It's Not Just About Technicalities Of Law. Judges Are Political Actors: Magaisa
Commenting on the recent judgement on the legitimacy of the MDC leadership, renowned academic and constitutional law expert, Alex Magaisa, has said that Zimbabweans risk not seeing the big political picture if they focus on the technicalities of the law only.
Writing on his BSR blog, Magaisa said that Judges are political actors and that the recent MDC leadership ruling is an example of the law being used to deal with political opponents. Magaisa gave some examples of the political big picture in judgements that could have passed the technical analysis for correctness:
- The judgements during the 2017 coup that, according to him, sanitised what was essentially an illegal intervention of the army in politics
- The Daily News shutdown where in September 2003, the Supreme Court effectively silenced the most popular newspaper in the country when it refused to hear the company’s challenge of a law.
Magaisa argued that Mnangagwa has political motive to influence the judiciary to thwart the MDC given that he had successfully co-opted other opposition into his government’s advisors using the currently ongoing National dialogue process. The Chamisa MDC remains however has refused to be part of the process.
Says Magaisa in conclusion:
There is no doubt in my assessment that the judiciary and judges are important political institutions and actors respectively and their decision-making is also shaped by their politics and beliefs. What is critical though is that they are expected to exercise more discretion than other political actors, such as politicians. Authoritarian regimes have long known that capturing referees, such as judges is fundamental to their way of ruling, which is why the conduct of the judiciary must be carefully watched and thoroughly scrutinised. It is also why judges must be guarded against the excesses of the powerful executive and protected from poverty because it makes them vulnerable and prone to capture.
Overall, understanding the role of judges as political actors helps us appreciate that they can play a key role in either aiding and abetting authoritarianism or resisting it.
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