In de­fence of our democ­racy

Chronicle (Zimbabwe) - - Opinion/national News -

Judges only up­hold con­sti­tu­tional pro­vi­sions. It is the Con­sti­tu­tion which al­lows peo­ple to demon­strate or to pe­ti­tion their Gov­ern­ment, not judges.

In this case, what Pres­i­dent Mugabe said could not be al­lowed to con­tinue are “vi­o­lent demon­stra­tions”. To the best of my knowl­edge, lim­ited though it is, there is no pro­vi­sion or sec­tion in our Con­sti­tu­tion which per­mits “vi­o­lent demon­stra­tions” and as such there can be no way a judge could pos­si­bly sanc­tion one.

To then claim that Pres­i­dent Mugabe at­tacked or in­tim­i­dated the Ju­di­ciary for sanc­tion­ing some­thing that doesn’t ex­ist in the Con­sti­tu­tion, that is, a “vi­o­lent demon­stra­tion”, is mis­chief.

It cheap­ens the se­ri­ous work judges are im­pelled to per­form by the Con­sti­tu­tion.

In fact, there ap­pears to be de­ter­mined ef­forts by op­po­si­tion politi­cians and sec­tions of the me­dia to drive a wedge be­tween the Ju­di­ciary and the Ex­ec­u­tive, or to turn judges into po­lit­i­cal crea­tures, and to in­sin­u­ate that they dis­tort judg­ments pur­suant to undis­closed po­lit­i­cal agen­das.

That is the mis­chief, Jus­tice Priscil­lah Chigumba demon­stra­tions for seven days to al­low the State to put its pa­pers in or­der.

She said the pur­ported ban was un­pro­ce­du­rally done and thus in vi­o­la­tion of the Con­sti­tu­tion. She said it was not the role of po­lice to make laws via statu­tory in­stru­ments.

Like we pointed out in yes­ter­day’s pa­per, the State bun­gled its own case. There was noth­ing about the judge tak­ing a per­sonal or po­lit­i­cal po­si­tion in her rul­ing. She sim­ply stated the law.

For some­one to then read in that rul­ing “an is­land of de­fi­ance” of the Ex­ec­u­tive by Jus­tice Chigumba is most strange, not least be­cause her pream­ble to the rul­ing re­moves all per­sonal in­ter­est or views from it. She is stat­ing the law in its cold prin­ci­ple, with­out emo­tion or seek­ing to chal­lenge, let alone defy the Pres­i­dent.

The judge’s pream­ble is very im­por­tant. It is op­po­si­tion po­lit­i­cal par­ties them­selves which have of­ten made scur­rilous claims about Pres­i­dent Mugabe pack­ing the court with Zanu-PF sym­pa­this­ers.

If the op­po­si­tion par­ties who are wont to com­plain about a com­pro­mised Ju­di­ciary when judg­ments are de­liv­ered against them.

They have sought to im­pugn the in­tegrity of the Ju­di­ciary by claim­ing de­ci­sions which go against their in­ter­ests are po­lit­i­cally mo­ti­vated.

Jus­tice Chigumba has done her duty; the law must be fol­lowed scrupu­lously, and ju­di­cial pro­nounce­ments read as such, with­out im­put­ing po­lit­i­cal mo­tive to them. She hasn’t done ei­ther the pro-demon­stra­tions or those against any favour.

Which takes us to the heart of the demon­stra­tions them­selves, and more im­por­tantly, some of their de­clared aims and ob­jec­tives.

There were protests against SI 64 of 2016 ban­ning im­ports which came into ef­fect on July 1 2016. Then kombi driv­ers said there were too many road­blocks and that po­lice were ex­tort­ing bribes.

Now there is Nera and Ta­ja­muka say­ing they want to force Zanu-PF and Pres­i­dent Mugabe to re­lin­quish power.

Now Tendai Biti who won the day is not just a prom­i­nent op­po­si­tion fig­ure and a lawyer. His party is part of Ner­awhich is push­ing for more demon­stra­tions (hope­fully only those per­mis­si­ble by the Con­sti­tu­tion).

He knows more than an av­er­age demon­stra­tor the ways of the law and the Con­sti­tu­tion. He knows how lead­ers come by power in a democ­racy. They are voted oted in and out. Nowhere does our Con­sti­tu­tion le­galise lise demon­stra­tions to re­move an elected pres­i­dent fro­mom power.

The peo­ple al­luded to by Jus­tice Chigumba are the ul­ti­mate au­thor­ity on how lead­ers get into power, not demon­stra­tors. Some of the demon­stra­tors voted for the cur­rent Con­sti­tu­tion in 2013.

We don’t be­lieve Biti ex­pects judges to make “braveave judg­ments” in fu­ture in sup­port of those who seek to un­con­sti­tu­tion­ally-re­move an elected gov­ern­mentnt from power through demon­stra­tions, vi­o­lent or r other­wise, nor the same judges to be le­nient with those who de­stroy property and vi­o­late the rights of oth­ers pur­suant to their demo­cratic right to demon­strate.

That would cer­tainly be care­less and neg­li­gent. It’s a fair deal. There is no pro­vi­sion for vi­o­lent demon­stra­tions in our Con­sti­tu­tion. You can get your pound of flesh Shy­lock, but no drop of blood on the floor.

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