March 6, 2003

Discussion on arrest of High Court Judge

Discussion on arrest of High Court Judge

Ten High Court judges on March 5 said the arrest and detention of their colleague Justice Benjamin Paradza in February was not done constitutionally.

The judges said in a joint statement Justice Paradza was supposed to be investigated by a tribunal set up by President Mugabe before any arrest could be made. "We feel strongly that such procedures should be followed before any judge is arrested," said the 10 judges who signed the statement. "Acceptance of the principle that any police officer who may, if he believes that a judge has committed an offence, whether or not his belief is reasonable, proceed to the judge's chambers and arrest him would undermine completely the independence of the judiciary."

The judges who signed the statement were Justices Moses Chinengo, Sandra Mungwira, Lawrence Kamocha, George Smith, Charles Hungwe, Ann Marie Gowora, Yunus Omerjee, Susan Mavangira, Lavender Makoni and Tadius Karwi. Section 87 of the Constitution provides that a tribunal has to be set up first to investigate any judge if they are suspected of having committed an offence. "It is turning things upside down to mete out such a treatment to a judge who has not been lawfully suspended because the failure to comply with the provisions of the Constitution means that the judge remains in office and must continue to discharge the duties of a judge," the judges said. "How can legal practitioners appear before and interact with a judge who is in this position? If a judge is treated in a manner in which Justice Paradza has been, the impression is unavoidable that the judge concerned is being harassed and victimised."

However, legal experts last night said that the whole Section 87 that the 10 judges were citing dealt with the removal of judges from office when they were unable to discharge their function for reasons of infirmity of the body or mind, or misconduct in the course of exercising their judicial functions and responsibilities. "The section does not deal with criminal conduct, where a judge might, for example, be accused of rape, murder, fraud or corruption. The Constitution of Zimbabwe is very clear that the only authority that is immune from arrest or prosecution while in office is the head of State. Parliamentarians, Cabinet ministers, judges and even the police commissioner are not protected from arrest or prosecution while in office," said the experts. The police force, they said, was an independent authority and therefore, a police constable had a duty and obligation to arrest anyone who had committed a crime as long as that person was not a head of State. "What the judges are alleging and the manner in which Justice Paradza is going about the case has nothing to do with the constitution but is highly political and it is difficult to comment on political matters because we do not know what the motives are." The legal experts said the setting up of a tribunal that the judges were suggesting in their statement and the arrest of Justice Paradza were not mutually exclusive, nor was one subordinate to the other. In fact, one could trigger the other.

Justice Paradza was arrested on February 24 on allegations of trying to influence Justice Mafios Cheda to release the passport of Russel Luschagne, his partner in a safari hunting business. Luschagne's passport had been held by the High Court under his bail conditions on a murder charge.

Justice Paradza appeared at the Harare Magistrate Court and was granted $30 000 bail.

Soon after Paradza was arrested, the UN Special Rapporteur on the independence of judges and lawyers, Dato Param Cumaraswamy, had expressed grave concern over the arrest. He believes that Justice Paradza had previously handed down decisions that were "unpalatable" to the Zimbabwean Government.

This development is but one in a series of institutional and personal attacks on the judiciary and its independent judges over the past two years, which have resulted in the resignations of several senior judges and which have left Zimbabwe's rule of law in tatters, Mr. Cumaraswamy said. "When judges can be set against one another, then intimidated with arrest, detention and criminal prosecution there is no hope for the rule of law which is the cornerstone of democracy. It paves the way for governmental lawlessness," the Special Rapporteur said. (The Herald,Harare / United Nations (New York)

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