According to the Bangalore Principles of Judicial Conduct ‘, the judiciary needs to be independent of outside influence, particularly from political and economic powers.’ This article is written against the back-drop of the much contentious MDC-T leadership and logo brawl between the two Vice-Presidents, Nelson Chamisa and Thokozani Khupe both contending for the party presidency after the demise of the party’s long-time leader Morgan Tsvangirai. After a thorough analysis of the events which followed MTs departure, up to Justice Francis Bere’s 24 April, 2018 landmark ruling on the MDC-T party’s logo and the comments that followed, I thought it is critical to revisit this issue from a normative legal perspective and examine how this can be underlined as a ‘classical case of judicial overreach.’
By Tendaishe Tlou
Above, I have deliberately cited the Bangalore Principles because they form the core of judicial conduct when sometimes politics and the economy try to drag the Judiciary into their woes. A clear line needs to be drawn between politics and judicial processes. Indeed, judicial independence is founded on public trust and to maintain it, judges must uphold the highest standards of integrity. This case reminds me of the Zuma-Parliament 2017 impeachment impasse wherein the opposition party D.A had developed the tendency of taking matters that were supposed to be dealt with in Parliament level to the Court. Although a majority judgment was passed stating that Parliament had failed to deliver its mandate, the Chief Justice Mogoeng Mogoeng dissented that it was a ‘classic case of judicial overreach’ wherein the Judiciary is dragged into political issues that are supposed to be dealt with by the Legislature. For weeks, he was ridiculed and made unpopular for taking this stance. Earlier on in my analysis, I clearly noted that the Judiciary must not be dragged into politics and vice-versa. I am of the view that recent developments in party politics might compromise judiciary independence and integrity, whilst the judgement of High Court judge Justice Bere reinforces them.
In the past few years since 2000 when the government started adopting some controversial policies, the justice system made judgments which were dubbed ‘unpopular’ by the governing party, but were equally in the best interest of maintaining the independence and integrity of the Judiciary. However, judges were attacked left, right and centre by the Executive and in most cases relieved of their duties forgetting that judges are bound by principles of judicial conduct. Whilst the Justice clearly acknowledged that both arguments tabled by the plaintiff and defendant were appealing, he quickly referred them back to the party’s constitution and recommended adoption of arbitration. I concur with the Justice because, just like in International Law, any court must intervene when the applicant (s) have exhausted all internal remedies. In this case, the MDC-T must revert back to the party constitution; seek redress through the National Council and at the apex of it all through the Congress. The issue of the party trademark (name and logo cannot be resolved in the court of law as this is a peripheral issue brought ‘prematurely to the High Court, ’as this matter is closely tied to the issue of legitimacy.
The Court avoided a situation whereby it is seen to be taking sides. If the Judge is perceived to have ruled in favour of the Chamisa camp, then he would be viewed being unfair to the Khupe camp, hence judicial integrity is compromised and the Judiciary loses public trust. The Judiciary must not be seen as siding with anyone. Against this background, the MDC-T must firstly revert back to constitutionalism, bring in an arbitrator, consult with the National Council and if need be convene a Congress where a legitimate leader of the party is officially voted for and inaugurated. Otherwise, this idea of dragging the courts into politics will continue and will seek to compromise judicial independence and integrity, perpetuating judicial overreach. This is a lesson to all political parties in Zimbabwe that they must not force the hand of the Judiciary by sucking it into internal altercations, but rather resort to utilizing and exhausting all internal party processes before running to the courts for redress of internal party conflicts or else the court will reiterate what party processes dictate to the frustration of applicants. The Chamisa camp’s utterances that Justice Bere’s judgement was “political, controversial, appeal-able and contestable… the judgment changes nothing,” is indeed regrettable and unfortunate. It is equally the duty of political parties and every citizen to respect court judgement and accept the outcome when they approach them bearing in mind that judges are bound a set of principles of judicial conduct so that everyone is treated equally before the law.
T.Tlou is a researcher and writer. These are his personal views and no other person or organisation should be implicated in his arguments.
