Zimbabwe and Its Courts1

Forum 1 The next major development to the sit Zimbabwe and its courts uation of the high court came as a result of the dissolution of the Federation of AR Gubbay Rhodesia and Nyasaland at the end of 1963. With the cessation of the Federal Chief Justice of Zimbabwe Supreme Court as a court of appeal from deeisions of the high court, it became nec essary to put in place a substitute local of Good Hope. Early history appellate system for the country. The sys At the beginning of 1899 the High The area now covered by Zimbabwe was tem devised was to split the high court Court of Matabeleland was reconstituted inhabited by descendants of the great (until then at all times a single-decision as the High Court of Southern Rhodesia southern migration of Bantu people. They court) into two divisions: the Appellate under the Southern Rhodesian Order in occupied most of central and southern Division and the General Division (or trial Council, 1898. The appointment and Africa. By the end of the 19th century there division). The Appellate Division dealt tenure of office of judges were provided were two main tribes in the country, the with the bulk of the appellate work of the for much as before, save that appointments Matabele and the Mashona. Lobengula, the former high court and also heard appeals were now made by the Secretary of State King of the Matabele, asserted sovereignty from the General Division. The General on the nomination of the British South over the whole country. Division dealt with the trial work of the Africa Company, which was required to In 1890 the country was occupied by former high court and also retained some nominate "a fit and proper person". the British South Africa Company operat minor appellate and review jurisdiction. ing under a Royal Charter which enabled Between 1923 and 1962 there was no The chief justice could sit in both divisions. alteration of any significance in the com the company to exercise powers of gover The same structure continued until 28 nance. In 1923 the country became a self position, structure or jurisdiction of the April 1981 - a year after independence governing British colony. It finally High Court. It was only in 1933 that it when the High Court Act and Supreme achieved full independence on 18 April became necessary to increase the judicial Court Act became operative. 1980, following upon a fourteen-year establishment from two to three. Since civil war against the unlawful declaration then, of course, the number of judges has The system of appeals of independence by the white minority increased steadily over the years. Prior to 1964 the country was served by a government. Towards the end of 1962, the Con number of different courts of appeal. It stitution of Southern Rhodesia 1961 came did not have the system of appeals from a Development of the high into effect. The old high court which had high court decision to a full bench of the court sat both in the capital (then named high court - which would have been For a few years after occupation there was Salisbury) and the second largest city, impossible because for so many years the no high court. The administrator, in his Bulawayo, continued in existence as the high court had had only two judges. capacity as chief magistrate, however, new high court provided for in Chapter V From occupation in 1890 until the possessed the jurisdiction of a superior of the Constitution, and existing judges, unilateral assumption of independence court of record in all cases, both civil and who then numbered six, continued in on 11 November 1965, the Privy Council criminal. He was also empowered to hear office. A feature of the new Constitution was the ultimate court of appeal. During appeals from, and review the proceedings was that more elaborate provision was most of this period appeals lay by special of, magistrates' courts. made for the appointment, qualification leave only. The judicial system of the country was and removal ofjudges. A person would not The first intermediate appeal court put on a proper basis in 1894 when the be qualified for appointment as a judge was the old Cape Supreme Court. An Miltabeleland Order in Council was prom unless he or she was or had been a judge appeal to it lay from the high court, ini ulgated. Under this Order, the High Court of a superior court in a country in which tially in civil matters and, from 1898, of Matabeleland was established, with full the common law was Roman-Dutch, with against conviction by way of a question jurisdiction over inferior courts. Notwith English as the official language; or if he or of law reserved by the high court. standing its title, this court's jurisdiction she had been qualified to practise as an The South Africa Act of 1909, which extended over the entire country. The pro advocate in Southern Rhodesia or in a provided for the Union of South Africa, set visions for the appointment of judges were country in which the common law was up the Appellate Division of the South very simple. They were to be appointed by Roman-Dutch with English as the official African Supreme Court, at Bloernfontein, the British South Africa Company with the language. Appointments were made by the and made special provision for appeals approval of the Secretary of State and Governor on the advice of the Prime from the High Court of Southern Rhodesia would hold office "during pleasure". Minister, with the latter being obliged to to that court. Civil appeals, except in cer Salaries could not be increased or dimin consult the Chief Justice and the puisne tain minor matters in which appeals still ished without the approval of the Secretary judges. The retirement age was set at lay to the old Cape Supreme Court (which of State. No qualification for judicial office sixty-five years with an extension to sev then became the Cape Provincial Divi was prescribed. At first only one judge was enty. Removal from office was by the sion), lay direct to the Appellate Division appointed, but in 1896 a second appoint Governor on the recommendation of an of the Supreme Court of South Africa. In ment was made. Both came from the Cape independent judicial tribunal of inquiry. criminal matters appeals still lay to the Fourth Term 2000 Advocate 25 Forum Cape Provincial Division, with no further justice who had indicated an unwilling Judges are the custodians of the right of appeal from a decision of that ness to serve under a nationalist govern Constitution of Zimbabwe. This means court. But in 1931 the Cape Provincial ment represented the judiciary at the that the courts have the power, and the Division ceased entirely to be an appeal granting of independence and swore into duty in the first place to ensure that all the court for Southern Rhodesia. All appeals office Robert Mugabe as prime minister. provisions of the Constitution - which is lay to the Appellate Division of the As part of the process of reconciliation the supreme and overriding law of the Supreme Court of South Africa. In civil the Mugabe government left in office all land - are observed by all the instrumen matters an appeal lay where the dispute the members of the judiciary who had talities of government; and secondly to exceeded £100 in value, or with leave of served under the white minority govern declare as invalid any excess of power or the high court. In criminal cases there was ment of Ian Smith. However, during May Act of Parliament or presidential or min no full appeal on fact, and no appeal 1980 the chief justice and one judge of isterial regulation which contravenes a against sentence as such. appeal retired, having both reached sixty provision in the Constitution. Anyone An alternative right of appeal was five years of age. On 8 May 1980 the first who alleges that a fundamental right or granted to persons convicted before the black judge was appointed to the General freedom has been, or is likely to be, vio high court under the Rhodesian Court of Division of the High Court. He was lated in relation to himself or herself, may Appeal Act 1938. The Act established a Enoch Dumbutshena. The first chief jus apply directly to the supreme court for local court of appeal for Southern Rhodesia tice of Zimbabwe was John Fieldsend determination of the matter. In this respect and what was then Northern Rhodesia (who had left the Bench in 1968 in the supreme court functions as a court of (now Zambia). In 1947 Nyasaland (now protest against the decision of the court to first instance besides exercising appellate Malawi) was added, and from then on the accord judicial recognition to the govern jurisdiction. And the high court, and any court was known as the Rhodesia and ment of Ian Smith). inferior court, are required to refer any Nyasaland Court of Appeal. A person con During the early years of independ such issue to the supreme court if request victed by the high court who elected to ence many of the white judges resigned. ed by the parties. Referrals may also be appeal to this court lost his right to appeal By mid-1984 only two remained with made mero motu by the courts. to the appellate division in Bloernfontein. one retiring at the end of 1986. The gov The Constitution contains a justiciable The significant feature about the right of ernment was obliged to recruit on con Declaration of Rights which specifies a appeal to the Rhodesia and Nyasaland tract four expatriate judges from Ghana number of fundamental human rights and Court of Appeal was its wider scope.

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