Capturing the Judiciary: Reality or Phantom?

Introduction

The recent ruling by the High Court of Zimbabwe reversing the cancellation of vacancies by the same court and Zimbabwe Election Commission (ZEC) and further the reversal of the cancellation setting a new date for nomination for the six (6) constituencies has brought to the fore hitherto questions about the independence of the judiciary. Does this case add evidence to these allegations or rather strengthens assertions of independence? There can never be an exhaustive conclusive finding to these aspersions, at least not in this paper. Rather, the brief aims at opening further debate on what capture of state institutions really mean, principles or tenets of capture vis a vis the status quo in Zimbabwe.The brief builds a case around dwindling trust in all state institutions rendering national decisions subject to bi-polar reactions devoid of merit.This becomes the major conundrum going forward.

Defining judiciary capture

Alex Magaisa states that “The concept of judicial capture can be understood as the antithesis of judicial independence. In a broad sense, it describes a situation where the institution of the judiciary has lost its independence. In a narrower sense, it refers to a situation where individual judges have fallen under the control of private interests” Sections 164 and 165 of the Constitution of Zimbabwe clearly spell out the need for non-interference with the Judiciary and principles guiding judiciary independence and the confidence derived thereof.

ZEC powers to affect law making

The case on ZEC independence is largely built on the basis that they require the Minister of Justice to approve/facilitate their law-making function,without which they cannot directly interface with the Parliament of Zimbabwe for law making purposes. In a statement announcing the cancellation of Nomination Court seating for the six PDP constituencies the Chief Executive Officer of ZEC, Utoile Silaigwana, stated that “The proclamation calling for by-elections issued by His Excellency the president in terms of Statutory Instrument 1 of 2022 on 6 January 2022 is accordingly amended.” This by all means confirms the long-held suspicion that ZEC’s insistence on limited law-making functions if therefore selectively applied. This is concretized by the fact that a day later, after another court ruling, ZEC turned around and said they need to check the legal feasibility of reopening Nomination Court which they did nevertheless.

Read the full brief here (1MB PDF)

Source: CIASA