The Judiciary

If Parliament has a marginal role in the vital area of state security, the judiciary is considerably more active in this field than in Rhodesia. The courts are independent of the executive, and judges have manifested a commitment to conduct fair trials and safeguard the rights of suspects. Much to the Government's credit, it has not attempted to pack the bench with political appointees tied to the ruling party. Individual infractions of the Declaration of Rights can now be brought before the courts. Although the continuing state of emergency has suspended important safeguards in the Declaration of Rights, in security cases the courts have ruled against the executive. Not only have they acquitted a number of prominent individuals accused of security offenses, they have reached decisions that have made slight inroads into the emergency laws. The Supreme Court's 1984 decision invalidating the indemnity regulations for the security forces is one case in point. Yet both in defending persons accused of security offenses and in ruling on the constitutionality of security measures, the judicial system presents a very limited check on executive abuses of power.^[71]

Although it has secured a number of convictions on security charges, the Government has failed in several critical trials (e.g., of opposition politicians and senior military officers). These defeats have resulted from poor prosecution, denial of legal representation to the accused, insufficient evidence, spurious charges, and the discovery of forced confessions (following threats and torture). In a 1984 case, High Court Justice Tony Smith castigated the CIO for repeatedly denying the accused in se-

[70] Hatchard, "Emergency Powers."

[71] Zimbabwe's courts seem more vibrant than those in many other African states (see Steven Pfeiffer, "The Role of the Judiciary in the Constitutional Systems of East Africa," Journal of Modern African Studies 16, no. 1 [1978]: 33–66).

curity cases access to legal representation: "This court takes a very serious view of such deliberate flouting of the provisions of the Constitution by the CIO officers."^[72] Other similarly critical comments have been issued by the bench.

On several occasions, the executive's irritation with judicial decisions has resulted in fierce public attacks on the loyalty and integrity of the courts. The harshest attack was issued by the Minister of Home Affairs on 13 July 1982:

The manner in which our law courts dispense justice is gravely frustrating and undermining the work of law-enforcement agencies like the police. The security of the state is sacrificed on the altar of individual liberties. People who are engaged in activities designed to threaten the welfare and security of the state are either freed by the courts or go off very lightly.... It appears that the courts are sowing seeds of a revolt against the government and encouraging the sudden growth of the dissident element in Matabeleland.... Recalcitrant and reactionary members of the so-called Bench still remain masquerading under our hard won independence as dispensers of justice or, shall I say, injustice by handing down perverted pieces of judgment which smack of subverting the people's government.... Stated differently, what is the use of having good laws, good law enforcement agencies and bad law courts which could be construed as comprising a hostile Bench?^[73]

Decisions in security cases unfavorable to the regime have been interpreted by some in the executive as symptomatic of a lack of concern for state security or, worse, support for armed dissidence. The judiciary has been accused of harboring a fundamental disloyalty to the "people's government," a colonial mentality, a "class bias," and using double standards.^[74] More common have been complaints that the courts have released "guilty" defendants on legal "technicalities" or procedural "errors."^[75] One minister summarized the problem by noting that the courts are "not in tune with the present government."^[76] In reference to the wayward courts, he declared, "Until such time as we have all the machinery of state acting in concert for the same ... objectives, it must be neces-

[72] Justice Smith, quoted in John Hatchard, "The Right to Legal Representation Must Be Upheld," MOTO, December 1984-January 1985, p. 23.

[73] Assembly Debates, vol. 5, 13 July 1982, cols. 630–34.

[74] Minister of Home Affairs, quoted in the Times, 9 September 1983 and Herald, 16 February 1983.

[75] Some less influential ministers have been staunch defenders of the independence of the judiciary (Africa Confidential, 17 July 1985, p. 2).

[76] Minister of Home Affairs, Christian Science Monitor, 2 September 1983.

sary to adopt extreme measures for the preservation of the security of the state."^[77]

The deviations of the courts in security cases have been used to excuse executive reversals of judicial verdicts, such as the Minister of Home Affairs' immediate redetention of persons acquitted in major security cases. Under emergency regulations the courts may not challenge summary redetention, which has been justified on grounds that "Government has more facts than the Court and some facts derive from our security sources and intelligence sources."^[78] The Government's poor record in security cases dealing with prominent political opponents (as distinct from insurgents) seems to have encouraged use of detention without trial.^[79] Several opponents languished in detention for periods as long as four years.^[80]

A Detainees' Review Tribunal (under the Home Affairs ministry) reviews detention orders every six months. This body is reminiscent in several respects of its Rhodesian counterpart created in 1959: it has meager resources, no permanent staff, operates at a slow pace, meets in camera, and is not "bound by the rules of evidence or procedure applicable to any legal proceedings."^[81] Whereas the prosecution in ordinary criminal proceedings must prove a case beyond a reasonable doubt, the tribunal's test is that the detaining authority prove its case on the broader "balance of probabilities." The tribunal formulates its unique rules and procedures, which may vary according to the "peculiarities of each case."^[82] It admits a wide range of evidence—information from sources that cannot be revealed, hearsay evidence—in determining whether a detainee is a threat to state security.

[77] Assembly Debates, vol. 5, 13 July 1982, col. 633; emphasis added. Mugabe has made similar statements (Herald, 27 December 1983). In a speech affirming the state's desire for complete unity, the Minister of State for Political Affairs called for positions in the civil service to be "filled by zealous members of the ruling Party" so that "the Party, the Government, and the civil service would be one thing, pursuing the same objectives" (Department of Information press statement, Harare, 29 August 1984).

[78] Prime Minister, Assembly Debates, vol. 7, 13 July 1983, col. 395.

[79] See Assembly Debates, vol. 5, 13 July 1982, col. 631, and "Court in the Middle," MOTO, June 1983.

[80] In December 1986, the Minister of Home Affairs stated that thirty-one persons were in detention (Bulawayo Chronicle, 5 December 1986).

[81] Emergency Powers Regulations (Statutory Instrument 458/83), section 31(4). The tribunal's small annual budget has varied from Z$1,000 to Z$8,000 (Estimates of Expenditure ), similar to its allocations under the Rhodesian state.

[82] Evans and Hartlebury v. Chairman of the Review Tribunal and Minister of Home Affairs, H.C. 2562/3/84, 12 December 1984, Justice Gibson.

In most cases the tribunal has concluded that detention orders are justified. The tribunal's decisions are not binding, however, on the Minister of Home Affairs. Before 1985, the minister complied with the tribunal's recommendations, but since then he has increasingly overridden the board. Clearly this body constitutes a rather limited check on abuses of executive power.

No official, independent oversight bodies routinely monitor the security organs or have power to investigate public complaints in this area. In the courts, however, a number of security officials have appeared on charges of beating, torture, rape, or murder. Independent reports on human rights concluded that "many political killings from 1982–1985 have not been formally investigated and are unlikely to be," and that no progress has been made in locating those who disappeared during the mid1980s.^[83]

The evidence thus indicates that the wholesale absence of checks and balances on executive power that characterized the Rhodesian state also typifies the new order. Its few mechanisms of accountability are not effective.