Fadzayi Mahere Conviction: Judicial Defiance and Stare Decisis

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Image Source: Twitter (Fadzayi Mahere CCC Spokesperson)

 This is a simplified piece on why there is outrage over the conviction of the CCC Spokesperson. 


Wednesday’s drama at a Harare Regional Magistrate court produced something that is truly unprecedented in Zimbabwe’s legal system - an opposition political figure Fadzayi Mahere was convicted by a Magistrate court using a law that was declared non existent by Zimbabwe’s High Court in 2021. 

Mahere was convicted yesterday on charges of “publishing falsehood prejudicial to the State”. According to the Magistrate Taurai Manwere, Mahere’s conduct was reckless and detrimental as she undermined the police force and eroded public confidence in the law enforcement. Outrageous! This was a judicial defiance.

The High Court in Case Number HC 845/21 “declared that there is no offence called publishing or communicating false statements prejudicial to the State under Zimbabwean law.”

 Now this conviction reflects badly on the second republic whether we like it or not. In the eyes of many the Magistrate court has become a ground zero for political convictions. Convicting a person for publishing false is a travesty. It means a lot of politicians who are today in parliament should be convicted also. The ruling simply shreds the fundamental right to freedom of expression enshrined in Section 61 of the current valid constitution.

 

Judicial Defiance

When a lower court disregards a higher court’s ruling or precedent, it is known as “judicial defiance” or “judicial disobedience.” This is a serious issue in the legal system because it undermines the authority of the higher court and can lead to inconsistent and unpredictable rulings. The Magistrate court defied the High Court. How is that possible?

The principle of stare decisis requires lower courts to follow legal precedents set by higher courts. This Latin term means “to stand by things decided.” The purpose of this principle is to ensure consistency and predictability in the law, which are critical for upholding the rule of law and ensuring equal treatment under the law. In light of the Mahere conviction, the ruling party will likely face challenges in arguing against accusations of political lawfare.

 

Writ of Mandamus

If a lower court disregards a higher court’s ruling, the high court may choose to intervene and correct the lower court’s error. This can be done through various means such as an appeal or a writ of mandamus. In extreme cases, a judge who engages in judicial disobedience may face disciplinary action, such as removal from the bench. It is not clear whether Mahere can win an appeal. However under normal circumstances the High court is supposed to throw out the conviction.


Fadzayi Mahere's response according to New Zimbabwe


A simplified read for you.

Let me know if you like such reads on the comments below.

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