its discretion will
dictate.

……………………. ……………../……../2020

Signed

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 DEDICATION
To the Almighty Heavenly Father my provider. You were so faithful to me in this academic
pursuit and also in my life. You blessed my mind as I study. My life is therefore a testimony
of your love and I am amazed by what you have done to me. You have raised me from the
grass to where I am now.

To my late mother Claris Chingwere, my brother Farai Chingwere, family and friends who
showed me a lot of love. God bless you all.

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 ACKNOWLEDGEMENTS
Thanks to God who made this possible through strengthening and guiding me, without the
Lord I would never have been able to achieve any of this. I am everlastingly grateful for His
love.

Profound gratitude goes to my relatives who always supported me throughout the years of my
study. To my beloved brother and uncles, thank you for the love, warmth and advices
concerning life; you always encouraged me to be someone and you never stopped believing
in me. To Proff Chigora my supervisor, thank you for guiding me throughout my research, I
acknowledge my gogo Mai Max Manungo, brother’s wise Sibongile Matambo and friends,
Tawana Manungo I am very grateful. You played an important role and laboured to make my
goal of becoming a Politics and Public Management degree holder achievable. I will always
love you guys

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 ABBREVIATIONS

AIPPA Access to Information and Protection of Privacy Act

ANZ Associated Newspapers Zimbabwe

CJ Chief Justice

CCI Constitutional Commission of Inquiry

CZI Confederation of Zimbabwean Industries

GNU Government of National Unity

GPA Global Political Agreement

JSC Judicial Service Commission

MDC Movement for Democratic Change

MDC-T Movement for Democratic Change led by Mr. Morgan Tsvangirai

MIC Media Information Commission

POSA Public Order and Security Act

ZANU (PF) Zimbabwe African National Union Patriotic Front

ZEC Zimbabwe Electoral Commission

ZIDERA Zimbabwe Democracy Recovery Act ZLHR Zimbabwe Lawyers for

Human Rights

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 ABSTRACT
The research explored the relation between the separation of power principle and the

independence of the judiciary. This study was conducted towards the argument that

separation of power has undermined the independence of the judiciary and the ongoing

relationship within the three branches of government. In this context, the research also looks

at the constitution that gave the executive branch the power to override the judicial arm's

activities to the extent that the judiciary ends up functioning as the executive's extension.

The main cause of the judiciary's inability to assert its authority in the separation of powers

was the fact that the constitution was rife with the clauses that allowed the president to

intervene with the judiciary's activities. There are so many incidents and cases in the study

that the judicial independence has been hampered, such as fast-track land reform programme,

electoral violence and so many political cases, which still demonstrate that separation of

power enables the Executive to intervene in the judiciary, So many cases have been

witnessed passing verdicts in favour of the government or the ZANU PF party, such as the

case of Mutasa and Gumbo. The aim of this research is to attempt to come out with

suggestions to preserve the ongoing relationship between separation of power and judicial

independence in Zimbabwe and to highlight the connection between the doctrine of

separation of power and judicial independence. The researcher calls for further strengthening

the independence of the judiciary by including provisions that separate the executive and the

legislature from the judiciary's activities and also provide for the protection of the judiciary.

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 TA BLE OF CONTENTS

Approval Form ii
Release Form iii
Declaration iv
Dedication v
Acknowledgments vi

Abbreviations vii
Absract viii
Table of contents ix
CHAPTER 1: INTRODUCTION 1
1. Introduction 1
1.1 Background of study 2
1.2 Statement of the problem 4
1.3 Research objectives 4
1.4 Research questions 4
1.5 Significance of study 5
1.5.1 Justification of study 5
1.6 Theoretical framework 6
1.7 Literature review 7
1.8 Methodology 9
1.8.1Research design 10
1.8.2 Data collection and methods 10
1.8.3Purposive sampling 11
1.8.4 Key Informant and In-depth Interviews 11
1.8.5Document reviews 11
1.9 Limitations 12
1.9.1 Delimitations 12
Structure of the study 13
CHAPTER 2: BACKGROUND OF SEPERATION OF POWER AND JUDICIAL
INDEPENDENCE 14
2.1 Introduction 14
2.2 The Doctrine of Separation of Power 14
2.3 Overview of Zimbabwe's Theory of Power Separation 16

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 2.4 Seperation of power in Africa 20
2.5 Realism theory 21
2.6 Judicial Independence 22
CHAPTER 3: NEXUS BETWEEN SEPERATION OF POWER AND JUDICIAL
INDEPENDENCE 24
3.1 The state of Independence of Judicial in Zimbabwe 24
3.2 Judicial Independence vis-à-vis Seperation of power 29
3.3 Factors affecting Judicial Independence and Seperation of power in Zimbabwe 31
3.4 Nexus of Seperation of power and Judicial Independence in Africa 32
3.5 The Judicial Service Commission in Zimbabwe 34
CHAPTER 4: THE FUTURE OF JUDICIAL INDEPENDENCE AND
RECOMMENDATIONS 36
4.1 Judicial Activism 36
4.2 Judicial Independence vs Political cases 36
4.3 Recommendations 40
CHAPTER 5: CONCLUSION 42
Conclusion 42
Bibliography 44

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 Chapter 1

Introduction
The purpose of this research is to dissect the nexus between the doctrine of separation of power
and judicial independence from 2000 to 2016. The independence of the judiciary is a logical
corollary of the doctrine of separation of powers in that vesting of judicial functions in a body of
persons separate from the executive and legislative can only have real meaning if that body of
persons is truly independent. Virtually all constitutions pay some regard to the doctrine of
separation of powers and extent to which a constitution guarantees the independence of the
judiciary is usually a good measures of the seriousness with which the doctrine of separation of
powers is taken, there is a number of features which determine the extent of independence of the
judiciary and these includes the method of appointment of judges, the removal of judges from
office, whether or not the judiciary has exclusive jurisdiction over judicial matters and the
question of salaries payable to judges
The three branches of the government that makes governing of the state democratic are
Executive, which is the branch that executes the business of government. It comprises the
President, Vice-Presidents and Ministers, the Public Service, the Defence Forces, the Police
Force and other law-enforcement organisations. All the administrative, law-enforcement and
coercive organs of the State fall within the Executive Branch, making it potentially the most
powerful of the three branches of government unless its powers are subject to limitations. The
Legislature, which is the law-making branch. In Zimbabwe it consists of the Senate and the
House of Assembly. The Judicial Branch, which interprets the law. It comprises judicial officers
and the courts over which they preside. In Zimbabwe the courts are divided into superior courts,
namely the Supreme Court and the High Court, and the lower courts, which are principally
magistrates’ courts and customary-law courts. There are also specialised courts such as the
Administrative Court, the Labour Court and the Fiscal Appeal Court. If one of these branches
encroaches upon the functions of the others, so the doctrine goes, freedom and the rule of law are
imperilled. If, for example, the Executive (i.e. the President or a Minister) makes laws and
enforces them, then we no longer have the rule of law. Zimbabwe experienced political crises
that include violation of human rights, contested polls to mention just a few. These quandaries
had a major and negative impact while only a few saw a shed of positivity on the bench. The

1
study brings to light the nexus between judicial independence and separation of power and how
this has negatively affected its constitutional mandated duties.

1.1 Background of study

In essence, the opposition politics in and democratic governance in Zimbabwe have been
characterised with many objectives and in some cases it base changed the political sphere in
Zimbabwe since the formation of the main opposition in the country. The main objective of the
opposition politics in Zimbabwe is to prevent the abuse of power within different spheres of
government. In our constitutional democracy public power is subject to constitutional control as
well as to change the old system of election to ensure fair elections. Different spheres of
government should act within their boundaries. The courts are the ultimate guardian of our
constitution, they are duty bound to protect it whenever it is violated. Moseneke CJ (South
Africa) also stated that the courts are more likely to confront the question of whether to venture
into the domain of other branches of government while performing their functions as entrusted
by the constitution. Within the context of the doctrine of separation of powers the courts are duty
bound to ensure that the exercise of power by other branches of government occurs within the
constitutional context. The courts must also observe the limit of their own power.

Chapter 8 section 164 of the Constitution of Zimbabwe provides for Judicial Independence.
Independence is needed for the judiciary to execute its duties justly and without any intervention
and to act as the precursor for the general public Ajibola (1998:56) articulates that the idea of
judiciary proper functioning involves freedom to exercise its constitutional mandate without
external meddling. Judges are expected to be impartial and unbiased exercising their duties in the
absence of fear with appointment and removal from office carried out arbitrarily. It would also
be helpful if government agencies revere to judicial rulings.

In 2000 many judges challenged the constitutionality of the land reform programme and ordered
the people who had taken the lands belonging to the whites to leave within 24 hours and efforts
were made for the government to follow the right procedures if it really wanted to redistribute
land but the Executive branch never cooperated and proceeded with the implementation of the
policy. The judiciary ruled that the people who had engaged in the land invasion were to be
brought to justice and those who were arrested were to be charged for their wrong actions. In
response to this, the president issued the Clemency Order No.1 which granted amnesty to those

2
who had committed atrocities, tortured and assaulted people during the land invasion period and
ordered that no new investigations and prosecutions were to take place into their crimes. This
was also against the internationally set standards principle 2.24 of the Mount Scopus Approved
Reviewed International Standards of Judicial Independence of 2008 which stipulate that the
authority of pardon should be applied carefully so as to avoid its use as a rubber stamping tool in
the passing of judicial decisions. The executives’ action reduced the Judiciary to a mere
formality since its decisions were never considered.

Rugege (2005:414) articulates that in 2001, the then Chief Justice Gubbay, Justice Ebrahim and
a number of senior judges were harassed and forced to step down for attempting to refute the
unconstitutional move by the government that infringed citizens‟ rights with respect to the
seizure of white farms by the Mugabe regime. The war veterans disturbed the operation of the
judges by invading the Supreme Court and threatened to kill the judges in 2000, the Executive
never condemned their actions. The Human Rights Watch (2008) says after the resignation of the
majority of judges, the courts were packed with ZANU –PF members. Robertson (2014:5)
propounded that, since 2000, President Mugabe „bribed‟ the judiciary, packed the courts with
ZANU-PF cohorts and handed out pieces of land and goods to guarantee judges loyalty.
Landsberg (2007:334) goes on saying, it is also predictable that a judge whose decision rest upon
the good graces of the government is going to rule in favour of those who are in power thus
illuminating the dangers of the nomination of judicial officers by the ruling political party, on
this case ZANU-PF. Amnesty International quoted in Rugege (ibid) indicates that the
harassment of the judiciary in Zimbabwe continues, where there is crisis over the rule of law,
characterised by continual infringement of court orders, harassment of judicial officers and the
politicization of police remains unresolved. Matyszak (2006:334) in Manyatera and Fombad
(2014:90) states that the post 2000 political developments reinforced the conception that the
executive was packing the judiciary with political appointees.

There were election disputes in 2008 between President Mugabe and Tsvangirai of the main
opposition Movement for Democratic Change (MDC) and these disputes led to political
violence. Many people lost their lives and their properties were destroyed. During that time there
was „no justice under the law‟ because the judiciary failed to play its role effectively due to
political interference.
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1.2 Statement of the problem
The research seeks to scrutinize the opposition politics and democratic governance in Zimbabwe
and extend possible remedy to challenges affecting judicial independence in Zimbabwe. In
advancing its mandate judicial independence is of immense, the execution in Zimbabwean
environment has proved rather impediment filled. Major impediments being presented by the
executive itself as it seems to have taken quite a stance in meddling and intervening with the
proceedings of the judiciary often a number of times. For instance the land reform exercise of
2000 that affected the independence of the Judiciary through the prying of the other arms of
government. It turns out officials of the bench have had to succumb pressure from the executive
and have often had to indulge in illegitimate decisions and on this issue CJ Chidyausiku has to
say ‘another consequence of this development was a clear pattern of indigenisation of the
judiciary’.

In observing of a number of cases ran by the bench in Zimbabwe it have reflected that a
tremendous and perturbing singularity that has raised a lot of problems that undermines the
credibility of the judicial system as a whole. Contentions have been brought up that unlawful
pressure has gotten to most officers of lower courts from the executive and legislative impacting
greatly on their performance whilst in office.

1.3 Research objectives

This systematic investigation seeks to:

• To examine the opposition politics and democratic governance looking on separation of powers
and to have an understanding as to whether it has any effects on judicial independence

• To measure the level at which executive in terms of appointments affects members of the
bench in executing their duties.

• To evaluate how the executive and legislature impacts the judiciary in its pronunciations

• To endorse defensive strategies the judiciary can use to ensure it does not succumb to
pressure from the executive and the legislature as influenced by opposition politics.

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1.4 Research questions
Research seeks to answer the following questions:

1. What guarantee is there that the judges are impartial to the pressures and threats from the
executive and legislature when it comes to decision making processes?

2. Does executive and legislative influence pretentious execution of duties by members of

the bench and leave room for appropriate checks and balances against purely political
appointments

3. Have members of the bench ruled in favour of government when confronted with
politically related cases or cases that involves the executive members?

4. What can be done to guarantee judicial independence in Africa immune to the executive
and legislative pressures the continent is currently facing?

1.5 Significance of study

The significant of this research is to definitively ascertain the opposition politics and democratic
governance on issues of separation of power and judiciary independence from 2000 to 2018
which is the central question of this research. It is important to study the opposition politics and
democratic governance because it leads to the issues of the doctrine of separation of power and
judicial independence in this context because there is a gap of knowledge in the discipline of
how the judiciary independence is undermined and how it operates

1.5.1 Justification of study

The research seeks to fill the literature gap in the democratic governance of Zimbabwe. The
study intends to examine and attempt to address challenges associated with judicial
independence in Zimbabwe. This research will serve to add to the existing stock of knowledge
that has already been written by various scholars. Under normal circumstances the judiciary acts
as checks and balances to promote the idea of democracy and paving way for the advancement
of the principle of separation of power and this will prime to an in-depth understanding of the
degree to which the 2013 Constitution endorses the liberation of the judiciary system because
when the constitution was put into action, there was mixed perceptions towards the Constitution
pertaining the level to which it improved judicial independence in Zimbabwe. This is because a

5
sovereign judiciary system is one of the major tenets of a democratic government or good
governance as prescribed by the principle of separation of powers. Executive and legislative
intervention runs back to the executive powers which are responsible for patronage politics via
appointment of office holders and this has seen the rise of unjustified separation of powers.

The interest of the researcher lies in thoroughly investigating these matters and determining how
they affect democratic governance . The field of judicial independence is awash with
questionable matters and thus clarity is of essence. Hence the judicial independence requires
ideal scrutiny to determine if the judiciary is executing its responsibilities. There seems to be a
bone of contention when it comes to the impartiality of the judicial system in the eyes of the
international law. Ironically political holders appoint members of the judge and senior officers.
Most importantly it carries a key contribution to the University and government to the
development of governance in Zimbabwe and this study seeks to benefit political parties, policy
makers, academics, government and civil societies

1.6 Theoretical framework

This section intends to explore the principles that endeavour to explain opposition politics and
democratic governance because of that rule of law, separation of powers, judicial activism,
judicial immunity and judicial misconduct will be explored. These ideologies shall be deliberated
in the case of the judicial system of Zimbabwe

This research is also profound to make use of the elitist theory and realist theory in clarifying
how much weight the opposition politics has impacted in the democratic governance of
Zimbabwe. According to Martin Gilens and Benjamin (1994) the Elitist theory is a theory of the
state which seeks to describe and explain the power relationships in contemporary society. In this
regard experiences has reflected this to be true considering the governance in Zimbabwe
whereby judiciary independence appeared to be interrupted to pursue interest of the elite rather
state driven interest as a result there is biasness on issues which directly has an effect on them
hence it undermines the concept of rule of law.

However, for argumentative sake, the study will also factor in Realism theory which has a
propensity to argue against the doctrine of separation of powers. Mosely (2017) argues that
realist take as its assumption that power is (or ought to be) the primary end of political action,
whether in the domestic or international arena. In the domestic arena, the theory asserts that

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politicians do, or should, strive to maximize their power. By and large, politics is viewed as the
struggle for power and this entails that there always be struggle for power. The executive in
government will always want to stay in power as a result this will give birth to dictators for
instance the then president R.G Mugabe ruled the country for nearly four decades.

1.7 Literature review

The intentions of the researcher is to capture some of the literature put out by other authors on
the subject of the nexus between separation of power and judicial independence. The idea is to
have these writings in relation to the research questions. Sources will include scholarly books,
websites and journals. Literature review is of importance as it pushes the researcher to test the
study against what is known about the field of exploration. The modern design of the doctrine of
separation of powers is to be found in the constitutional theory of John Locke (1632-1704). In
his second civil government treaties, he wrote as follows: ‘It may be too great a temptation for
the humane frailty, apt to grasp at powers, for the same persons who have power of making laws,
to have also in their hands the power to execute them, whereby they may exempt themselves
from the law, both in its making and execution to their own private advantage’. Clearly, he
advocated the division of functions of government into legislative, executive and judicial
functions. However it is the French philosopher (jurist) Montesquieu (1689–1755) who is usually
credited with the first formulation of the doctrine of separation of powers. He based his
exposition on the British Constitution.

McNollgast (2006; 108) defines judicial independence as a product that develops from the
strategic affairs among the judiciary, legislature and the executive branch not the automatic result
of legal or legislative provisions that set up the tenure for judges, nor is judicial freedom limited
by the checks and balances or legal ethnicities. This means that even in Zimbabwe also, the
judiciary arm of state should be seen making decisions autonomously and separately from
meddling of other arms. This is also supported by Singh (2000; 247) when he notes that, judicial
independence primarily means the liberation of the judiciary from the executive and the
legislature. Rugege (2005) alludes that judicial independence is a collectively recognized
principle in democratic societies and also an obligation for a society to function on the basis of
the rule of law.

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 According to Robertson (2014; 19) ‟s view that, “States should take specific measures
guaranteeing the independence of the judiciary, protecting judges in their decision making
through the constitution. Ginsburg and Nyenge (2014; 25) allude that, “the scope of judicial
power and protections for judicial independence is defined by the constitution and can be a
contentious issue in constitutional design”. This means that for people to exercise their freedom
and rights without infringements there should be a constitution which fully promotes and
protects the independence of the judiciary. Redish (1999;2) states that the constitution plays a
important role in protecting the independence of the judiciary because it provides certain grounds
under which the judicial officers can be removed from their positions as well as providing
avenues of judicial discipline. Constitution of Zimbabwe has been described as the supreme law
of the land in Zimbabwe thus no other law is above it. The Constitution I turn provides for
judicial independence as noted in Amendment 20 in Chapter 8 Section 164. It affords that
independence and impartiality of the bench are fundamental to the rule of law principle and
democratic governance.

Subsection 164 stipulates that,” The courts are independent and are subject only to this
Constitution and the law, which they must apply impartially, expeditiously and without fear,
favour or prejudice.” As subsection 2(a) puts it, “Neither the state nor any institution or agency
of the government at any level and no other person, may interfere with the functioning of the
courts”. This clearly places emphasis on the importance of the principle of separation of powers
to judicial independence. The justice must not be delayed and end members of the bench ought
to conduct and execute their duties with the highest level of competence and within a judicious
tardiness. This is emphasised in section 165(1b) of Chapter 8. To top it all, the Constitution is
entrusted solely with the power to give the President the mandate to nominate or appoint judges
as provided for in Section 180 of Chapter 8.The supreme law intends to safeguard the proper
execution of duties of the members of the bench shielding them from coercion and interference.
Despite the fact that this provision is highlighted in the Constitution, the actual occurrences
somewhat differ. The independence of the judiciary was almost undermined by an indistinct
separation of powers. For instance the issue of loyalty to the executive come into play and
therefore in as much as the Constitution guarantees judicial independence, appointment and
removal of judges, special provisions protecting the bench from the manipulations of the
executive when confronted by politically related cases.

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The first principle of the Latimer House Principle on the Three Branches of the Government
(2003; 10) states that judicial activities should be made on the basis of clarified standards and by
a publicly established process, appointment on excellence and equality of opportunity for all who
are competent for judicial office. Bridge (2007; 80) states that judges should be chosen
exclusively on merit, from qualified persons of exceptional character with respect to the need to
encourage diversity. Rugege (2007; 417) has it that the way that judges are appointed has a
bearing on their freedom, so it is the duty constitution to clearly specify how the judges should
be selected so as to protect the freedom of the judiciary. Linnington (2001:165) perceives that
presidential appointments raise a lot of eyebrows leaving the whole process suspicious by nature.
Clearly the provision in the Constitution for judicial independence is merely based on principle
rather than practicality leaving room for a plethora of loopholes that leave the judicial system
vulnerable. There is room in the procedure for the appointment of judges to affect the
independence of the courts. The fact that the executive appoints persons other than those put
forward by the Judicial Service Commission even after consultation makes it prone to
manipulation. However it is assuring knowing that where the President has abused his powers
and Parliament agrees, it can remove him from office or pass a vote of no confidence. Linington
further discusses judicial independence in relation to absence of immunity. Dissimilar to the
executive, the bench is not immune to criminal and civil proceedings during their tenure. Unless
the judiciary is protected it is substantially endangered by the executive and the legislature.

Alexander and McGregor (2013) write that after 2000, the rule of law was deeply compromised
by ZANU(PF)’s politicization of the judiciary together with economic decline, growing
corruption and the partisan distribution of resources in return for ZANU(PF) loyalty. This
indicates that members of the judiciary were political and performed as such. Hence the problem
came from the fact that the executive had amassed power to the point where it could control both
the judiciary and the legislature without directly changing the constitution of Zimbabwe. This is
true as we look at the ability of the executive to appoint members of the judiciary who pay
homage to the President which means there has been less meritocracy and more patronage in the
halls of government.This indicates that members of the judiciary were political and performed as
such. These examples suggest that, even when a principle lacks specific legal status, it still may
be an essential part of our constitutionalism, an indispensable touchstone for evaluating the
operation of the judiciary and its independence.

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1.8 METHODOLOGY
Research methodology refers to the way of solving a research problem systematically Smith
(2013). To explore the research on the nexus between separation of power and Judiciary
independence in Zimbabwe. During the research and process of gathering data the researcher
will conduct interviews, use focus group discussions, documentary research and public sector
entities.

1.8.1RESEARCH DESIGN
Qualitative research methods are an appropriate research technique as there is room for probing
the respondents in addressing the impact of separation of power on judiciary independence.
Mason (2002) alludes that qualitative generation of data is based on the sensitivity in the social
context as views on the area under study is brought out. It is effective in the sense that it allows
a sense of openness and there is room for probing which creates various aspects that would have
been generated. Small samples can be used when it comes to the qualitative research methods.
The research method gives room to get first- hand information and the full expression of a
particular correspondent during the collection of data. The researcher choice a particular research
design will ensure effective compilation, conduction and analyses of information obtained under
the area of study. The research design chosen will guide and answer the research questions that
were set. This was set to meet particular objectives. This shows that the research design that was
selected will fit the research under study.

1.8.2 DATA COLLECTION AND METHODS

The outcome of the research is guided by research data collection. Continuous collection of data
ensures its effectiveness. Data collection accordingly is the process where one gathers
information on a particular study. It is a significant aspect as it addresses the issues concerning
the particular subject matter as views and theories are created and observed. Qualitative research
methods give an insight and depicts feelings of a particular research. The research will utilize
qualitative research methods which include conducting interviews, use focus group discussions
as there is room for probing and questionnaires distribution in communities and also utilizing
desk research.

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1.8.3Purposive sampling
Thornhill, A. (2012 believed purposive sampling is a non-probability sampling method and it
occurs when “elements selected for the sample are chosen by the judgment of the researcher.
Researchers often believe that they can obtain a representative sample by using a sound
judgment, which will result in saving time and money. It is in this regard that purposive sampling
will be one of the most cost-effective and time-effective sampling methods to the study

1.8.4 Key Informant and In-depth Interviews

This study will make use of in-depth interviews with key informants being drawn from the
judicial system, mainly magistrates and also lawyers. These interviews will help to elucidate
information from knowledgeable respondents who have vast relevant opinions on the topic of
judicial independence. The researcher will also make use of quota sampling which is a
nonprobability method. This sampling technique will be used as it is a flexible method and is
typical of specific groups. In-depth interviews are important as they clearly highlight critical and
relevant hidden data from the respondent by making use of open ended questions in the
interviews. This method would be appropriate in this study because the topic of judicial
independence is a sensitive and controversial issue, thus, it would give respondents time to share
their opinions without interference.

1.8.5Document reviews
Document review is the process in legal industry where each party reviews documents for
relevance by Christopher Aiden 2014. The main objective of document review is to analyse
documents and decide whether or not they're "responsive" or "non-responsive" as they relate to a
specific legal case or dilemma.

Essentially, initial level of document review is recognition phase where attorneys or lawyers
study the relevance and responsiveness of documents, using information about the evidence of
the case as well as issues of law. Second steps of document review evaluate whether a document
is privileged and may be either withheld from production or redacted for content. The actual
review of the documents is completed either electronically or manually.

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1.9 LIMITATIONS

The topic under study is very broad and will require information to with the executive, the
legislature and the judiciary. Therefore the limitations that are likely to be faced are to do with
accessing relevant officers from all three branches for information to do with their experiences
with other branches of government.

1.9.1DELIMITATIONS

The main focus of the research is on judicial independence preresiquite of a society with
democracy and its nexus with separation of powers and the rule of law will be explored. In as
much as this study is about the Judiciary secondary attention will be given to the other arms of
government that is the Executive and the Legislature and discussions will be held in passing to
try and capture understanding of all three arms of government. The Focus of the researcher will
be on Zimbabwe.

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STRUCTURE OF THE STUDY

The structure that is to be used under the area of study will be shown below;

CHAPTER 1: Introduction

CHAPTER2: Background of the doctrine of separation of power and Judicial Independence

CHAPTER 3: The nexus between the doctrine of power and Judicial Independence

CHAPTER 4: The future of the Judicial Independence and Recommendations

CHAPTER 5: Conclusion

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 CHAPTER 2

BACKGROUND OF SEPERATION OF POWER

2.1 Introduction
The intentions of the researcher in this chapter are to capture some of the literature put out by
other authors on the subject of separation of power on judicial independence. The idea is to have
these writings in relation to the research questions. Sources will include scholarly books,
websites, journals and interviews. Review of literature on power separation and theory of realism
is important because it allows the researcher to test the thesis against what is known about the
field of exploration

2.2 The Doctrine of Separation of Power

The doctrine of separation of powers has radical successive from the works of Locke and
Montesquieu as different meanings have been brought about. The idea of separation of powers
partitions the organizations of government into three branches: executive, legislative and
judiciary where the executive initiate the laws; the legislature makes the laws; while the judiciary
interprets the laws. For Gerwitz (1989) Separation of powers advances majority rule and great
administration by guaranteeing that power is not abused in one state establishment or one person.
The tenet prevents the misuse of power by elements of responsible governance, which promotes
transparent accountability and transparency in the exercise of authority by each of the three
branches of government. The idea of the allegiance of powers should be integrated into all the
main constitutions of the present day. There is both a practical and a formal aspect of separating
powers. In essence, it involves staff independence and the flexibility of each of these branches in
the implementation of their authority.

Linington,G (2001), attests that formally devolution or separation of powers requires the
institutional division of administrative power into the three branches. It is in this way
fundamental that a constitution catch both the formal and substantive elements with a specific
end goal to adequately promote decentralization of power. Institutional division of state
administration into the three branches executive, legislature and judiciary. Separation of powers
is a model of state administration where the state is divide into three branches in particular the

14
executive, the judiciary and the law making body. The executive involves the presidency and the
cabinet, commanded with the power to execute enactment The government comprises the senate,
whereas the judiciary requires the courts, which are required to enforce the law.

Haq ,U (2010) affirms that in a bid to capture the idea of devolution of power , a constitution
should unmistakably demonstrate this institutional division of administrative power into these
three branches subsequently, According to Bridge (2007)Guaranteed freedom of each of the
branches from the impact of one another. The doctrine of the separation of powers includes the
independence of these three branches and the oversight of one another. Bearing in mind the
ultimate goal of maintaining the independence of each of these branches of government, the
Power Devolution Convention demands that no single person(s) must act as a representative of
more than one branch of government.

Notwithstanding the fact that it becomes important to ensure that people operate in more than
one branch of government for the purposes of integration of government resources. A cabinet
minister, for instance, can double as a person from the legislature in order to make laws that
bring flesh to the parliament's key legislation. On the other hand, there should be instruments to
guarantee that such mandate is not mishandled. The principle of separation of powers
additionally requires that the three branches of government must check against one another, to
keep away from misuse of power. It is therefore a responsibility of the Constitution to create
instruments that display the system absolutely.

Greg Linington (2012). Suggests that the judiciary must check against the legislature and the
executive to guarantee that those branches are exercising their power suitably. Similarly, the
executive must do likewise as for the judicial. Case in point, in South Africa, Canada and the
United States of America, the judiciary has the power to review the constitutionality of the
legislation passed by parliament or regulations made by cabinet ministers as well as the
lawfulness of the decisions made by the executive. In these same countries the body responsible
for the legislation is also committed to supervising the executive and to keep the executive and
judiciary to account for their decision. The division of powers, autonomous and accessibility to
sufficient sources requires free access to appropriate resources for each of the three branches of
government. This is intended to preserve a strategic buffer from a situation where the division
which controls capital uses its power to undermine the independence of other branches.

15
Therefore, the constitution should consequently ensure access to sufficient financing by each of
the branches.

2.3 Overview of Zimbabwe's Theory of Power Separation

The doctrine of separation of power is one of the essential elements of the rule of law in
Zimbabwe, because the rule of law is imperilled without proper separation of powers, but the
doctrine has a wider application in Zimbabwe and this will be examined in greater details. It will
explore the nexus between the doctrine of separation of power and judicial independence in
Zimbabwe, while the doctrine reflects an ideal that cannot completely be put into practice, it
stresses the need for appropriate checks and balances within the government system.

In essence, the doctrine of separation of powers in Zimbabwe is that for a free and democratic
society to exist there must be a clear separation between the three branches of government,
namely:
The Executive, which is the branch that executes the business of government. It comprises the
President, Vice-Presidents and Ministers, the Public Service, the Defence Forces, the Police
Force and other law-enforcement organisations. All the administrative, law-enforcement and
coercive organs of the State fall within the Executive Branch, making it potentially the most
powerful of the three branches of government unless its powers are subject to limitations.
The Legislature, which is the law-making branch. In Zimbabwe it consists of the Senate and
the House of Assembly.
The Judicial Branch, which interprets the law. It comprises judicial officers and the courts over
which they preside. In Zimbabwe the courts are divided into superior courts, namely the
Supreme Court and the High Court, and the lower courts, which are principally magistrates’
courts and customary-law courts. There are also specialised courts such as the Administrative
Court, the Labour Court and the Fiscal Appeal Court.
If one of these branches encroaches upon the functions of the others, so the doctrine goes,
freedom and the rule of law are imperilled. If, for example, the Executive (i.e. the President or a
Minister) makes laws and enforces them, then we no longer have the rule of law but rule by a
man or woman, and the governmental system will tend towards autocracy and tyranny. In short
the doctrine states that, liberty and human rights can flourish only where each branch sticks to its
proper role.

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Logically, the doctrine of separation of powers should extend to the appointment of the members
of each branch. For example, according to the strict doctrine of separation of powers the
Legislature should not appoint members of the Executive [i.e. Parliament should not elect the
President or the Prime Minister]; and for the same reason the Executive should not have a role in
electing members of the Legislature. Neither the Executive nor the Legislature should appoint
members of the Judiciary, for if they do the Judiciary will lose its independence. And it goes
without saying that judges should not appoint the Executive — though that is what may have
happened here in Zimbabwe when the Constitutional Court decided the result of the 2016
presidential election.
Who then, according to the doctrine of separation of powers, should appoint members to the
three branches of government? In all the principal draft constitutions produced so far — the
Kariba draft, the NCA draft and the Law Society draft — it is stated that all legal and political
authority derives from the people, so logically the people should elect the President and the
Prime Minister as well as all members of Parliament. And judges and other judicial officers
should also be directly elected by the people.

When financing branches, it would be impractical to expect each branch of government to raise
its own finances. The financing of all the branches must therefore come from the central
government fiscus, and may limit their independence because whichever branch controls the
fiscus can starve the other branches of funds. However the constitution could make it mandatory
for each branch to be provided with adequate funding to perform its functions in order to
maintain the independence of the different branches. .

According to Montesquieu‟ s document uploaded by Uroki (www.academia.edu), “...it is

essential that the person with the powers in any three organs that is the executive, judiciary, and
legislature, shall not be permitted to encroach upon the powers confided to the others...”.
Saunders (2006; 3) states that the accumulation of all powers , legislative, executive and
judiciary in the similar hands , whether of one, a few or many and whether inherited, self-
selected or elective; may justly be pronounced the very description of tyranny. Thomas
Jefferson cited in Alvey (2005; 13) states that concentrating of legislative, executive and judicial
power in the same hands is precisely the definition of despotic government. This means a clear

17
separation of powers should be formed between the three bodies of governments for judicial
independence to prevail in Zimbabwe, so that each branch may have the freedom to conduct its
duties without influence from other branch in order to prevent abuse of power.

Alvey (2005; 12) states that separation of powers is imperative to check on the abuse of
executive power as well as the goal of limited and accountable government. Locke in (ibid)
states that the same person should not have the power to make laws, to exercise them as well as
enforcing them. Vile (1967; 13) states that, it is essential for the establishment and maintenance
of political liberty that the government be divided into three branches and there is a
corresponding identifiable function of government. Locke (1960) cited in Alvey

(2005; 12) argues against the concentration of power in the hands of one person. Like what the
ZANUPF government did in Mugabe regime giving him the centre of power .Waldron
(2000;443) states that the persons who make up the three agencies must be kept separate and
distinct, no individual being is authorized to be at the same time a part of more than one branch.
This is because once a branch, particularly the executive, has lots of powers; it is more likely to
abuse powers, and the judiciary is the branch that is more vulnerable to the executive's
accumulation of powers. It shows that differences of powers in Zimbabwe are the foundation of
judicial independence, because the independence of the judiciary is not accomplished without an
unequivocal separation of authority.

Vile cited in Waldron (2013; 443) states that separation of powers is fundamental for the
establishment as well as maintenance of political liberty that the government be divided into
three branches or departments. There is a different function of government for each of these three
branches. Each branch must have its own function and must not be permitted to impact the
functions of the other branches. Singh (2000; 246), states that the independence of the judiciary
depends on the totality of a favourable environment created and backed by all state organs,
including the judiciary and the public opinion. This means that in Zimbabwe, the judiciary
should be supported by all states organs and the boundaries between these branches should be
explicitly demarcated and there should be creation of a friendly environment for judiciary to
exercise its independence. The independence of the judiciary also needs to be constantly guarded
against the unexpected events and changing social, political, and economic conditions for the
reason that it is too fragile to be left unguarded. Therefore, the limitation of the three branches '

18
interaction with one another helps to remove external control from the judiciary, as it is too weak
in Zimbabwe.

Bentham and Boyle (9995; 72), allude that if courts are not independent of both legislature and
executive cannot act without fear or favour to ensure that public officials operate within the law.
Montesquieu quoted in Chiduza (2014; 3) states there is no liberty if the judiciary power be not
separated from the legislature and executive because where it is joined with the legislature, the
life and liberty of subjects would be open to the elements of arbitrary control and were it
attached with the executive power; the judge might behave with hostility and aggression.
Rautenbach and Malherbe in Chiduza (2014) state that the independence of the courts is an
incidence of the separation of power, so the constitutions of all countries should contain
provisions meant to protect the independence of the courts This means that if the judiciary is not
separated from other branches it will not be able to perform its duties independently hence the
rule of law be observed. This same applies to the case of Zimbabwe, for rule of law to prevail
and or the citizens to fully enjoy their rights, the doctrine of separation of powers should be
observed.

Haq (2010;) postulates that certain enumerated powers should be exclusively exercised by only
one branch or sector therefore with respect to the judiciary, arbitration or party disputes should
be a function of the courts, so implicit in the doctrine of separation of powers is a prohibition
against legislative or executive encroachments. Chiduza (2014) states that, the judiciary should
be separated from from the legislature and the executive in order to guarantee judicial
independence. Unclear separation of powers can result to the encroachments of the branches into
each other‟s business which at the end can cause abuse of power. The doctrine of separation of
power is there to provide for the existence of a free and democratic society, a clear demarcation
between the three branches of government.

However, Geoffrey Marshal cited in Saunders (2006; 2) states that the concept of separation of
powers is infected with so much imprecision and inconsistency because every constitutional
system that purports to be based on separation of powers also provides for a system of checks
and balances under which each branch encroaches upon another. There are not always lucid
dividing lines between administrative, legislative and judicial functions because in the

19
contemporary world, there must a grand deal of cooperation and interaction between the
Executive, the legislature and the judiciary if the state business is to be effectively and efficiently
done. This reveals that the attainment of the doctrine of separation of powers is not feasible.

2.4 SEPARATION OF POWER IN AFRICA

To understand the nexus between the doctrine of separation of power and judicial independence
in Africa, it is imperative to first understand the underpinning conceptual considerations .The
doctrine of separation of powers rooted in the writings of the popular French philosopher
Montesquieu shows the role played by a constitution in promoting judicial independence how the
independence of the judiciary can be achieved. Mawere (2009) says the separation of powers
divides the institutions of government into three branches that is legislative, executive and
judicial with the legislature responsible for making laws, the judiciary for interpreting the laws
and the executive for putting the laws into action. state Blackstone (1884; 268) states that
separation of powers primarily means the separation of the judicial from other powers, Haq
(2010:2) notes that since judicial independence is a crucial component inherent in the proper and
effective administration of any government; critical to it is the larger requirement of a separation
of powers which must be established before attempting to affect any concept of judicial
independence.

There is probably no country in the Africa in which the doctrine of separation of powers is
applied strictly and absolutely. There are not always straightforward dividing lines between
administrative, legislative and judicial roles, lawyers have wasted the oceans of ink and the
mountains of paper in trying to define those words precisely and there must be a great deal of
collaboration and communication between the executive and the legislature in a modern state,
especially if the State's business is to be carried out efficiently. Therefore, there is always some
duplication in roles in modern African countries. For example:
(1) Legislation has become so far-reaching and complex that Parliament cannot enact
all of it. Acts of Parliament must leave details to be filled in by regulations made
by other authorities, usually Ministers. Hence the Executive branch must be given
some law-making powers. At present all subsidiary legislation must be laid before
Parliament, but Parliament has no power to repeal it. It would be closer to the
ideal of separation of powers if Parliament did have such a power.

20
(2) The role of government has expanded so greatly that many decisions which affect
peoples’ lives must be made quickly, and some of these decisions require specialised knowledge
which is not possessed by judges or magistrates. Many of these decisions are made by
administrative tribunals established by and answerable to Ministers. Hence the Executive branch
is increasingly given judicial powers. This is not necessarily undesirable so long as the tribunal
obey the basic standards of fairness laid down by the law and so long as the courts are able to
review their decisions.
(3) It is generally recognised that in a legal system such as Zimbabwean, judges do not just
interpret the law. They develop and adapt the law to take account of changing circumstances,
and in that way they actually make law. Hence the judicial branch has some law-making or
legislative powers, but this power should not go beyond refining and developing existing law.
(4) In Africa, some countries the Head of State and government is elected by Parliament, not
by the people. This is usually the case where the Head of State is non-executive, but in South
Africa the executive President is elected by the National Assembly. While this violates the strict
doctrine of separation of powers it has the advantage of ensuring that the Executive does not get
too powerful and is ultimately answerable to Parliament.
(5) Few modern constitutions provide for the direct election of judges and magistrates. They
are usually appointed, subject to safeguards to ensure their independence, by the Executive or the
Legislative branch, or by both branches.
Because there can be no complete separation between the different branches of government, it is
better to describe the principle of separation of powers as a governmental system with
independent entities that share power equally between them. Relative powers of each branch
should be balanced

2.5 REALISM THEORY

Although many scholars support the separation of powers, the theory of realism questions the
attainability of the doctrine of separation of powers and independence of the judiciary through its
focus on human nature and power issues. Morgenthau cited in Gerwitz (1989) places selfishness
and power lust at the centre of human being. He goes on to state that the insatiable human lust
for power. Realists view human beings as naturally egoistic and self-interested to the degree that
self-interests overcome moral principles (www.plato.stanford.edu). Morgenthau (2001) says, just
like states; human beings look beyond appropriate amount of power. Since the quest for power

21
and security is inseparable in human beings, it becomes impossible for the branches of
government to adhere entirely to the principle of the separation of powers Each branch may
attempt to control others, making it difficult for judicial independence to prevail, as it can only
prevail once the branches try to treat each other fairly without trying to dominate each other.

Classical realists argue that the essential character of today's system is institutional chaos or a
central authority not to settle disputes between three brans and that this creates the security
problem. This means that since the doctrine of separation of powers advocate for the equalisation
of the three branches of the government, the lack of an overarching authority, each branch might
try to dominate other branch due to the quest for power hence making it difficult for separation
of powers to be observed. Therefore, It means that once the principle of the separation of powers
is not strictly followed, the judiciary will not be able to carry out its duties independently
because it is very fragile.

The issue of judicial independence has always been highly controversial taking into
consideration the matter that all the members of the tribunal are appointed by the President. This
in turn puts the bench in a little bottle with little air to respire because even when partly involved,
the important decisions are taken by the executive.

2.6 JUDICIAL INDEPENDENCE

The issue of judicial independence has always been highly controversial taking into
consideration the matter that all the members of the tribunal are appointed by the President. This
in turn puts the bench in a little bottle with little air to respire because even when partly involved,
the important decisions are taken by the executive .There is no a worldwide accepted description
of judicial independence but scholars explain it differently because academic formulations of
independence do not always match. Judicial independence means that judges must be free to
exercise judicial powers without interference with litigants, the media, powerful individuals or
entities such as huge companies and most importantly the state (www.Judiciary.gov.uk). Judicial
independence therefore means that the judicial officers should be free from any unwarranted
influences that might prevent them from deciding on legal disputes basing on the legal qualities.
In an interview with Mr F Chingwere (lawyer) defined judicial independence as a concept
derived from the doctrine of separation of powers and judicial independence means that the
judiciary should be detached from the other branches of the government, perform its duties
exclusive of the influence from any branch of the government or political elites.
Judicial independence is characterised by two elements that is institutional and personal
independence. Rugege (2005; 412) defines institutional independence as the independence of the
judiciary from other branches of the government that is the legislature and the executive. Rugege
(2005; 413) also define personal independence as the impartiality of a judge meaning a judge’s
ability to make decisions without favour fear or prejudice with regard to the parties irrespective
of their position in society and in other words it means the absence of bias . Mr Chingwere also

22
alluded that ‘Personal independence is protected by three facets that are decent remuneration and
conditions of service, security of tenure as well as immunity from civil liability for loss caused
by performance of judicial duties.’ This means that the judicial officers should be well
remunerated and their tenure of office should be secured so as to avoid situations where they
might try to pass biased judgements in a bid to remain in office.

Institutional autonomy is based on various factors, such as the capacity of the constitution to
differentiate between the judiciary and any other branch of government, which ensures that it is
regarded as an autonomous institution. The judiciary should have the adjudicatory powers were
the decisions passed by the judiciary cannot be reversed or nullified by any branch or any
individual. Professor Madhuku referred to a South African case titled S v Mamabolo (e.tv and
Others Intervening ) were Mamabolo who was the spokesperson for the Department of
Correctional services challenged the judges claiming that they had wrongly granted bail to a
certain prisoner and declared that the prisoner was not going to be set free. The South African
Constitutional Court ruled that in their constitutional order, the judiciary is an independent pillar
of the state hence it was supposed to exercise its judicial authority fearlessly along with impartial
because it stands on the same footing with the legislature and the executive both as branches of
the state. This means that judiciary should not be subject to control by any branch of the
government but should pass judgements independently.

2.8 Conclusion

In summary, during the review period, the separation of powers from the rule of law in
Zimbabwe was corroded and the principle of judicial independence was weakened. An
unacceptable level of political interference in Zimbabwe's government and justice system
prevailed. As shown by the above results, impartiality in the judiciary during 2000-2016 was
integrated into political predicaments.

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 CHAPTER 3

NEXUS BETWEEN SEPERATION OF POWER AND JUDICIAL INDEPENDENCE

3.1 THE STATE OF INDEPENDENCE OF JUDICIAL IN ZIMBABWE

McNollgast (2006; 108) defines judicial independence as a product that emerges from the
tactical interactions among the judiciary, the legislature and the executive not the automatic
result of constitutional or statutory provisions that set up life tenure for judges, nor is judicial
independence limited by the checks and balances or legal traditions. This means that even in
Zimbabwe also, the judicial independence should be seen through the way it interacts with other
branches not on the paper. This is also supported by Singh (2000; 247) when he comments that,
judicial independence primarily means the independence of the judiciary from the executive and
the legislature. Rugege (2005) alludes that judicial independence is a universally recognised
principle in democratic societies and also a prerequisite for a society to operate on the basis of
the rule of law.

The primary standard of the Latimer House Principle on the Three Branches of the Government
(2003; 10) expresses that judicial arrangements ought to be made on the premise of a plainly
characterized criteria and by an openly pronounced procedure, arrangement on legitimacy and
equity of chance for all who are qualified for judicial office. Span (2007; 80) expresses that
judges ought to be selected only on legitimacy, from qualified persons of superb character with
respect to the need to support assorted qualities. Rugege (2007; 417) states that the way that
judges are designated has an orientation on their autonomy, so it is the obligation constitution to
unmistakably maintain how the judges ought to be named to ensure judicial freedom. Segment
143 (1) (a) of the Ugandan Constitution expresses that a man may be appointed as a Chief Justice
just in the event that he or she has served as a judge of the Supreme Court of Uganda or a court
with related locales or a person who has been a promoter for a quarter century. This
demonstrates the distinction when contrasted with the Zimbabwean particularly before the 2013
constitution for instance Zaba (2012) in her examination of the draft constitution which was later
approved and turned into the 2013 constitution, lauds it when she expresses that, "...the
appointment of the chief justice, the deputy chief justice, the judge president of the High Court,
prosecutor-general and every single other judge will now be done by the president from a
rundown of three chosen people submitted to him by the Judicial Services Commission (JSC)".

24
These imprint a takeoff from the LHC where the president could without much of a stretch
delegate judicial officers

Chiduza (2014;3 72) states that the minimum's codification capabilities for appointment of the
judiciary livens up judicial autonomy in light of the fact that it confines the likelihood of control
by those enabled to make legal arrangement framework in Zimbabwe were the president has the
power to affirm or dismiss the judges picked by the JSC. Nonetheless, Chiduza (on the same
page) additionally reprimands this expressing that the president's contribution in the judicial
exercises overrides the the importance of the advertisements of the judicial vacancies
accommodated in section 180 (2) (a) which is followed by the public interview in which names
of the successful candidates are sent to the president who handpicks the one he needs. This
overrides the entire procedure of public interview since the president has the overall say in the
whole process.

Ginsburg and Ngenge (2014:29) state that Zimbabwe's new constitution is exceptionally
dynamic and liberal in its insurances for judicial freedom because of the new changes it
presented which were not found in the Lancaster House Constitution. Chiduza (www.saflii.org)
says the powers offered to the Constitutional Court will moreover ensure that balanced
governance are connected on parliament and the executive branch of government. If these
powers are unlikely to be properly applied by an autonomous and fair judicial system, the misuse
of office may be illegal. Chiduza (2014:373) implies that the Constitutional Court will bargain
just with instances of accepted infringement of protected rights. In any case, CJ Chidyausiku in
Linington (2001; 148) states that, "...we tend to surmise that judiciary autonomy implies only
freedom from the legistlature and the executive. In any case, it implies substantially more than
that; it implies autonomy from political impact, whether applied by political organs of
government or by the general population or got by the judges themselves through their
association". This means that the creation of the Constitutional Court without the implementation
of legal measures to protect it from political interference will not change

Ginsberg and Ngenge (2014:29) questions the thought of the Supreme Court which is as of now
functioning as the established court for a provisional timeframe in Zimbabwe expressing that the

25
clause allows the ruling party to serve its term without being disturbed by the Constitutional
Court judges in light of the fact that they are prone to be faithful to political leaders on the
grounds that they were picked by the president before the introduction of the constitutional court
by the 2013 constitution. Ginsberg and Ngenge present that crisp changes ought to be made in
accordance with the way the constitutional court works and recommends that the sacred judges
ought to work independently from the Supreme Court.

Principle IV of the Latimer House Guidelines on the Three Branches of the Government places
models and emphasize on preventing the unconstitutional removal of judges from office.

Madhuku (2010; 96-97) states that, If a judge can without much of a stretch be expelled from
office, it is important to make sure that the procedure is thorough and free from political control.
On the off chance that judges appreciate satisfactory security of tenure, it may counterbalance
the impacts of a faulty arrangement framework in that once appointed, a judge who realizes that
it is hard to uproot him/her from office may build up an autonomous line, paying little heed to
the first inspirations for his appointment.

This means that, that there should be a clear set of procedures under which the judicial officers
should be removed from office in Zimbabwe for judicial independence to prevail.

Chiduza (2014; 387) says Section 187 (4) which empowers the president to set up a tribunal to
investigate suspicious judges is unacceptable because there is a possibility that the judges might
be removed from office for political grounds since the tribunal is set up by the president.
Chiduza (ibid) gives an example of South African (SA) constitution were removing a judge from
due to frivolous, vexatious or political issues is very difficult as compared to the Zimbabwean
under the Lancaster House Constitution were the judges could be removed on political grounds.
Section 177(1) (a) of the SA constitution states that for a judge to be removed from it requires
the JSC to make a finding that a judge suffers from incapacity, is grossly incompetent or is guilty
of misconduct. So the JSC should be given platform to perform its duties within the
constitutional parameters without the prying of the president and the executive into their
territory. This shows that it is the duty of the constitution to set clear standards which should be
followed when removing a judge in order to protect the independence of the judiciary.

26
Linington (2001; 148) states that the Judicial Service Commission (JSC) should not be subject to
the direction of any authority and its decisions require the major concurrence of a majority of all
the commission‟s members. Section 19 provides for the qualities of the members of the JSC,
even though they are supposed to be chosen on the basis of merit, the president plays an
importanteven though they are supposed to be chosen on the basis of merit, the president plays
an important role in the appointment of judges. However, Mavedzenge

(2012; 3) states that due to the reduction of the president‟s influence on the appointment of the
JSC, the 2013 constitution presents an opportunity for the appointment of an impartial JSC
which in turn will appoint impartial judges and members of the prosecuting authority thus
providing an opportunity for judicial independence and observance of the rule of law. Section 90
(1) (d) of the Lancaster House Constitution which gave the president some powers to appoint
five out of six members of the JSC but the current constitution gives the president opportunity to
appoint only two out of fourteen members of the commission therefore the influence of the
president is greatly reduced. Chiduza (2014; 377) states that section 180 of the current
constitution is to some extent is dangerous because even though the president appoints a few
members of the commission, the fact that the president has the final authority in the appointment
of the judges limits the JSC from executing its duties without being controlled and the
involvement of the president in the appointment of the members of the JSC is also dangerous
since he has the potential to control them since he have a hand a hand in their appointment. So
for the JSC to operate independently, the president should not be given the power to appoint
judicial commissioners and can hand that duty to the parliamentarians.

The independent judiciary can be distinguished by tenure protection, which should be a

permanent position in the judiciary in most cases. The Principle 4,7 of Mount Scopus
Approved Revised International Standards of Judicial Independence of 2008 states that the
temporary appointment of judges should be avoided as far as possible and it goes on to state
that acting judges should be appointed only with proper safeguards secured by law so not to
compromise the independence of the judiciary. Principle 11, 1 of the Latimer House

Guidelines on the three branches of Government says the, “Judicial appointments should be
permanent...” Chiduza (2014;383) states that security of tenure is key to the independence of
the judiciary because if judges are appointed for a fixed term there is danger that they will be

27
 seen as attempting to please the individuals that have appointed them in a bid to be reappointed
if their contract ends. On Section 85 of the Lancaster House Constitution the president was not
bound by the JSC in the appointment of judges. Chiduza (2014; 386) states that the current
constitution is silent on whether the Chief Justice (CJ) should consult the JSC in appointing
acting judges of the court. So there is a possibility that the CJ may be tempted to make
appointments recommend by the executive.

According to the Guide to Judicial Conduct (2013:9), judicial independence is sometimes

erroneously perceived as a privilege enjoyed by the judges, while it is in fact a keystone of the
system of government in a democratic state. Walker (2012:48), states that a strong, effective and
independent judiciary plays a vital role in ensuring that the law reaches all corners of the society.
Kornhauser cited in Burbank and Friedman (2002:621) states that judicial independence is very
important because, “...it empowers and insulates judges from check or balance by the political
branches, especially by the executive”. Singh (2000; 245) states that an independent judiciary is
necessary for a free society and a constitutional democracy for the reason that it the rule of law
and the realization of human rights and also the prosperity and stability of a society. One can
note that, judicial independence should not on paper only but should prevail and should be
practiced.

The Beijing Statement of the Principles of the Independences of the Judiciary promulgated in
1982 says, “... to ensure that all persons are able to live securely under the rule of law, to
promote, within the proper limits of the judicial function the observance and attainment of
human rights and to administer the law impartially among persons and the state, there should be
the judicial independence”. Redish (1999:7) states that in order to ensure fair treatment of
individuals, litigants, to assure the viability of judicial review, to preserve the integrity of the
judicial process and to provide a means to legitimise the actions of the political branches, the
independence of the judiciary should prevail. Chiduza (2014;3) also alludes that a judiciary
should be independent when deciding a case because in order for justice to prevail, the judicial
officers should not have in mind the status of any party, fear anything would result from the
decision, seek to favour any party or harbour ill-will against any party. This can be seen for
example in the Nixon’s Water Gate Case in America in which Nixon, the then American

28
President was found guilty by the Supreme Court of America
(http://en.wikipedia.org/wiki/Watergate_scandal.

The Supreme Court made this ruling without considering the status of the person but they gave
their judgements basing on the law. So judicial officers should have a mind free of anything that
would be put at risk his or her impartiality in decision making; so the only influence he or she
cannot free himself or herself from is that of the law hence it is imperative to enshrine
constitutional provisions which insulate the judiciary from external control. In this regard, the
research seek to review the role of the constitution in promoting judicial independence in
Zimbabwe thereby filling and rectifying the gap being left by literature in indicating the impact
of the existence of the executive branch in the whole policy making process of any country
which seek to adhere to the principle of separation of powers.

3.2 JUDICIAL INDEPENDENCE vis-a-vis SEPARATION OF POWER

For Mouton, J (2001) the judicial branch is normally charged with the enforcement of the
constitution and other laws, and to ensure that the other two branches act in accordance with
them. The ability of the courts to do this is by no means automatic, but instead is heavily
contingent upon the judiciary's independence. Keith C.K (2002) has it that, two barometers
typically measure the judiciary' independence personal independence and functional
independence. The personal sometimes referred to as the relational independence of the judiciary
is reflected by factors such as the nature of judicial appointments and the terms and conditions of
service.

The government appoints all the members of the Botswana judiciary to their positions, the
executive controls the judiciary. According to the Magistrates' Court Act of 1983, the president,
acting in accordance with the advice of the Judicial Service Commission, may appoint qualified
persons to any of the five grades of magistrates provided for under that Act, The constitution also
empowers the president alone to appoint the Chief Justice, who heads the High Court, but
requires the president to consult with and obtain the advice of the Judicial Service Commission
in appointing all other judges of the High Court. The same anomaly exists with respect to the
Court of Appeal, where the president appoints the judges in consultation with the Judicial

29
Service Commission, but alone appoints the president of that court. It is certainly not satisfactory
for a politician acting in isolation to appoint the heads of the country's two highest courts without
the benefit of the Judicial Service Commission's advice, and with no constitutional criteria to
counter the influence of a desire for political expediency. This provision exposes judges so
appointed to political manipulation, therefore placing the independence of the judiciary at risk.

The salaries of judges, the Attorney General, and members of the Judicial Service Commission
are charged to the Consolidated Funds which permanently authorizes their compensation and
prohibits the government from reducing it arbitrarily to pressure or influence them. Although the
government appoints the Attorney General, the independence of the office is guaranteed
constitutionally by section 51 (7), which provides that in discharging judicial functions, the
Attorney General "shall not be subject to the direction or control of any person or authority.
Thus, the Attorney General, although part of the executive and the legislature, is independent of
each. Functionally, judges in Botswana are shielded from threats, interference, or manipulation
intended to compel them to favour unjustly a party or the state in legal proceedings. These
features of the judiciary system in Botswana clearly indicates the extent to which it adheres to
the principle of separation of powers.

From the above assertion it can be noted that, though different schools of thoughts tend to
address the nexus between judicial independence and the principle of separation of powers, a
close review to the cases above clearly shows the interference of the executive branch as a key
threat to judiciary independence in Zimbabwe like any other democratic state. It is highly the
duty of the constitution to safeguard the principle of separation of powers, thus for judicial
independence to prevail, the functions of the other branches are to be clearly defined and limited
to the decisions made in each of the branches and this can only be made possible when each arm
of state conduct checks and balances autonomously. The literature under review gave picture on
the role of the constitution as a tool of safeguarding judicial independence, however didn’t
provide for the minimisation of executive powers as well as the need to raise awareness to
citizens of the state on issues pertaining the legal framework surrounding the judiciary system
,thus for justice to prevail in any society there should be mass understanding of rules and
regulations that binds the social, economic and political activities of the society. This also helps

30
in defining the duties and limits of each organ of state thereby promoting devolution of power,
and independence.

3.3 FACTORS AFFECTING JUDICIAL INDEPENDENCE AND SEPARATION OF

POWER IN ZIMBABWE

Professor Sachikonye says even though the constitution states that the judiciary should be well
remunerated, the government is failing to provide enough money for the judiciary due to the
prevailing economic hardships in the country. Professor Matodzi (2015) states that the poor
salaries are compromising the independence of the judiciary because some judges are now
involved in corruption and bribes due to lack of adequate salaries. In an interview with Mr
Chingwere, he also argued basing on the speech delivered by the CJ Chidyausiku on the official
opening of the 2015 Legal year. The CJ said the judicial officers and all those who support them
need to be adequately remunerated and he went on to state that judicial officers who are not well
remunerated is most vulnerable and susceptible to be compromised. The CJ went on to state that
the poor conditions are what is fuelling corruption in the judicial system. This problem is not
emanating from the constitution because even though the constitution states that judicial officers
should be well remunerated, the government’s coffers are empty therefore it is failing to act
according to the constitutional stipulations.

In interviewing Mr Gore (Records manager),he explains that the other issue which is
compromising the independence of the judiciary is the issue of delays being caused by the work
overload were too many cases are required to be handled by too few judges. Nemukuyu (2015)
states that when the judges of the Supreme Court were criticized by the CJ for sleeping on duty,
they defended themselves by claiming that they were being called from time to time to help out
at the Constitutional Court. This same applies to the Bulawayo case were Agere (2015) states
that there is scarcity of personnel in the Southern part of the country were five judges are
handling both criminal and civil cases from the whole of Midlands, Bulawayo and Matabeleland.
Mr Gore in his interview comments that this provides a room for the compromise of judicial
independence as some judges may be attempted to accept bribes from people who would want
their cases be heard urgently.

31
3.4 NEXUS OF SEPERATION OF POWER AND JUDICIAL INDEPENDENCE IN
AFRICA
To understand the nexus between the doctrine of separation of power and judicial independence
in Africa, it is imperative to first understand the underpinning conceptual considerations .The
doctrine of separation of powers rooted in the writings of the popular French philosopher
Montesquieu shows the role played by a constitution in promoting judicial independence how the
independence of the judiciary can be achieved. Mawere (2009) says the separation of powers
divides the institutions of government into three branches that is legislative, executive and
judicial with the legislature responsible for making laws, the judiciary for interpreting the laws
and the executive for putting the laws into action. state Blackstone (1884; 268) states that
separation of powers primarily means the separation of the judicial from other powers, Haq
(2010:2) notes that since judicial independence is a crucial component inherent in the proper and
effective administration of any government; critical to it is the larger requirement of a separation
of powers which must be established before attempting to affect any concept of judicial
independence.

There is probably no country in the Africa in which the doctrine of separation of powers is
applied strictly and absolutely. There are not always straightforward dividing lines between
administrative, legislative and judicial roles, lawyers have wasted the oceans of ink and the
mountains of paper in trying to define those words precisely and there must be a great deal of
collaboration and communication between the executive and the legislature in a modern state,
especially if the State's business is to be carried out efficiently. Therefore, there is always some
duplication in roles in modern African countries. For example:
(i)Legislation has become so far-reaching and complex that Parliament cannot enact all of
it. Acts of Parliament must leave details to be filled in by regulations made by other
authorities, usually Ministers. Hence the Executive branch must be given some law-
making powers. At present all subsidiary legislation must be laid before Parliament, but
Parliament has no power to repeal it. It would be closer to the ideal of separation of powers
if Parliament did have such a power.
(ii)The role of government has expanded so greatly that many decisions which affect
peoples’ lives must be made quickly, and some of these decisions require specialised
knowledge which is not possessed by judges or magistrates. Many of these decisions are

32
 made by administrative tribunals established by and answerable to Ministers. Hence the
Executive branch is increasingly given judicial powers. This is not necessarily undesirable
so long as the tribunal obey the basic standards of fairness laid down by the law and so
long as the courts are able to review their decisions.
(iii)It is generally recognised that in a legal system such as Zimbabwean, judges do not just
interpret the law. They develop and adapt the law to take account of changing
circumstances, and in that way they actually make law. Hence the judicial branch has some
law-making or legislative powers, but this power should not go beyond refining and
developing existing law.
(iv)In Africa, some countries the Head of State and government is elected by Parliament,
not by the people. This is usually the case where the Head of State is non-executive, but
in South Africa the executive President is elected by the National Assembly. While this
violates the strict doctrine of separation of powers it has the advantage of ensuring that
the Executive does not get too powerful and is ultimately answerable to Parliament.
(v)Few modern constitutions provide for the direct election of judges and magistrates.
They are usually appointed, subject to safeguards to ensure their independence, by the
Executive or the Legislative branch, or by both branches.
Because there can be no complete separation between the different branches of government, it is
better to describe the principle of separation of powers as a governmental system with
independent entities that share power equally between them. Relative powers of each branch
should be balanced

Mr Chingwere argued that weak institutions also lead to partial independence of the judiciary.
He argues that the police are politicized to the extent that they do not take action when a member
of the judiciary receives threats from the general public or the influential individuals. This is
because there is no a clear cut between police and politics hence the police ends up working as
an extension of the executive hence making it difficult for it to perform its duties. From the
research, one can note that the nexus between separation of power and judicial independence
brought some changes meant to improvise judicial independence and separation of power, there
are still some loopholes which still need to be addressed in order to achieve judicial

33
independence to its fullness and the independence of the three state arms. The constitution is still
shrouded with the provisions meant to provide for the inclusion of the president on the sections
meant to provide for judicial independence. Such shortcomings found throughout this study
must be resolved because they pose a serious threat to the judiciary's independence. Failure to
deal with these threats will no doubt continue impacting negatively on judicial independence in
Zimbabwe. Once these factors are addressed, this will lead to progress in the state of judicial
independence and will reinforce Zimbabwean politics ' position in adherence to the principle of
the separation of power as core element in promoting democracy.

3.5 The Judicial Service Commission (JSC) IN Zimbabwe

Professor Sachikonye argued that the constitution spelt out more on the roles of the JSC and goes
on to say, the President’s influence over the appointment of the JSC has been reduced even
though some members are still appointed to office by him. He goes on to state that if it carries
out its duties very well, it will provide better working conditions for judges and also produce
independent judicial officers. The JSC bench was mainly made up of presidential appointees.
Madhuku (2002) states that the extent to which the appointment of judges is free from political
manipulation is largely dependent upon the independence of the JSC. The JSC is provided for on
section 189 of the 2013 Constitution comprises of Chief Justice, deputy chief justice, judge
president of the High Court Judges the Attorney General and other three judges. Section 180 (1)
states that the CJ is the head of the JSC and it also states that he is appointed by the president and
some members are appointed by the president. This renders the activities of the judiciary
questionable since the executive has a hand in the appointment of the administrative body of the
judiciary.

The Zimbabwe Lawyers for Human Rights (2012) observes that independence of the JSC
remains subject to inquiry due to the number of the people who are appointed by the president.
Hodzi (2011; 18) states that whenever the executive has a hand in the appointment of the JSC,
there is no way one can expect the commission to be independent nor objective in the
performance of its duties and there will be no warranty that there will be no interference of the
executive in the activities of the JSC. So this means that the activities of the JSC would be
34
questionable and likely to be biased towards the executive since the president has a hand in the
appointment of the administrative body of the judiciary of separation of powers as well as
disruption of the doctrine of separation of powers due to the involvement of the President in the
activities of the judiciary.

35
 CHAPTER 4

FUTURE OF THE JUDICIAL INDEPENDENCE

4.1 Judicial Activism

Judicial activism as propounded by Kmiec (2004:3) is the verdict passed by the courts that
arguably go further than application and understanding of the law and extends into the
jurisdiction of change and creation of laws or going against legal practices. The judge’s personal
philosophies or political connexions without a doubt are the influence of those decisions. A
judge is said to be “legislating from the bench” should he or she make a court decision that is not
in line with the constitution or statutory law or legal precedent. Mr Mupungu emphasizes on this
account that it is probable that a judge might have held back from exercising judicial discipline,
this is meant to be a judicial activist. Judicial activism involves the practise of judicial review, or
the description of a particular verdict in which the member of the bench is generally envisioned
to be keener to rule on constitutional matters and prepared to overturn legislative or executive
actions.

Judicial Activists impose their perceptions of the requirements of the constitution rather than
conceding the views of other government officials or prior courts as put across by Roosevelt
(2014:1).Activist judges pass verdicts on cases based on their policy orientations rather than an
authentic interpretation of the law leaving out the unprejudiced role and legislating from the
bench. Verdicts may be considered activist for either striking down legislative or executive
action or for permitting it to hold. Our court system it is perceived to have a long standing
history of being contaminated by prevalence of judicial activism. The rise of opposition politics
with those championed by the Movement for Democratic Change has seen members of the bench
failing to keep their political wiles outside the courtroom.

4.2 JUDICIAL INDEPENDENCE vs POLITICAL CASES

This section seeks to analyse the future of Judicial Independence against the political cases. In
political cases, Rugare Gumbo and Didymus Mutasa argued in 2014 that the judgments handed
down by the judiciary were not based on the law but were influenced by the executive. Mutasa
and Gumbo are the expelled political leaders of the ZANU PF who wanted to challenge the
ruling party (ZANUPF) in court over their expulsion decisions from the party. Professor
36
Madhuku claims that the judiciary under the 2013 Constitution is doing a good job in passing
objective judgments in cases involving private individuals whilst its judgments on cases
involving political elites are very questionable.

Mayo (2015) states that, the president blatantly threatened judges over that case and it hence
revealed the contempt for the judiciary. The ruling party claimed that the issue was not to be
handled by the courts because it was a political issue and it was to be dealt with by the party
basing on party constitution instead of the national constitution. Legal experts claimed that the
aggrieved had the right to take their case to the court basing on section 67 (2) of the constitution
which states that that every Zimbabwean has the right to form as well as to participate in the
activities of a political party. Magaisa (2015) also made reference to section 171 (1) of the
constitution which states that the high court has the original jurisdiction over all civil and
criminal issues throughout Zimbabwe. Section 166 (3) (a) also states that the constitutional court
should hear cases which deal with the alleged infringement of fundamental rights enshrined in
chapter 4 of the constitution. Political freedom is one of the fundamental human rights hence
justifying the need for these expulsed people to have their case heard by the courts.

Madhuku cited in Mayo (2015) states that Mugabe’s remarks appeared to undermine the
judiciary, but they will not necessarily annihilate its independence if the judges take a stance and
ignore them, however basing on Madhuku’s argument; how can the judicial officers ignore the
president’s comments if he is the one who appoints them, have a hand in their removal process as
well as their remuneration? Mawere (2013) states that, anyone who understands the link between
ZANU-PF and the judiciary cannot be confused when reading some of the judgments that have
come from the bench. He goes on to state that Justice Hungwe is now well acquainted with how
the wheels of the system can unexpectedly turn when certain affiliates of the executive branch
are threatened. The courts ruled in favor of the state on this occasion, and this decision never
shocked many people because they understood how decisions were made by the judiciary when
it comes to matters concerning persons and politicians.

This is because the judicial officers know that they depend on the executive because it regulates
all of their operations, and ruling against the executive members is like biting a hand that feeds
them. This therefore reveals that the Zimbabwean constitution, have some loopholes since it did

37
not fully protect the judicial independence by also allowing the president to play certain roles in
the judicial activities.

In February 2017 the former Chief Justice Godfrey Chidyausiku reached the compulsory
retirement age of 70 .Before he was due to retire, a process was initiated to appoint his
replacement. The most senior member of the judiciary, the Chief Justice, must be appointed
purely on merit and this appointment must not be influenced by political considerations. It is
therefore highly regrettable that there appear to have been political manipulation to try to
influence this process. This could have extremely damaging consequences for the integrity and
independence of the judiciary in Zimbabwe

The factional fighting within ZANU PF underlies the development of this matter. According to
this notion, the Vice President in charge of the Justice Ministry who is now the current President
prefers the appointment of Justice Chiweshe as Chief Justice because he was sympathetic to the
Vice President’s faction. Thus, in any process involving a challenge to the presidency after the
later president ceases to be the incumbent, Justice Chiweshe would lean in favor of the then Vice
President. On the other hand, at least some of the other three nominees are allegedly sympathetic
to the other ZANU PF faction. According to this theory, the proposed change to section 180 to
give the President the sole discretion in appointing the Chief Justice is to enable the President to
appoint Justice Chiweshe who has a liberation war background and strong ties with the military.
It is further speculated that Justice Chiweshe did not attend the public interviews because he
might not be recommended for appointment by the panel. Some reports suggest he might have
been aware that the amendment of section 180 was imminent and he would stand a better chance
of appointment if the decision rested solely with the President; whilst the other reason proffered
for his absence was the ruling by Justice Hungwe halting the interview process.

All of this is pure speculation. However, any veracity in relation to these claims would bode ill
for the integrity and independence of the judiciary as it would be indicative of an attempt to
politically influence the judicial appointment process. Alex Magaisa maintains: “What is clear
from this case is that the process of appointing the Chief Justice has been the subject of political
gamesmanship within the context of ZANU PF’s succession politics. While Zibani, the litigant
who tried to stop the interviews is a private citizen, there is much to suggest that he was not a
38
lone ranger, but that he was, in fact, a proxy of a political faction which is pushing for a
particular candidate to take over as Chief Justice. It is hardly a coincidence that Romeo Zibani
submitted his application at the same time that the Ministry of Justice was also crafting an
amendment to the process of appointing a Chief Justice and that the Ministry had no interest in
opposing Zibani’s application. On the contrary, the Ministry of Justice seemed to be quite happy
with Zibani’s application, instead of defending the existing provisions of the Constitution, as it is
legally obliged to do. It curiously gave precedence to a proposed constitutional amendment,
ahead of an existing and valid provision of the Constitution.” 

Veritas had this to say: “It is most unfortunate that the appointment of the new Chief Justice
seems to have fallen prey to political factionalism. Even the appearance of political involvement
in the appointment process diminishes the authority and prestige that should attach to the office.
It is to be hoped that whoever finally becomes Chief Justice will be able to reassert the
independence of his or her office and the judiciary as a whole.”

Another case of the same nature in which the independence of the judiciary as a distinct arm of
government was diluted is the case of the Commissioner of Police v Commercial Farmers Union.
Clearly the concept of rule of law was discarded in this case. Jeremy Waldo explains that, “Rule
of law is the image of a land where everyone is subject to the same rules, where they are applied
scrupulously and impartially by the officials who take that as their vacation.” In Zimbabwe the
principle of rule of law has proven to be nothing more than a romantic idea. The then Attorney
General Chinhengo J is believed to have said that the, “decision of whether the question of where
and when to enforce court orders is a political and not a legal.” In this way, the courts ' powers
are limited and hampered through carrying out their duties of ensuring justice for all.

It is with misfortune that evidence to support the notion that certain court orders were not
respected by the government because some members of the bench have been known to be loyal
to the executive making decisions in favour of the ruling party is tangible. A number of judges
were offered farms by the government hence the problem arose when the same judiciary was
expected to adjudicate fairly on the matters of those deprived of their rights via the Fast Track
Land Reform Programme. This impacted negatively on its independence as most of them had to
make decisions that did not compromise their loyalty to the top offices of government. Once

39
again, the decision-making process was no longer based on the principle of wrong and right, but
on job security. The adage that the piper pays accurately defines the judiciary's position.

4.3 RECOMENDATION
Due to the uncertainty showed by scholars and the general public on the nexus between the
doctrine of separation of power and judicial independence, the researcher found out that there is
a need for some changes in the judicial system. The changes should be first undertaken in the
JSC which is the administrative body responsible for the day to day running of the judicial
activities. The appointment of the members of the JSC should be autonomous from the
executive. This enables it to perform its duties without being influenced and controlled by the
executive hence promoting judicial independence. The researcher suggests that the
parliamentarians should have a hand in the entire appointment process of commissioners. This is
because since parliament consists of a lot of people, final decisions concerning the appointment
of the commissioners are met after some discussions instead of having the president to appoint
some commissioners since those appointed by the president are more likely to appoint the
judicial officers on courteous . While different stakeholders have made some efforts to support
the constitution to address the major issues that mainly affected the judiciary, as it is the branch
of government that is responsible for maintaining order in the state.

The study recommends raising awareness of issues related to the doctrine of power separation
itself and the legal framework surrounding the judiciary to the public. The research also suggests
that there should be a provision in the constitution that guarantees the budget of the judiciary as a
percentage of the national budget. Based on the speech by the CJ in which he condemned the
spread of bribery in the judiciary, the researcher suggested that very high salaries should be
justified for judges and should not be reduced to immunize them from the temptations of
corruption and bribes.

The executive also should not have a hand in the setting of the salaries of the judicial officers.
Provisions should be made to guarantee the judiciary's spending as a percentage of the national
budget. The fixed budget reduces executive and legislative influence over the judiciary. It
encourages them to conduct and enact their law-based judgments and apply the law impartially
instead of making decisions in favour of political issues to gain financial benefits.

40
To protect the Judiciary from meddling by the Executive and the Legislature when faced with a
politically sensitive matter, the removal of the bench should be passed by both houses of the
parliament. An illustration where this has proved effective is the case of the United Kingdom,
judges of the high court and the Supreme Court cannot be excluded from tenure without an
address passed by both houses of assembly. This is very significant as transparency is
guaranteed.

41
 CHAPTER 5

CONCLUSION

The search above sought to scrutinize the nexus between the doctrine of separation of power and
judiciary independence during the period under review. Indications show that the executive and
legislative had a negative impact on the judicial independence. This is revealed by some of the
verdicts delivered in favour of the government and some verdicts which were influenced by
individuals which hold positions in the executive and legislation not to mention how some
verdicts were disrespected. The crises that arose include the epidermis of the Fast Track Land
Reform and visibility of a rooted dictatorship among others. The fast track land reform
programme that was carried out was a clear illustration of how the principle of rule of law has
been washed away though some scholars lamented it was a necessary evil and the ruling party
ZANUPF together with the war veterans’ claimed that it was their motherland it was a litigation
of taking back what’s belong to the black people

A rooted dictatorship has also been the cause of a biased judicial system in Zimbabwe. Acts of
parliament like AIPPA and POSA are alleged to have been activated and be given power to pin
down opposition parties and influential individuals. Despite the fact that some of the acts of
parliaments violate human rights, the courts hardly have room to act as a precursor. The courts
have at often number of times failed to protect the majority against government abuse thus the
hands of the bench are tied leaving the populace vulnerable to tyrannical tendencies. The final
thinking comes down to this, the country's political dilemmas between 2000 and 2016 had a
negative impact on the bench's autonomy.

Most of the judicial proceedings are carried out by the executive, e.g. the appointment process,
the dismissal of the judges as well as the appointment of the tribunal to investigate cases of
corruption and abuse of office by judges, thereby providing a clear indication of a regulated
administrative judicial system. The researcher also found out that the doctrine of separation of
power impact on judicial independence cannot be overruled because it also improved
transparency and accountability in process of appointing the judicial officers by publishing any
vacancy which arise in the judicial sector, introducing the public interview for the candidates as

42
well as putting emphasis on meritocracy hence promoting professionalism and minimizing the
appointment of judges on political grounds

43
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www.mg.co.za/article [accessed 8 September 2019].

Roosevelt,K.(2014).Judicial Activism. Available at: www.britannica.com/EBcheckd/topic/.....

[accessed 1 October 2019].

Saki, O. (2007). The Law in Zimbabwe. Available at: www.nyulawglobal.org/..zimbabwe htm

[accessed 12 September 2019].

Shadow Report on the African Commission on Human and People‟s Rights. (2007). Zimbabwe:
Human Rights in Crisis. Available at:

http://www.refworld.org/docid/465c226ab4.html [accessed 25 September 2019].

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Zimbabwe Human Rights NGO Forum. (2001). Enforcing the Rule of Law in Zimbabwe.
Available at: http://hrforumzim.org/wp-content/uploads/2010/06/SR29 [accessed 11 October
2019].

JOURNALS

Gerwitz,P. 1989. Realism in Separation of Powers Thinking. William and Mary Law Review.
Volume 30 Issue 2 Article 9. 343-354

Madhuku,L. (2002). Constitutionsl Protections of the Independence of the Judiciary: A Survey of

the Position in Southern Africa. Journal of African Law. 232-245

Bridge.(2007). Constitutional Guarantees of Independent Judiciary. Netherlands Law

Association. Electronic Journal of Comparative Law. Volume11.3 Available at:
www.ejcl.dg/113/article1131-24.pdf [accessed: 17 August 2019]

NEWS PAPERS

Mahoso, T. (2016). Judicial Independence: Opposition to the People? The Herald, 6 April, 7

Nkiwane, J. (2017). Judicial Activism in Zimbabwe‟s Judges. New Zimbabwe, 17 October, 8

Magaisa.A.(2016).Executive and Legislative on Judicial Independence. The Sunday Mail,9

September,13

INTERVIEWS

Chingwere, F. (37) Lawyer,Ministry of Justice,Harare,09/08/2019

Gore,P.(56)Records Manager,Magistrate court,Kwekwe,15/09/2019

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Midzi,D.(49)Cleck,High Court,Gweru,07/08/2019

Mupungu F.(60)District Administrator,Kwekwe,15/09/2019)

49
Appendix 1: Interview guides for the member of the Judiciary service and those in the offices of
the public.

Introduction

My name is SHEPHERD CHINGWERE (R162792Z), undertaking BSc in Politics and Public

Management Honours Degree at Midlands State University. I am carrying out a research on the
nexus between the doctrine of separation of power and judicial independence: The Case Study of
Zimbabwe 2000-2016 in partial fulfilment of the requirements of BSc in Politics and Public
Management Honours Degree. Therefore, I am kindly seeking your assistance by responding to
the questions below. Your views and opinions on the subject matter will be greatly appreciated.
Please note that the information provided will be used for academic purposes only and
confidentiality is guaranteed before, during and after the study.

Instructions.

a) Please respond to all questions.

b) There are no right or wrong answers, hence please give the response that is closest to your
opinion.

c) Please note that all your responses will be treated with strict confidence and the study will be
used for academic purposes only.

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CONSENT FORM FOR INTERVIEWS.

I volunteer to be interviewed as part of the research project conducted by Shepherd Chingwere, a

student at the Midlands State University. I understand that the project is designed to gather
information on nexus between the doctrine of separation of power and judicial independence in
Zimbabwe.

I understand that:

1. My participation in this project is voluntary. I may withdraw and discontinue participation at

any time without penalty.

2. If I feel uncomfortable in any way during the interview session, I have the right to decline to
answer any question or to end the interview.

3. The interview will be tape recorded.

4. I understand that the researcher will not identify me by name in any reports using information
obtained from this interview, and that my confidentiality as a participant in this study will remain
secure.

5. I have read and understand the clarification provided to me and I voluntarily agree to
participate.

6. I have been given a copy of this consent form.

Signature------------------------------------- Date-------/----------/------------

Stamp

51
Interview Questions

1. What is separation of power and judicial independence?

2. How does the doctrine of separation of power influence judicial independence in

Zimbabwe?

3. What are the powers are given to the members of the bench when it comes to decision
making process?

4. How can you describe the relationship the executive, the legislation and the member of
the judiciary?

5. What are the roles and functions of the judiciary service commission and that of the
executive?

6. How effective are the MPs in influencing in decision making process to the judiciary?

7. Does executive and legislative influence pretentious execution of duties by members of

the bench and leave room for appropriate checks and balances against purely political
appointments?

8. Have members of the bench ruled in favour of government when confronted with
politically related cases or cases that involves the executive members?

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