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A law unto themselves (Part 1): Making and breaking the laws of
the land
Dale
Doré, Sokwanele
August 01, 2012
Read
Part II
http://www.sokwanele.com/node/2394
This paper is
part of the Zimbabwe Land Series
- View
index to Mandi Rukuni's articles here
- View index to Dale Dore's articles here
"Observance
of the law is the eternal safeguard of liberty; and defiance of
the law is the surest road to tyranny. For in a government of laws
and not of men, no man, however prominent or powerful, and no mob
however unruly or boisterous, is entitled to defy a court of law."
~
US President John F. Kennedy, 30 September 1962
Executive
Summary
The story of
Zimbabwe's land crisis can be told as much by the executive's prerogative
to make laws as to wilfully break them. This paper recounts how
the executive was granted wide discretionary powers to make laws
and how Presidential abuse of these powers compromised the independence
of the judiciary and undermined the duty of law enforcement agencies
to uphold the constitutional rights of the people. Presidential
pardons and the enactment of laws that ran counter to natural justice
and international law were the executive's weapons of choice. If
and when these laws were challenged, they were simply changed or
ignored by presidential fiat. The President's self-proclaimed moral
and political imperatives - based on his resurrected nationalist
narrative on land - were enforced by suborned institutions of the
state. Neither the country's laws nor its courts could hold the
executive or members of the ruling party to account. In their place
a culture of impunity festers. Here, and in Part II of this paper
(to follow), I argue for an alternative imperative: that fundamental
human rights and the principles of international law be enshrined
in Zimbabwe's constitution, become the cornerstone of our transition
to democracy, and etched into our future land policy.
The
Rule of Law
What is the
rule of law? Anthony Gubbay, Zimbabwe's former Chief Justice (1990
- 2001), sees it as a celebration of individual rights and liberties.1
It recognises the supremacy of the law, equality before the law,
accountability to the law, and fairness in the application of the
law. A fundamental tenet of the rule of law is the separation of
powers. Because an independent judiciary constrains and regulates
executive power, it is the bedrock of a constitutional democracy.
It means that rulers cannot pick and choose which laws or courts
they wish to obey. They cannot set one standard for themselves and
another for the people they govern. Another key principle of the
rule of law, according to Bingham, the former Lord Chief Justice
of England and Wales, is the protection of fundamental human rights
and a state's obligations in international law.2
Making
Laws
A number of
laws made in Zimbabwe, especially regarding land, are at variance
with the internationally accepted principles of law-making. The
first relates to discretionary powers. Bingham states that: "Questions
of legal right and liability should ordinary be resolved by application
of the law and not the exercise of discretion." Yet, under
Zimbabwean law the President has been granted wide discretionary
legal powers. Consider for example, the discretionary power vested
in the President in terms of section 12(1) of the Agricultural Land
Resettlement Act:
The President
may, at any time and in such manner and under such conditions as
he may deem fit, retake possession of land alienated.
The President
also has his own law, the Presidential
Powers (Temporary Measures) Act, for dealing with urgent situations.
Although such discretionary executive powers are often necessary
in times of an emergency, they are usually subject to stringent
legislative constraints. In Zimbabwe, however, the law has been
used more to press the executive's legislative agenda on land and
by-pass Parliament than to deal with emergencies.
There are three
other principles of law-making which the government has consistently
broken.
- The first
is that laws should not be made retroactively because it legalises
an action that was unlawful when it was committed. It is rather
like a blanket pardon; condoning wrong-doing.
- The second
is that laws should uphold the principle of natural justice. This
simply means that every person has the right to a fair hearing
in a court of law if it affects their rights or legitimate expectations.
And, to avoid any impression of bias, a judge must recuse himself
from hearing any matter in which he has an interest, such as seized
land.3
- The third
is that domestic law should reflect international customary law,
such as respecting human rights, paying fair compensation for
property compulsorily acquired, and honouring treaties.
There is one
final method of law-making that offends justice: to make laws that
coerce a person from exercising their fundamental rights. Under
the Land Acquisition Amendment Act of 2001, for example, the government's
preliminary notice to acquire land was valid for 2 years. But this
time was extended for any period that a farmer had lodged an appeal
with the Administrative Court. Its intent was to coerce farmers
from exercising their right to be heard in a court of law.
Compensation
The first occasion
of making land laws that ran counter to international law and natural
justice came with the enactment of Constitution Amendment No. 11
in 1990. When the provisions protecting land rights in the Lancaster
House constitution expired, the government was adamant that it would
'not buy land by market force'.4 Rather than paying 'prompt and
adequate compensation', the state would now only pay compensation
'within a reasonable time' and an amount - by its own reckoning
- that was 'fair'. The British Foreign Secretary expressed his government's
dismay, saying:
We are not
happy. Zimbabwe, of course, has the right to amend its Constitution
- but the principle of prompt and adequate compensation is a principle
of international law and to remove it from the Constitution, therefore,
has rather deep implications.5
Equally controversially,
Section 6 of Constitutional Amendment denied landowners the right
to challenge the fairness of any compensation awarded in a court
of law. As this provision was inimical to natural justice - because
it extinguished the fundamental right to a fair hearing6 - former
Chief Justice Dumbutshena (1984-1990) protested that the amendment
went against "all accepted norms of modern society and the
rule of law".7
Breaking
the law
The tipping
point, however, came when the government sponsored draft constitution
was rejected in a referendum in February 2000. Sensing defeat at
parliamentary elections scheduled for June, the government wilfully
broke its own laws by covertly aiding and abetting thousands of
ruling party supporters to unlawfully occupy white owned commercial
farms. In March 2000 the High Court declared the occupations unlawful
and gave the occupiers just a day to leave the farms. The court
order specifically directed the police to assist with the evictions
and ignore any countermanding directives from the executive. But
within days the Commissioner of Police applied to have the order
amended on the lame excuse that he had insufficient manpower to
carry out the order and, paraphrasing the President, that the right
of occupation merited a 'political' and not a 'legal' solution.
Despite another order affirming the High Court ruling the following
month, it was defied by the Commissioner of Police. The fact of
the matter was that the Commissioner's bounden duty no longer lay
with the state, its constitution, or the sanctity of judicial orders.
His loyalty was to the Executive President, who said, "This
is not a problem that can be corrected by the courts; it is a problem
that must be corrected by the government and people of Zimbabwe."8
The edifice of the rule of law was crumbling. Gripped with revolutionary
fervour, the President declared the Third Chimurenga: a war in which
unconstrained executive power would dispense with diplomatic niceties
and brush aside the law to rid the land of white farmers.
Earlier, in
February 2000, the President had unilaterally inserted a clause
into Zimbabwe's draft constitution stating that compensation would
be paid for farm improvements only - not for the land itself.9 This
responsibility would now rest with the 'former colonial power':
Britain. Undeterred by the people's rejection of the draft constitution,
the President presented this clause as Constitutional Amendment
No.16 to Parliament
where he still commanded a two-thirds majority. Needless to say,
the enactment of the amendment in April 2000 was ultra vires because
it is beyond the powers of one state to unilaterally impose an obligation
on another in its constitution. It therefore has no basis in international
law. It was also coercive. It made an established right to compensation
under international law conditional upon the unenforceable performance
of another party.
Rather than
defer to Parliament, the President moved quickly to give legislative
substance to the constitutional amendment by invoking his statutory
powers. In May 2000 the Presidential Power (Temporary Measures)
(Land Acquisition) Regulations 2000 came into force, amending the
Land Acquisition Act of 1992. Although its main purpose was to disavow
any compensation payable for land, its various clauses chipped away
at commercial farmers' rights. Owners could no longer appeal to
the Administrative Court to rule on whether the acquisition of their
farms for resettlement was 'reasonably necessary'. The mere identification
of their farms for resettlement was deemed to be prima facie evidence
that they were suitable for resettlement. This clause was also retroactive.
If the Administrative Court had ruled that the farm was unsuitable
for resettlement, the government could issue another acquisition
order, which could not be brought before the Court. The President
's regulations also offended the principle of natural justice. Farmers
were denied a fair hearing in any court to appeal against the government's
assessment of compensation. When the President's land acquisition
regulations were ratified by Parliament in November 2001,10 only
the last constitutional safeguard - an independent judiciary - stood
in his way.
A clear message
was soon sent to the judges. When the Supreme Court was about to
hear an application brought by the Commercial Farmers Union, a riotous
mob invaded the sanctity of the Supreme Court, shouting death threats
at judges. The Court, however, stood firm. It again ordered ministers
and the Commission of Police to prevent further unlawful farm invasions.
It also required land resettlement to be carried out constitutionally
and in compliance with the law. When the Supreme Court sat again
in December 2000, it found that:
Laws made by
parliament have been flouted by the government. ... The settling
of people on farms has been entirely haphazard and unlawful. ...
They have been supported, encouraged, transported and financed,
by party officials, public servants, the CIO and the army. ... The
rule of law has been overthrown in the commercial farming areas,
and farmers and farm workers on occupied farms have been denied
the protection of the law.
But the President
had already signalled his intent. 'The courts can do what they want,'
he said at his party congress, 'They are not courts for our people
and we shall not even be defending ourselves in these courts.' The
Supreme Court order was again disobeyed and the law broken.
The
rest is history
In early March
2001, Chief Justice Gubbay and other independent-minded judges were
forced to step down. In their stead the President appointed a new
Chief Justice and reconstituted the Supreme Court bench with judges
more amenable to his executive directives on land policies. Predictably,
in December 2001, the Supreme Court set aside the Court's earlier
judgement. It held that the Rural Land Occupier (Protection from
Eviction) Act, which legalised the unlawful invasions, was constitutional.
It exonerated the Commissioner of Police when failing to obey previous
High and Supreme Court orders. It also delivered for the executive
its coup de grace: a constitutional and lawful land reform programme
founded on the rule of law.
The words of
John F. Kennedy's still resonate today across our benighted land.
Notes
1 Anthony R.
Gubbay (2009) The Progressive Erosion of the Rule of Law in Independent
Zimbabwe. Third International Rule of Law Lecture, Bar of England
and Wales: London
2 Tom Bingham
(2010) The Rule of Law. Allen Lane: London
3 According
to the CFU, 16 Supreme and High Court Judges occupy contested farms
(ZimOnline, 16 February 2010). Neither they nor the Chief Justice,
who owns 2 farms, have recused themselves when hearing cases involving
contested land or farmers' assets.
4 The Financial
Gazette, 22 February 1991.
5 The Herald:
10 January 1991.
6 Article 7
of the African Charter of Human and Peoples' Rights, to which Zimbabwe
is a signatory.
7 The Guardian
(London), 13 December 1990.
8 The New York
Times, 17 April 2000 (International Crisis Group, Soil and Blood,
2004).
9 Anne Hellum
and Bill Derman (2000) Land Reform and Human Rights in Contemporary
Zimbabwe. Meeting of the African Studies Association: Nashville
(November)
10 The exercise
of the President's prerogative to issue regulations in terms of
the Presidential Powers Act is circumscribed by the requirement
that such edicts be ratified by Parliament within 6 months.
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