THE courts never denied the opposition MDC-Alliance the
right to demonstrate as wrongly presented to the United Nations but that should
be read as a deliberate attempt to malign the judiciary and to score political
points, Chief Justice Luke Malaba has said.
Briefing the United Nations Special Rapporteur on the right
to freedom of peaceful assembly and association Mr Clement Voule last week, the
judiciary boss said the MDC-A lawyers approached the wrong court with an appeal
against the decision of the police to ban their planned demonstrations last
month, citing security concerns.
Mr Voule met the head of the judiciary with a view to seek
an explanation on a number of allegations including claims that the judiciary
had denied people the right to demonstrate.
He also sought to hear the judiciary’s comments on
allegations that it was not independent and that it was pro-Executive.
Last month, the police exercised their powers in terms of
the law and issued a prohibition order against the planned MDC-A demonstration
citing security concerns.
Instead of appealing the decision at the magistrates’
courts in terms of a valid law, the lawyers approached the High Court.
The High Court refused to hear the case citing
jurisdictional reasons.
Chief Justice Malaba said politics was at play and that the
manner in which the decision of the High Court was packaged for the media was
meant to create the wrong perceptions about the court and the nation at large.
“If a police officer makes an order prohibiting a party to
demonstrate in terms of a valid law and that law says you appeal to the
magistrates’ court, that is the right provided by the law.
“An appeal is voluntary. We do not bind people to appeal.
If you are not happy with the order restricting you when you want to march, you
can sinply go to the magistrates’ court,” he said.
“You know what they did? They went to the High Court.
Surely, you can see that someone could have deliberately done that to create
the basis for this kind of opinionated perception.
“If the High Court says it does not have jurisdiction
because there is no law which allows one to appeal to it, the applicant would
have done harm to his or her own case,” said Chief Justice Malaba.
The Chief Justice said media reports were then packaged in
a manner that maligned the court and created a perception that the court did
not respect freedom of expression and assembly.
“If the High Court makes such a ruling, it has no control
over the media or other channels used to now malign it.
“Now the picture is created that the courts are denying
people the right to demonstrate. No one accepts the fault of their own lawyers
or themselves because it is deliberate.
“We have no means of defending ourselves and setting the
record straight that the argument is all political.
“It is a political argument. It is not judicial. Publicity
of that and how it is packaged, is all political. We don’t get involved in
politics because we are not politicians, “said Chief Justice Malaba.
Such wrong perceptions, the Chief Justice said, are then
turned into facts.
“Expressions of disquiet by some individual politicians are
turned into facts because of the very environment in which we live.
“We have a situation whereby the first one to present an
opinion to whoever he presents it to, influences the approach or perception. In
this respect, because the judiciary is the least vocal, it is just attacked
without any defence,” he said.
Chief Justice Malaba said the police also act in terms of
the law, which is valid.
“When you look at the current law, whether that law is
unconstitutional or constitutional, it is a matter which needs to be looked at
against the Constitution.
“But that law exists for now. It’s a matter which the
judiciary at a higher level like Constitutional Court, can only review,
provided the cases are brought before it,” he said.
He added that people made noises about the alleged
unconstitutionality of the law empowering police to issue prohibition orders
but they never challenged it in court.
“People take that disagreement and saying the law violates
the rights but they don’t come to the Constitutional Court.
“Most of these cases have not come to the Constitutional
Court. They have ended at implementation level. Lawyers decide to challenge the
proceedure only, and not the constitutionality of the law. The court cannot
interfere with the exercise of the Executive’s mandate,” he said. Herald
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