There is an orchestrated plan to hound out high court judge Charles Hungwe, who has recently made rulings that are not favourable to the government and Zanu-PF, the Mail & Guardian has learnt.
Officials at the Supreme Court say on Tuesday afternoon Supreme Court Chief Justice Godfrey Chidyausiku called judge Hungwe into his chambers and advised him of the state's intentions to institute an inquiry under section 87 of the Constitution into his conduct in an unspecified case. Section 87 provides for an exclusive procedure for the termination of a judge's appointment through the setting up of a tribunal.
Sources privy to the deliberations at Tuesday's meeting said the meeting was brief, and Chidyausiku made reference to Hungwe having to clear his name through a formal process following continued publication of articles questioning his handling of the release of Beatrice Mtetwa and the delay in sentencing a man convicted of murder in 2003.
It was not clear how Hungwe said he would proceed. President Mugabe will likely suspend Hungwe and appoint a tribunal to look into the charges.
Judge Hungwe has recently come under fire in the state media after granting a court order for the release of prominent human rights lawyer Beatrice Mtetwa and issuing a search warrant to Zimbabwe Anti-Corruption Commission investigators probing graft in government ministries.
A Zanu-PF politburo member told the M&G that Hungwe had been identified as a threat to the party who could derail the indigenisation programme on which the party will base its election campaign.
A plan to investigate
A senior official in the government's information department said there was a plan to investigate judge Hungwe's private life, where there were allegations that he had extra-marital affairs, and to probe how he had obtained farming inputs for his Darwendale farm with a view to orchestrate fraud allegations against him.
An official with the registrar's office at the high court also told the M&G that ministry of justice officials and a Zanu-PF politburo member were researching past and current cases handled by Justice Hungwe, with the aim of creating the impression of "improper and unprofessional conduct" that would ultimately paint him as being "unfit to remain in office".
Hungwe refused to comment.
Clerks at Harare's high court, who spoke to the M&G on condition of anonymity, described "mounting tension" because of political interference in the determination of cases.
High court clerks act as secretaries to high court judges. According to the clerks, the judges are concerned that their hands are tied "in responding to each and every allegation raised through the media" many of which appear to be politically motivated.
The M&G has established from high court clerks that the judges are holding meetings with Judge President George Chiweshe to raise concern about perceived malicious attacks aimed at the judiciary.
Some of the senior officials linked to the corruption probe for which Hungwe granted a search warrant are Youth and Empowerment Minister Saviour Kasukuwere; Mines Minister Obert Mpofu; the chairperson of the Zimbabwe Mining Development Corporation, Godwills Masimirembwa; and the former deputy finance minister and chairman of the National Indigenisation and Economic Empowerment Board, David Chapfika.
"Political pressure"
"There is a feeling that political pressure reminiscent of what happened to former chief justice Antony Gubbay's bench, which was forced out, is playing out again, this time targeting black judges considered anti-establishment," a high court clerk said. "There appears to be a clear spirited media campaign to hound Justice Hungwe out."
Justice Minister Patrick Chinamasa said he was not aware of any attacks on Hungwe.
"I have been out of the country for quite some time and need time to familiarise myself with what has been going on," Chinamasa said.
However, Chinamasa's deputy Obert Gutu, said that the attacks were designed to compromise the integrity of the bench, maligning judges in pursuit of political vendettas.
"The malicious and malevolent personal attacks on Judge Hungwe are a clear manifestation of the fact that certain corrupt elements in Zanu-PF are feeling the heat generated by the indigenisation scandals," Gutu said.
"There are rabid malcontents within the ranks of Zanu-PF who will stop at nothing in ensuring that numerous corruption scandals that surround the indigenisation programme are not unmasked. Some very corrupt politicians and their sidekicks were on course to make huge personal gain from indigenisation deals. Now the scandals have been exposed, these kleptocrats and thugs are not amused," Gutu said.
An obstacle
Gutu said Hungwe had been identified as an obstacle because he had tenaciously and fearlessly applied relevant law to the facts.
The government-controlled daily, the Herald, last month quoted a senior advocate accusing justice Hungwe of "criminal negligence" for allegedly failing to sentence Jonathan Mutsinze over the past seven years after convicting him on a charge of robbery and murder.
The trial record kept by Hungwe "has never been seen again" and the sources indicated that it was a case of "gross incompetence or criminal negligence on Hungwe's part, whose delayed sentence is nothing short of an inexcusable scandal which smacks of corruption of the criminal justice system".
High court sources revealed that Mutsinze had not been sentenced since 2003 because his trial court records had disappeared, including audio recordings of proceedings. They said Hungwe had written several letters (seen by this paper) to the master of the high court, Charles Nyatanga, requesting an investigation into how the records had disappeared and any information that could assist him to pass sentence after the conviction.
"Those letters are available, but lawyers are roped in to comment on a fictitious incompetence of a high court judge in the press without establishing why the judge is unable to pass sentence," the court clerk said.
The paper also accused Hungwe of conducting "midnight justice in the dead of night at his Darwendale farm", where he granted an order for the release of Mtetwa. The paper said the order was wrong as it was granted without a representative from the attorney general's office. But Mtetwa's lawyer, Harrison Nkomo, told the M&G that Judge Hungwe had done nothing wrong.
"There are applications that are done without notice as provided for in the high court rules. As regards the order being granted at the farm, the high court is not a building where the judge is. Concerning the midnight order, this has always been the case; many urgent matters are argued in the evening," Nkomo said.
Clerks also said that judges perceived to be anti-establishment were increasingly subject to administrative frustration relating to the service of vehicles and settlement of cellphone bills.
The clerks cited the removal of high court registrar Elijar Makomo after he gave Justice Hungwe the papers to sign the anticorruption commission's search warrant.
"He was transferred to Harare, where he is now a magistrate, down from being a registrar of the high court," a clerk said.
The order to transfer Makomo "was never clearly explained to him. But he certainly knows who calls the shots and why he has been transferred," he said.
A sense of déjà vu
Derek Matysak, a constitutional law expert and a director of the Research and Advocacy Unit, a non-governmental law-research group, said the attacks on Hungwe prompted a sense of déjà vu with regard to what happened to supreme court judges who were hounded out in 2002.
The Law Society of Zimbabwe has weighed in with its concern about media attacks on the judiciary, which it said impugned "the institution and independence of the judiciary, removed confidence in the judiciary and the whole administration of justice."
l Meanwhile, acting Supreme Court judge, Justice Yunus Omerjee, who once attacked President Robert Mugabe for using Chinamasa to appoint pliant judges to the bench in whistleblower diplomatic United States cables, resigned on Thursday under unclear circumstances.
In a statement, Ormerjee who has served as a judge for the past 14 years, said his decision "arises from the state of my physical health". In diplomatic cables released by Wikileaks last September 2011, Omerjee said the central intelligence organisation was watching certain judges very closely, including conducting physical surveillance, tapping their phones and intercepting their emails.
Omerjee reportedly told American diplomats that President Mugabe would do "whatever is necessary to remain in power". He described chief justice Godfrey Chidyausiku as a "rabid party man through and through".
Since his elevation to the Supreme Court two years ago, Omerjee has been in an acting capacity and was not sworn in by Mugabe. Omerjee was supposed to have been sworn in in March 2012, together with two other high court judges, but he was reportedly out of the country. Chinamasa had said he was going to be sworn in later during that year.
Judgments that raised Zanu-PF ire
Some of Justice Charles Hungwe's well-known rulings over the past decade include:
2003: Ordering police to bring American journalist Andrew Meldrum, who was about to be deported, to a hearing, saying that he "must enjoy his freedom" until a court hears his case. Meldrum was deported nonetheless.
2005: Releasing businessperson Philip Chiyangwa, charged for spying for South Africa, saying he was being held on "vague and imprecise" evidence.
2006: Ordering the release of suspects charged with keeping an arms cache. The group included Movement for Democratic Change MP Giles Mutsekwa and two other party activists. He issued a strongly worded ruling criticising police for torturing some of the suspects.
2008: Dismissing a bid by Nolbert Kunonga, a controversial Zanu-PF-aligned Anglican bishop, to hold on to Anglican property.
2009: Validating a claim by Africa Consolidated Resources that it is the rightful owner of vast diamond claims in Chiadzwa, which were seized by the government. Hungwe later reversed his own ruling.
2013: Dismissing a state appeal for a tougher sentence for an activist, Munyaradzi Gwisai, and his colleagues, who were convicted of conspiring to commit public violence.
Other judges who had to quit
Benjamin Paradza
In 2006, high court Judge Benjamin Paradza fled the country, reportedly by catching a lift on a freight truck. He had been accused of trying to influence fellow judges to release the passport of a business partner, safari hunter Russell Labuschagne, accused of murdering a poacher. He denied the charges, saying he was being persecuted for his independent rulings.
Paradza was arrested in his chambers, contrary to the law that bars police from such action. He has since been accepted to the bar in New Zealand.
Anthony Gubbay
In 2002, Gubbay quit as chief justice after several dramatic events that included having his chambers invaded by war veterans and a run-in with Justice Minister Patrick Chinamasa.
Gubbay had ruled that farm invasions, which had begun in 2000, were against the Constitution. In reaction, a group of war veterans, led by Joseph Chinotimba, invaded the Supreme Court in November 2000. No arrests were made and Gubbay quit after the government said it could not "guarantee his safety".
Fergus Blackie
In 2002, Blackie retired five years before he was due to leave the bench. He had ordered the arrest of Chinamasa for contempt of court, after the minister had publicly denounced a court ruling.
Blackie was already a marked man because many in the government felt he was a defender of white privilege. In 1995, he had held a night sitting in a police station to free two white farmers arrested for illegal possession of weapons. He had travelled in the same car as the defence lawyer, it was pointed out at the time.
Who is Charles Hungwe?
The possible departure of high court Judge Charles Hungwe, an independent voice in Zimbabwe's judiciary, could be part of a wider plan to cow the Bench.
A United States embassy cable leaked by WikiLeaks in 2009 described Hungwe as "perhaps Zimbabwe's most independent judge", praise that would have been received well by many in the legal fraternity, but it may well have sealed his fate.
Judges can be removed only when they are unable to discharge their duties because of "infirmity of body and mind" or for "misbehaviour". A tribunal must be set up to investigate a judge before presenting its findings to the president.
Legal experts this week said that, judging by the slant of media reports, Hungwe may soon be accused of "gross incompetence" and declared unfit to hold office.
According to the law, the president appoints judges after consultations with the Judicial Services Commission, which comprises the chief justice, chairman of the Public Service Commission, the attorney general and two other presidential appointees.
Hungwe, known for sternly worded and frank rulings, has rubbed the establishment up the wrong way for years.
A veteran of the liberation war and a former chair of the Zimbabwe National Liberation War Veterans Association, Hungwe once drew the ire of ex-combatants when he said the association needed to become "independent, not partisan".
Zanu-PF's relations with the judiciary soured in 2000, when the courts ruled against land invasions. The Bench of the Supreme Court, at the time dominated by white judges, had ruled that the invasions infringed upon property rights.
The government said the court was stuffed with "colonial relics" and began a process to cleanse the Bench of dissent. The purge went beyond ridding the Bench of those seen as sympathetic to white farmers, but also targeted judges who were viewed as independent. – Jason Moyo