Countries of the World/COUNTRYS.BIN/dp/0423/04234.txt

Text File | 1991-06-25 | 25KB | 400 lines

$Unique_ID{COW04234}
$Pretitle{371}
$Title{Zimbabwe
Chapter 4B.   The Legal System}
$Subtitle{}
$Author{Jean R. Tartter}
$Affiliation{HQ, Department of the Army}
$Subject{courts
zanu-pf
african
parties
government
court
political
law
civil
pf-zapu}
$Date{1982}
$Log{}
Country:     Zimbabwe
Book:        Zimbabwe, A Country Study
Author:      Jean R. Tartter
Affiliation: HQ, Department of the Army
Date:        1982

Chapter 4B.   The Legal System

     Changes in the judicial structure introduced by the government since
independence have sought to minimize racial distinctions in the operation of
the courts and to end domination of the higher bench by white jurists. The
earlier chiefs' courts that administered customary law were being replaced by
village and community courts under newly trained presiding officers in 1982.
The same year Africans were expected to constitute a majority on the
magistrates' bench; Africans had also been appointed to the Supreme Court and
the High Court.

     In spite of strong associations with Britain and adoption of many of its
judicial forms and practices, the Zimbabwean legal system is based on the
Roman-Dutch tradition inherited from South Africa. The Constitution is the
supreme law of the republic, and its provisions prevail over all other
statutes to the extent that such laws are inconsistent with it. Thus laws
enacted during UDI are recognized as valid if they do not conflict with the
new constitutional provisions.

     Customary law, the body of conventions and practices regulating
relationships in the African community, continues to be recognized in civil
cases where the parties have agreed that it should be applied. Zimbabwean
legal authorities look forward to the eventual unification of elements of
customary and Roman-Dutch law into a single body.

Court Structure

     When adopted in 1980, the Constitution affirmed the existing court
hierarchy headed by a High Court consisting of two divisions; the more senior
Appellate Division and the General Division. A constitutional amendment in
1981 renamed these the Supreme Court and the High Court, respectively. In this
judicial system the chief justice serves as a member of both courts and has
authority to interchange judges between them. The Supreme Court has original
jurisdiction over individuals seeking redress from alleged contraventions of
the Declaration of Rights, hears appeals from the High Court, and assumes
other jurisdiction as may be conferred upon it by the Constitution or other
legislation. It does not have the power to adjudicate the constitutionality of
legislative actions.

     The High Court is staffed by a number of puisne (associate) judges. It
has both original and appellate jurisdiction. Civil cases are heard by a
single judge, but criminal matters are tried before a judge and jury or a
judge sitting with two assessors. Cases heard before lower courts may be
reviewed by the High Court on such grounds as absence of jurisdiction,
corruption, gross irregularity, and inadmissibility of evidence.

     The use of assessors stems from legal practice in former British India
and is an outgrowth of the duality of the law in countries having a British
colonial heritage. The assessor is expected to bring to the court hearing a
special knowledge of local habits and modes of thought and expression. In a
major trial during the early months of the Mugabe government, Edgar Tekere, a
cabinet member and leading officer of ZANU-PF, was acquitted of murder on a
technicality when a white High Court judge was outvoted by his Coloured and
African assessors (see Postwar Violence and Government Security Policy, ch.
5).

     Before 1980 the judicial structure below the level of the High Court was
separated into two systems: magistrates' courts under the Ministry of Justice,
and district commissioners' and chiefs' courts under the Ministry of Internal
Affairs. In 1981 a new system of primary courts headed by laymen versed in
customary law was introduced to hear lesser cases. These became part of a
single hierarchy of courts under the responsibility of the Ministry of Justice
and Constitutional Affairs that was designed to reduce racial distinctions in
the application of law.

     The largest number of criminal cases as well as most of the civil cases
involving white persons continued to be heard by senior and district
magistrates' courts. Under the divided system in effect before independence,
white district commissioners heard civil cases involving Africans residing in
their administrative areas. A commissioner could summon African chiefs to
advise him on African law and custom. The chiefs' courts heard lesser civil
cases in which all parties were Africans, although their authority was
gradually extended to certain criminal matters during the 1970s; by 1980 all
132 chiefs' courts had been assigned limited criminal jurisdiction.

     During 1981 a broad transformation of the system was undertaken. With
United States assistance a training program had been launched at the
University of Zimbabwe to qualify Africans as magistrates and primary court
officers. It was expected that during 1982 a majority of the sixty-nine
magistrates in Zimbabwe, heretofore an entirely white judicial body, would be
Africans. The chiefs' courts were being replaced by 1,500 village courts, and
the commissioners' courts were in the process of being replaced by 300
community courts. The village courts, presided over by village elders chosen
by the ministry, were empowered to deal with cases of minor assault, theft
of property valued at up to Z$50 (for value of the Zimbabwe dollar-see
Glossary), and contraventions of district council bylaws. In civil matters
village courts could rule on claims of up to Z$200 if the claim was
determinable under customary law. They were also empowered to grant divorces.
The community courts were vested with limited criminal jurisdiction and acted
as courts of appeal for village courts. Their findings could in turn be
appealed to the local magistrates' court. Village courts have been established
only in communal lands and in the former African townships. Jurisdiction of
the community courts also extended to commercial farming areas, but as of 1981
it was still highly unusual for a white person to be brought before them.

     The introduction of the primary court system followed an unsettled period
beginning in 1978 when some 90 percent of the country had been declared a
martial law area and special courts martial staffed by white military officers
conducted political trials. Many Africans, who were not permitted to be
represented by defense counsel, were sentenced to death; appeal was limited to
referral to a secret review authority. In areas outside government control,
illegal kangaroo courts presided over by guerrillas or officials of the
African nationalist parties flourished during and immediately after the civil
war. Instead of reverting to the former chiefs' courts, these irregular bodies
gradually gave way to the new primary courts.

Racial Justice and Human Rights

     The pervasive practice of racial discrimination in the country's
preindependence era was buttressed by laws and regulations governing nearly
every aspect of relations between the multiracial population groups. Much of
the legislation regulating or primarily affecting Africans was repealed
between 1977 and 1979. The Mugabe government has thus been able to focus its
efforts on reducing the continuing wide inequalities in social and economic
conditions between Africans and whites, notably in education, health care, and
wage levels.

     Measures controlling access of Africans to public facilities and
accommodations were found in a number of preindependence laws, including the
Town Management Act and the Municipal Act. These granted local authorities the
right to segregate eating places, parks, sports facilities, theaters, and
toilets. Their provisions were invoked with some flexibility in the large
cities, but in smaller communities segr