Of Judiciary, fight against corruption

Nick Mangwana: View from the Diaspora

The independence of the Judiciary is the bedrock upon which the rule of law is founded. When judges make their decisions, these decisions should be based upon fact and the law. There is always likely to be some attempt at interference from governments, public opinion, media backlash and sometimes from the opposition and the civic society partners. But it is the responsibility of the Judiciary to withstand this pressure and tenaciously protect the constitution.Powerful people and institutions are not keen to subject themselves to the law. This is not just a problem of one country. It happens all over the world. Those who want the rule of law to prevail must respect those who administer that law regardless of how objectionable they find the decisions they made.

Last week, in Britain three judges passed a judgment that caused a lot of raucous and they received a level of savaging in the media which could easily compromise not only their independence but their security as well. All they did was to interpret the law and said that the British government could not initiate the exit from the European Union (Brexit) without going through parliament.

Some felt that the Judiciary was subverting the will of the people and preferring representatives in lieu of the principals. Parliament represents the people. And the over 17 million British people chose to leave the European Union. But the court ruled that this was not enough.

It seems like the court has said that 650 MPs are more important than 17 million people? The effect of this was to delay the negotiations between the British and the European Union. The Pound Sterling will probably continue to take a heavy pounding on the international market adversely affecting the Zimbabwean economy as it cuts the amount of remittances received in Zimbabwe.

It also affects the level of investment the Britain-based Diaspora can make in Zimbabwe. It is not only investment that is affected. Visits home and tourism are affected. There is a tendency by the Diaspora to visit Zimbabwean resorts whenever they are home. So if their spending power is undercut, they will also think twice before making that trip home.

So the delay triggered by this legal opinion from the British Supreme Court has consequences for the sovereign that is Zimbabwe. But what could the judges do? Their duty was to interpret the law.

It is not a popularity contest (especially in jurisdictions where judges are not elected). Some of the headlines against the judges were, “Who Do EU Think you are”, “The judges versus the people”, but the most menacing one was “Enemies of the People”.

While these events were happening thousands of miles away, Zimbabwe was getting its own topsy-turvy legal drama. A top Government official who had been lampooning one institution for weeks ended up submitting themselves to the mercy of that institution.

There is a possibility that the said institution, through its officers, let emotions influence their actions and they grossly contaminated their case. The Constitutional Court was asked to intervene on behalf of this individual. If we go by what’s on social media, it appears that the public is peeved.

They have been baying for the blood of the corrupt for a long time. They thought this time round they were going to get a poster boy for a scalp. But the Concourt was now thwarting them. But is the Concourt’s intervention a good thing?

The system is always more powerful than the individual. This is where the Judiciary (a system as well) comes in to protect excesses against the individual. So the judiciary system works as a countervailing force against the other system.

In this case, the individual who sought legal recourse was right to do so. The courts vindicated him. That does not exonerate him from serious allegations of malfeasance. But whatever the merits and demerits of the case against him, the system should play fair.

Some of us have called one of the people involved in this a vexatious litigant. Maybe so but the fact that he has won some of his cases shows that he also sees the courts as the last bastion of defence for civility. This is a proper use of our system and when our system works as it should all disciples of the rule of law should celebrate regardless of which direction the decision has swung.

Unlawful executive function should be brought under control. Isn’t that the essence of the separation of powers? Zimbabwe’s Judiciary has been getting a lot of vituperation from both the opposition and the civic society.

The irony is that they have been the major beneficiaries of its independence. They give themselves credit when judgments go their way but are quick to scream “compromised judiciary” when the judgments go against them. The vibrancy of our Judiciary should be celebrated regardless of where the judgment swings to.

The rule of law is interpreted by some as meaning only the control of a Government’s executive power. To others it is that every person and institution within our borders should be subject to the law of the land and act within the parameters of that law.

That includes politicians (despite the hard-to-resist temptation to lynch them). Executive action should be subject to permissible considerations. It should meet a minimum set of standards. And if it doesn’t even in a case as exciting as this, due process should be enforced. We are still not under a State of Emergency and the rule of law should apply.

It leaves an uncomfortable lump in our throats but we should ensure that even those that are threatening the security and stability of our country through their corruption are accorded due process. This is because the fight against corruption itself is a fight for transparency and accountability.

Now, if the law enforcement itself is not transparent, there is a risk that it can be corrupted. The reader should remember that at the heart of corruption is institutional weaknesses. You then can’t fight corruption by weakening the institution of the Judiciary.

By merely asserting the oversight role of the Judiciary, you are strengthening an institution which is key in the fight. Of course this may benefit some very unsavoury characters but people should never be bogged down by personalities. This fight is beyond personalities. It is about governance and the strengthening of institutions.

There is an attitudinal barrier that needs to be overcome. It is that even the most villainous characters need protection of the law. A country cannot say they want rule of law and then frown when a person they don’t like asserts their rights under the same law.

They should celebrate the fact that the rule of law has been upheld. Though this reaction is understandable because politicians themselves try to interfere with the functions of the Judiciary.

This makes their appeal for protection from the same Judiciary hard to accept. After all some of them utter prejudice influencing statements which bring pressure to bear on the Judiciary and therefore some feel that they should not benefit from same.

The right to equality and non-discrimination apply to politicians as well even though some of them are quite repulsive individuals and obnoxious specimen of human beings. What overrides any popular sentiment is that trampling even on these individual’s rights is an affront to the rule of law.

The geometry of corruption is very simple; it is asymmetrical to the rule of law. This co-relationship is such that when the rule of law is weak then corruption thrives. If Zimbabwe is failing to curtail corruption, then we might as well make the admission that we have a poor rule of law.

That’s a painful admission to make. But we surely cannot have our cake and eat it. So we need to fight corruption with more vigour and institutional fire in the belly. But in all this we have to resist arbitrariness.

It is corruption to allow arbitrariness to creep into our fight against corruption no matter how popular that arbitrariness would be. Citizens should place their trust in institutions and not individual discretion.

Processes should be defined, clear and consistent. Anything else is using corrupt means to fight corruption. Only in making institutions accountable and transparent can we have an uncontaminated fight.

An exercise of arbitrary powers is ego inflating, enjoyable and even exhilarating, but it is a graveyard where all our freedoms will be buried on the very day we allow it to rule the day.

Regardless of the politics of the day we need to inculcate a culture where the Judiciary is accepted as a universal Insurance Policy against excesses of executive power whether located in the Government, an institution or an individual.

Granted, it is ironic that it is the abusers of due process that rush to assert their entitlement to the same but that should not detract us from cleaning all our systems from corruption and all its attendant potentialities.