Criminal justice and the truth in Zimbabwe: A necessary introspection

• Jurisdiction: South Africa
• Author: Charles Goredema
• Published date: 24 May 2019
• Pages: 155-183
• Date: 24 May 2019

Criminal justice and the truth in

Zimbabwe: A necessary introspection

CHARLES GOREDEMA*

1 Introduction

Criminal justice systems in many of the countries in southern Africa are based

on legal systems transferred from the erstwhile colonial powers.

1

It would

appear that by the time of independence the adopted systems had secured

such a firm footing that it was considered prudent to retain them.

The acceptance of this colonial bequest can be attributed to a number of

general reasons. One of the reasons was that it was the colonizing countries

which had set up the colonized states as geographic and political entities. In

some cases, colonial delineation arbitrarily created geographic structures that

were politically fragile. The colonial justice system offered a kind of common

denominator to facilitate the continued existence and cohesion of the newly

independent state. The unitary colonial justice system existed side by side

with a multiplicity of what the colonialists perceived to be underdeveloped

customary judicial systems. The laws administered in the customary systems

were regarded with a mixture of scepticism and contempt.

2

The demise of

the colonial state did not herald the recognition of indigenous systems. It also

did not spur the development of home-grown hybrid systems. The incoming

ruling establishment considered it to be in the political and administrative

interests of the emerging states to pre-empt potentially divisive arguments as

to what system of law to adopt in place of the colonial system.

* BL (I ions) LLB, LLM

Faculty of Law, University of Zimbabwe.

1

English procedural law was introduced into each of the colonial territories, commencing with the

constituent provinces of the Union of South Africa, (see 5(2) LAWSA (1994) para 167) followed

by Southern Rhodesia, Bechuanaland, Lesotho, Swaziland, Northern Rhodesia, and Nyasaland.

In somewhat similar fashion, the civil system operative in Portugal was transplanted to

Mozambique and Angola. The imposition of colonial criminal laws on the colonized peoples

resulted in varying degrees of 'legal dualism'. There was, however, a common trend of whittling

away the criminal jurisdiction of customary courts. This led to a situation in which by

independence, these courts only exercised jurisdiction as extended to them specifically

by statute in minor cases.

2

The colonial attitude is probably summarized by the remarks of a well known English jurist,

Lord Denning: 'I have heard of Roman law. I know something of English law. But what is

African law? It is at the moment a jumble of pieces much like a jigsaw. . . If the people of Africa

are to emerge into a great civilization, then these discordant pieces must all be sorted out and

fitted together into a single whole.' See the foreword to the

(1957)JAL 1.

155

(1999) 12 SACJ 155

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156



SACJ • (1999)12 • SAS

The second is that the emerging states lacked the capacity to make a

radical break with the colonial past. Almost without exception, the former

colonies were heavily dependent on bureaucrats inherited from either

the colonial state or the settler colonialist state machinery. None of those

bureaucrats could be expected to spearhead a crusade to jettison the

inherited criminal justice system or the structures which supported it. They

were more familiar with that system than any other. The replacement of the

inherited bureaucrats by legally trained personnel from the ranks of

the indigenous post-colonial officials did not yield revolutionary change

in the operative system. This was partly because the new 'brigade' was too

small in number. The other, perhaps more decisive reason, was that many of

the new bureaucrats happened to have been trained in the common law

word, which imposed important limitations on their comparative acumen.

Thirdly, and perhaps in consequence of the above, the new political

leadership and the inherited bureaucrats did not consider the system to be

inherently faulty or ineffective. It seemed to form an integral part of the

economic order which they perceived to be worth preserving and

developing. It was better to stick to a tried, tested and predictable set-up

than venture into uncharged territory with the attendant risks to the

economic well being of the new country. There was a lack of confidence

in the capacity of customary law to do justice in serious criminal cases or in

cases which arose in non-traditional settings. The ambivalent status of

customary criminal law and criminal justice which had been prevalent in

the colonial era outlasted the demise of colonialism,

3

notwithstanding the

exhortation by the United Nations General Assembly in 1981 that member

states should take account of political, economic, social and cultural

circumstances and traditions in their countries in the formulation of criminal

justice policies. In Zimbabwe, there was a marginal recognition of customary

criminal jurisdiction. Logistical and personnel problems nullified the exercise

of such jurisdiction.

4

The transferred system was therefore adopted, in an almost complacent

manner,

5

without much critical thought being given to its imperfections.

3

For the position in Zambia, see K Mwansa The status of African customary criminal law and

justice under the received English criminal law in Zambia: A case for the integration of the two

systems' (1986)

ZimLR

23.

4

The Customary Law and Primary Courts Act (No 6 of 1981) provided for jurisdiction in cases

punishable by a small fine. See A Ladley 'Changing the courts in Zimbabwe: The customary law

and Primary Courts Act' (1982) 26

JAL

95 at 110 in which the author points out that the courts were

not provided with prosecutors or the necessary recording mechanisms. In addition the police,

on whose co-operation the functioning of the courts depended withheld their co-operation.

5

For example, section 89 of the Independence Constitution of Zimbabwe (1980) decreed that

the law that was to be applied by the courts was to be the law as it stood on 10 June 1891 in the

Colony of the Cape of Good Hope.

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