(Last Updated on December 23, 2021 by zimdaily)
HARARE – Retired Army Brigadier General David Chiweza is demanding a constitutional review of the country’s judicial system which he feels is prone to manipulation after being left homeless by two controversial Supreme Court judgements.
In a review of his cases, the decorated retired top general and veteran of the liberation struggle feels the judicial system has yawning loopholes that the rich and politically connected exploit to circumvent justice.
This comes after he lost two houses valued at nearly US$1 million dollars, in two successive working days, to Nicholas Van Hoogstraten’s Divvyland Investments businessman and Zanu PF secretary for legal affairs Paul Mangwana on November 5 and 8 consecutively.
In a statement Brig. Gen. (Rtd) David Chiweza said the supreme court allowed itself to be used to perpetrate an injustice.
“It is unjust to use the justice system to wriggle out of personal obligations let alone to deprive
others of their rights. It is unjust for the justice system to be willing partners in delivering the fruit of injustice. This cannot be justice but corruption,” Chweza said.
Chiweza feels that while he had succeeded in proving his right to the properties several times in terms of substantive law in the High Court the Supreme Court gave them away in “controversial procedural law judgments” that he now wants tested for constitutional legitimacy.
A former freedom fighter, war veteran, retired military general turned businessman, former AIDS activist and author, spent the last seven years fending off what he believes were well calculated scams to strip him of his properties.
“On the merits of my cases, I successfully defended my interests seven times in the High Court of Zimbabwe, once in the Labour Court, once in an Arbitration Tribunal and once in the Supreme Court of Zimbabwe. I proved my rights in these courts and my nemesis’ lies failed. Justice was therefore served on the merits by the lower courts and I was similarly sure that it would be served in the Supreme Court,” Chiweza said.
“However, the Supreme Court judgments of 5 and 8 November 2021 (SC 250/19 and SC 33/21) have compelled me to raise some important national issues affecting our constitutional and justice system today.”He feels the formal courts were riddled with a mischief that it needs to be ridden of.
My constitutional right to justice was clearly not served. This painful experience has motivated me to publicly expose this mischief and injustice that is being exploited by the powerful and connected to deny the weak and vulnerable the justice they deserve. I believe it is in the public interest to share this and to find ways of ridding our country of this mischief,” he continued.
He feels that, after successfully discharging the burden of proof towards ownership rights to the properties in the High Court, the judicial system, through the Supreme Court, gave them away through what he claimed were lawyer and judge mistakes that he says were beyond his control.
The retired top soldier cum businessman is now questioning the constitutionality of this position, arguing that the burden of judicial process mistakes cannot be imputed on an individual’s right to justice.
“My argument for examination and rethink is that judges and lawyers are part of the justice system. In the constitutional declaration of the right to justice, these entities were not enjoined to a person’s rights to justice,” Chiweza said.
“These are entities whose knowledge and action one has no control over yet their actions and failures determine the success or failure of litigation and likewise, an individual’s justice…It was the permissible technical errors attributed to a judge or a lawyer that were exploited.”
Chiweza argues that, unlike the right to liberty, which is waived on some circumstances – albeit for a greater good, the constitutional right to justice is not qualified.
As such, judicial process mistakes ought not nullify anyone’s right to justice.
“Our constitution does not give exceptions to the right to justice and yet we have judge and lawyer errors giving such unconstitutional exceptions. Where, in the constitution, does a judge or lawyer mistake override my right to justice?” he questioned.
“Take the precedence on our constitutional right to freedoms for example. The constitution is clear on exceptions, i.e., you can lose your right to liberty for specified reasons like ‘for the purpose of preventing an infectious, contagious or communicable disease.”
“This way we lose our liberties in order to serve a higher purpose of preventing a disease that could otherwise destroy the nation itself.”
In his case, Chiweza says the rich and powerful had “access to lawyers and judges who, through their knowledge of the system, always find opportunities and weaknesses to turn justice in the direction they desire and not in the direction that justice dictates.”
To this extent, he argues that the judicial system is patently faulty and needs correction.
He believes a situation where the judicial system blames itself for mistakes but cannot remedy them is a miscarriage of justice in light of the constitutional guarantee to justice.
“I do not see how lawyer and judge mistakes can supersede my right to justice, especially because their mistakes are not sacrosanct. They serve no higher interests of the nation except to defeat justice itself,” he said.
He wants the judicial system to mirror the medical profession, where a medical officer cannot impute the consequences of his/her negligent professional behavior on a patient.
The retired top soldier and master strategist argues that judicial officers are well capable of deliberately ‘making mistakes’ in order to deny substantial law justice for litigants.
“One could ask: ‘What if a judge or lawyer, being human, deliberately makes mistakes in order to defeat justice?’‘What if the judge or lawyer is paid to make that professional mistake?’ Should one lose rights to justice on account of this? Surely this is mischief identified and one that requires rethink,” Chiweza said.
He argues that the judicial system should be able to remedy its mistakes and ensure that it serves justice.
“Why is the legal profession immune to taking responsibility for its failures and why does the burden of its own failures rest with the litigants? Why does this have to affect my justice? …How can a proven case of injustice disappear on account of errors attributed to the judicial system itself?
“The least there can be is a declaration of a mistrial and correction of the procedures before
retrial if the judicial system will not carry the burden of its own mistakes. Failure to address this
is a travesty of justice,” Chiweza continued.
Without correction, he believes the Supreme Court is exercising too much unfettered discretion
and influence as to sway justice in any direction.
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