Harare — THIS is the second of a series by DR TAFATAONA MAHOSO in which he looks at the myth of judicial independence under Rhodesian era judges.

KENYAN-BORN attorney Charles Ford Kaminwa, like many other African lawyers trained in the English tradition, was a great believer in the ideal of judicial independence. However, his direct involvement in the Zimbabwe experience at the beginning of the 21st century caused him to revise his position.

First, he found the judiciary being used to protect Dr Gladwell McGown whom Kaminwa believed had murdered Kaminwa's daughter Lavender while conducting illegal medical experiments.

Kaminwa saw the then Chief Justice Anthony Gubbay employing the ideology of judicial independence to protect Dr McGown and he believed this was on the basis of white racist solidarity.

To make matters worse, Chief Justice Anthony Gubbay also made political pronouncements indicating that he was allied to the white racist landlords of the all-white Commercial Farmers Union against the popular African land reclamation movement led by peasants and freedom fighters of the Second Chimurenga.

Despite that clear political alliance, Chief Justice Gubbay had also proceeded to preside over land cases involving the white settler farmers against the dispossessed and landless African peasants. All the judgements favoured the white settlers.

The leadership of the LSZ not only failed to demand an independent inquiry into allegations of collusion between the leaders of the medical fraternity and the judiciary to cover medical malpractice; the leadership of the LSZ in fact joined Chief Justice Gubbay and the all-white Commercial Farmers Union in criminalising the popular African land reclamation movement. Kaminwa was traumatised and scandalised. He wrote:

"Clearly, I also believe there must be some form or accountability from the Judiciary in return for the independence that it enjoys -- accountability to the law, and accountability to 'we the people'.

"The independence of the judiciary is not an end in itself but merely a tool to be used to discover the Truth and so do Justice and promote social progress."

In fact, for most intellectuals, the independence of the judiciary should be treated like the beauty or handsomeness of one's own spouse.

If someone goes around shouting about it, then we must assume that there is something terribly wrong in the relationship.

When so much noise is orchestrated all over the globe about the independence of the judiciary and the rule of law, this is a warning to the public that something is wrong. Someone, the establishment is going through a period of contradiction and stress, and the independence of the judiciary becomes a fig leaf.

After all, the 400 years of the African holocaust is chattel slavery in America was based on an independent judiciary and the rule of law; 300 years of apartheid and white barbarism in South Africa was well-founded in Roman Dutch Law and the Dutch Reformed Church.

Indeed, the stress which the fig leaf of judicial independence was meant to cover up in 2000 comes through in Kaminwa's presentation:

"When a judge is corrupt, or biased, or capricious, or perverse, or lazy, or arbitrary, or foolish; when a Judge shows stubborn and pig-headed disregard for the law and the facts of a particular case; when a judge binds himself to work for [hostile] foreign powers or secret societies against his own conscience and country; when a Judge sets out dogmatically and oppressively to implement his own political ideology at the expense of the law and the people... I say, both common sense and international law give to us, we the people... the right to take appropriate democratic measures to put matters right."

I have cut short the list of gross abuses which Kaminwa accused the Zimbabwean judiciary of around year 2000. Kaminwa, as a lawyer, had come across such abuses and he saw them getting worse because of the anxieties, which the entrenched, white-dominated judiciary felt in the face of an African land revolution.

The current anxieties which explain the excessive noise about rule of law and independence of the judiciary have to do with the fact that the Zimbabwe example is affecting South Africa, the former land of apartheid which passed Roman Dutch Law to Rhodesia.

This explains the infiltration into Zimbabwe of South Africa-based, white-dominated and imperialist-driven media projects. The anxieties are real. The hysteria over Julius Malema's visit to Zimbabwe is symptomatic of such anxieties.

Meanwhile, the debate is still taking place within the boxes or traditions of Roman -- Dutch Law and English Law. Kaminwa's questions and the questions raised in these series so far are still within these boxes. But the purpose is eventually to go beyond, to go outside those boxes and look at the African philosophy of law.

Meanwhile, it is useful to conclude the lesson learned from Charles Ford Kaminwa's testimony in the year 2000. Zimbabwe's judiciary has still not recovered from the Anglo-American ideological interventions, which began at the time of the collapse of the former Soviet Union.

The UK and the US, with some EU participation, organised dozens of workshops, which were clearly intended to reorient the judiciaries of former British colonies.

Former Chief Justice Anthony Gubbay was an active participant in those workshops. At one such workshop, where Kaminwa was present on June 19, 1998, Gubbay presented his vision of "judicial activism" for Zimbabwe.

He said that it was not enough for the judiciary to secure its independence from the state. The judiciary had to engage in ideological combat with that same state in order to win political backing directly from society itself against the state:

"These principles have to be implemented [socially and politically]. Society must be made aware [by the judiciary itself] of their importance and any violation of them exposed.

In this way, public opinion can be created in defence of the independence of the judiciary and so ensure by necessary outcry [that is agitation and propaganda] that the maintenance of judicial independence is not eroded by the executive."

At that very time, however, the independence of Zimbabwe's judiciary was being eroded through undue British, US and EU influence. That did not matter.

Kaminwa then posed a question, which has arisen again in 2010. There is current agitation to arrest and try the Attorney-General for being too independent of certain interests, even though the independence of the AG is part-and-parcel of so-called independence of the judiciary.

"If the judges can purport to prosecute the Attorney-General himself for alleged contempt of court, what fate awaits an ordinary citizen who dares to express some criticism of the same Judiciary?

Kaminwa wondered. In other words, the judiciary often engaged in intimidation of ordinary citizens to stop them from criticising it.

Indeed the Sunday Times of South Africa, for May 6, and The Zimbabwe Independent for May 14, 2010 both suggested that the current Attorney General should resign or be prosecuted for daring to appeal against Justice Chinembiri Bhunu's judgment in the Bennett case. We are back where we were in 2 000 again!

Zimbabweans also remember the 67 terrorists who were arrested at Harare International Airport in 2004. Their leader was a Briton, Simon Mann. But the finances which made the coup plot possible were handled by Mark Thatcher, son of former British prime minister Margaret Thatcher.

On November 13, 2009, the Mail and Guardian of South Africa (where Thatcher was based in Cape Town until the terror scandal exploded) reported that it has been decided by British lawyers and politicians that Mark Thatcher will not stand trial for his role in financing the 67 coup plotters against Equatorial Guinea.

So, Florynce Kennedy was right on target. The only departure she made from most sociological and historical studies is her choice of direct language as opposed to conventional legalese.

"Some of the two-bit whore lawyers have spent lives of great disappointment because they have not been [approached,] recruited and raised to 'call-girl' status in the major Wall Street firms or the MICE -- Military-Industrial-Complex and Establishmentarians [meaning the highest levels of imperialism]."

Too many of the celebrated examples of judicial independence involve African courts letting off the hook white suspects bent on reversing African independence or compromising the public interests of Africans.

According to a Mail and Guardian story (November 13, 2009) called "Thatcher escapes prosecution for failed Equatorial Guinea Coup," Thatcher was conveniently taken out of South Africa and not returned there from Britain.

This meant that he would be convicted in his absence in South Africa and he would not be put on trial in Britain precisely because of the fact that he had already been convicted in his absence for the same crimes in South Africa for financing terrorist activities.

"The sources indicated that the inquiry in [Britain] was hindered by concerns about double jeopardy because of his South Africa conviction, despite the fact that this took place in a different jurisdiction."

That is definitely not how the British or US systems handle a terrorist or financier of terrorists against white society. Thatcher's project threatened only Africans.

Ironically, the evidence that implicated Mark Thatcher and led to his conviction in South Africa originated from a Zimbabwean jail where Simon Mann was jailed in 2004.

In this, as in the Bennett case, the suspected crimes involved white racists contemptuous of African self-rule and determined to reverse or compromise it.

In both cases, South Africa was an important base. And in both cases there was intense imperial Anglo-Saxon interest. CNN brought up the case of Roy Bennett in its interview of President Mugabe on September 24, 2009.

Former British Foreign Secretary David Miliband was forced to answer a question on Roy Bennett in the British House of Commons on June 19, 2010.

Lawyers and judges in small countries peripheral to imperialism are even more vulnerable to the whoring practices described by Kennedy than those closer to the centre.