JOHANNESBURG (Mar. 12)
The Jewish chief justice of Zimbabwe has agreed to step down, giving in to the government of President Robert Mugabe in a standoff over enforcing the nation’s laws.
Anthony Gubbay, 68, agreed to go on immediate vacation until his retirement at the end of June, and will not preside over any more cases.
The conflict between the judiciary and Mugabe’s government erupted last year after white farmers challenged the invasion of their land by black “veterans” of the 1970s Zimbabwean war of independence
The “veterans” — only some of whom actually fought in the independence war – - claimed that land reform instituted after Zimbabwe became independent in 1980 had not proceeded fast enough.
Many regarded the land reform campaign as nothing more than an exercise by Mugabe to avoid defeat in last year’s elections, the first time since Mugabe took power in 1980 that he faced a serious challenge.
The country’s highest court then heard two major cases that got Gubbay into trouble with the government.
The first, brought by dispossessed white farmers, asked the court to order the eviction of the invaders, despite government measures to protect them.
The second was an application by the narrowly defeated opposition party to order a recount in many key constituencies, following allegations of irregularities. Before the second application was heard, the government passed a law prohibiting any investigation of the irregularities and any vote recounts.
Gubbay — born in Manchester, England — presided in both cases. In both cases, the court ruled against the government.
Shortly after the judgments, the government verbally attacked “white and Asian judges” over the land issue. Analysts pointed out that the judges’ independence had proved inconvenient to Mugabe, who ignored the court orders.
Johannesburg Rabbi Ben Isaacson, who served as a rabbi in Zimbabwe for 12 years from 1987 and knows Gubbay, described him as a “gentleman.”
“He is a legal authority of international renown, a human being of great integrity and a man who does not sacrifice his principles on the altar of expediency,” Isaacson said.
Isaacson described Mugabe’s actions as “thuggery,” but pointed out that Mugabe does not target people because of their religion.
“Judge Gubbay’s religion, and that of his colleagues, has nothing to do with it,” Isaacson stressed. “The removal of judges who rule against the lawlessly rampant regime resembles what the Nazis did in the 1930s.”
At the end of November, militants with the ruling Zanu Party “invaded” the Supreme Court in the Zimbabwean capital, Harare, while police stood by. Though they did little damage, the militants disrupted court proceedings and sent a message of intimidation to the judiciary.
In February, Gubbay asked Justice Minister Patrick Chinamasa to ensure the safety of the judges, indicating that otherwise they could not continue to serve. Chinamasa, a Mugabe ally, said he could not do so.
An arrangement was made soon afterward for Gubbay to take early retirement, but later in February Gubbay’s office said Chinamasa had not honored the arrangements and Gubbay would not resign.
He defied a ministerial order to vacate his office until another arrangement was reached on March 2.
Gubbay is expected to be replaced with a Mugabe loyalist.
Zimbabwe’s Jewish community is small, with only some 750 Jews remaining of the 6,000 who lived there two decades ago.
Tony Leon, a Jew who heads South Africa’s opposition Democratic Party, criticized the Zimbabwe government’s conduct after a recent visit to South Africa’s northern neighbor.
“If the culture of impunity continues during the next 18 months to the general election, there will be very little to save in that country, and the effect on us will be great,” Leon said. Instability in Zimbabwe can scare investors away from its southern neighbor, South Africa.
To date, South Africa has preferred to use quiet diplomacy to influence the situation in Zimbabwe, though a more forceful diplomatic approach appears to be in the cards. While recognizing the need for land redistribution in both countries, few South Africans appear to support Mugabe’s methods.
Unusually, leaders of the South African judiciary have broken their silence on political issues to talk about developments in Zimbabwe.
In a joint statement, the country’s two top judges — Constitutional Court President Arthur Chaskalson, who is Jewish, and Acting Chief Justice Joos Hefer — said that “unless judges are allowed to fulfill their constitutional function independently” and “without interference from the government, their judgments will lose credibility and the rule of law will be irreversibly compromised.”
In a lecture last week, Chaskalson quoted American jurist Louis Brandeis.
“If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy,” he warned.
Isaacson added: “The issue at stake is the thuggery of Mugabe, who, like Saddam Hussein and the other thugs of the world, will target anybody they feel like.”