President Emmerson Mnangagwa has spoken on the importance of judicial independence.
“In Zimbabwe, the independence of our judiciary is vital to the survival of our democracy. When our courts speak, all Zimbabweans should listen,” he tweeted on Tuesday.
Justice, Legal and Parliamentary Affairs permanent secretary Virginia Mabiza had earlier reiterated government’s respect to the principles of the separation of powers as enshrined in the Constitution.
The administration is in damage control mode after Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi touched off a storm last week when he rubbished the judiciary as “captured” by foreign forces following the High Court ruling that Luke Malaba was no longer the Chief Justice or judge after attaining a retirement age of 70 years.
It was an attack that rattled observers: How a lawyer by training had the guts to rubbish the learned profession? The Zimbabwe Human Rights NGO Forum said in a letter to the Registrar of the High Court of Zimbabwe they believed Ziyambi’s statement “scandalises” the court and he is “in contempt of court”.
The judiciary is one of the three arms of the State alongside the executive and the legislature. There should be checks and balances among the three arms. This doctrine was propounded by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, popularly known as Montesquieu. The doctrine is an expansion of the theory advanced by social contract theorist John Locke who had argued for the separation of legislative powers between the king and parliament.
In his seminal work, The Spirit of the Laws, published in 1748, Montesquieu posited that if the legislative and executive powers are combined in the same organ, the liberty of the people gets jeopardised as it leads to tyrannical exercise of these two powers.
He argued that if the judicial and legislative powers are combined in the same organ, the interpretation of laws becomes meaningless as, in this case, the law-maker also acts as the law interpreter and he never accepts the errors of his laws.
If the judicial power is combined with the executive power and is given to one-person or one organ, the administration of justice becomes meaningless and faulty because then the police (Executive) becomes the judge (judiciary), Montesquieu argued.
In his final analysis, if all the three: legislative, executive and judicial powers are combined and given to one person or one organ, the concentration of power becomes so big that it virtually ends all liberty. It establishes despotism of that person or organ, Montesquieu posited.
Montesquieu’s views were also buttressed by United States’ fourth President James Madison.
“The accumulation of all power, legislative, executive and judiciary in the same hands, whether of one, or few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny,” Madison said.
The doctrine of separation of powers is tried and tested and has been incorporated in national constitutions across the globe.
As a constitutional democracy, Zimbabwe has to give assurance that it adheres to the doctrine. Government should walk the talk and go beyond the statements as Zimbabwe is not a banana republic.
