I must confess, having had the privilege to interact personally with a former judge of the South African Constitutional Court, Justice Yvonne Mokgoro as she shared her experiences as a judge but also as an advocate for human rights, I was inspired to believe that I could serve on the Constitutional Court of Zimbabwe Bench, someday. To bring it closer to home, I am even more inspired by the strides that one particular woman has made as a justice of the law. Her name is Justice Rita Makarau. I never had the privilege of being taught by her at the University of Zimbabwe where she taught Conveyancing for legal practitioners for a long time but I did have the privilege of presenting in a Moot Court competition in which she was one of the judges while I was still a student. I remember how she commended my colleagues and I for the fine presentation that we made, a complement that warms me up to date.
Justice Makarau became Zimbabwe’s first female Judge President in 2006. Now she sits on the Supreme Court Bench and judges do not come finer than she is. Though not perfect as all human beings are prone to err, her interpretation of the law has been impressive in a number of cases.
As the Secretary of the Judicial Service Commission she fights for justice to be accessible to all, in all parts of the country. Justice Makarau is and has been very vocal about the under appreciation of the fact that the judiciary must be an integral but independent part of the state with the Executive (President and Cabinet) and the Legislature (House of Assembly-parliament and Senate) being the other two important branches in the trio. In her speech opening the 2007 legal year, Justice Makarau is on record to have said,
“Judging from the paltry funds that are allocated to it [the judiciary], it is my view that the place and role of the judiciary in this country is under-appreciated. Phrases that it is the third pillar of state or that it is an integral part of a democratic state are often used as appropriated fora by politicians and social scientists and have become clichés whose real meaning is not sought after or given effect to.”
She has over the years identified the under-resourcing of the judiciary as one of the crucial factors undermining the delivery of justice with limited funds for witness upkeep, for the court to hold its hearings known as circuits in provincial towns, for the remuneration of judges and for the support staff which has led to increased corruption in the judicial service.
It is largely believed that her removal from the High Court where she was the leading authority, to the Supreme Court where she is just another Justice of Appeal headed by a Chief Justice whose independence has always been known to be non existent but whose partisanship is his trademark, was actually a demotion. During her tenure as Judge President of the High Court, Justice Makarau stood her ground in maintaining the independence of the High Court. In fact, under her leadership the High Court had made great strides in rebuilding its immunity from partisanship, external influence and political arm-twisting.
The list of her achievements could fill a book but her most celebrated decisions include her ruling in Muswere vs Makanza, where the law provided was skewed towards the exclusion of women from owning property upon the dissolution of marriage. In her judgement Justice Makarau unequivocally stated that;
“… it presents itself clearly to me that as the position at law that a wife in the position of Mrs Makanza (defendant) has no real right in immovable property that is registered in her husband’s sole name even if she directly and indirectly contributed towards the acquisition of that property. Her rights in relation to that property are limited [and] subservient to the real rights of her husband as owner of the property.”
She declared the law “unsatisfactory and unpalpably unjust”but given that the judiciary’s role is limited to the interpretation of existing laws and not the creation of new ones she could go no further than this. Her decision however challenged the legislature to implement reforms to the law and address this unjust law that perpetuated the discrimination of women within marriages.
Justice Makarau also made a bold statement in the case of the two fighting factions of the Anglican Church in Zimbabwe in which she ordered them to share the properties of the church in the country. This decision came following the barring of other church members by the faction of ex-communicated Bishop Nolbert Kunonga from the Church of England. Kunonga had decided to unilaterally withdraw himself from the Church of England protesting the acceptance by the church of gay pastors. Kunonga’s decision was strongly supported by the homophobic Zimbabwean government leading to them giving him human support in the form of police and other armed guards to bar the newly appointed Bishop Bakare and his followers from using the church premises. Although Justice Makarau’s decision ordering the two factions to share the premises was later overturned by the Supreme Court, she made a bold statement about the importance of freedom of religion and how the state should not interfere in the practise of that right.
Although her appointment has been questioned in some fora and her independence queried because she used to be a non-constituency Member of Parliament for ZANU PF and was a member of the Government’s Constitutional Commission in 1998/9 a number of her decision have shown her willingness to serve justice outside partisan interests. Of note is her decision in 2002 in which she ordered the Registrar-General, to draw up a common voters’ roll allowing voters to cast their votes anywhere in the country in the Presidential election and not in their constituency as is required in parliamentary elections. She also ordered the restoration of all those who had lost their citizenship due to changes in citizenship laws onto the voters roll. Her decision was celebrated as a reinforcement of the fundamental right to vote as it allowed those who had been displaced from their constituencies by political violence to vote in their new areas of residence and also enabled those who had become victims of citizenship laws targeted at disenfranchising white Zimbabweans and farm workers who were descendants of Malawian, Zambian or Mozambican origin and perceived to be loyal to the evicted white farmers to vote. All those who had renounced their Zimbabwean citizenship as required by the new law and all those who had not done so were enabled to vote by Justice Makarau’s decision.
In one of the most protracted legal cases on press freedom, the Associated Newspapers of Zimbabwe fought the Media and Information Commission which refused it registration. The Media Commission was refusing the Association registration, refusing to even give them a hearing arguing that their previous existence violated the Access to Information and Protection of Privacy Act. Justice Makarau stood out for making one of the most celebrated decisions in the course of this case when on 8 February 2006 she set aside the Board of the Media Commission’s decision not to register the Association and declared the entire board disabled from dealing with the case because of the outstanding bias of one of the Commissioners on the Board whom she perceived to be influencing the decisions of all the other Commissioners in this particular case. Justice Makarau’s decision defended and upheld freedoms of the press and expression. The decision was disregarded by the government of course but she had a made a clear decision upholding fundamental freedoms to which the government then acted in contempt.
The list is quite endless but one thing stands out clear, she is a woman, she is a judge and she has made some ‘fine’ decisions. As young women we aspire to step into her shoes and indeed she is one of the role models that we can emulate.