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The
legal profession and the judiciary as human rights defenders In Zimbabwe
in 2003. Separation or consolidation of powers on the part of the state?
Arnold Tsunga1,
Zimbawe Lawyers for Human Rights (ZLHR)
December 24, 2003
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"You lawyers,
you want to show off. You think you can just interfere in matters anywhere…you
are only a lawyer at court. Here you are nothing. Get away…get
out of the charge office. Far away!… Go to your court.2"
This article has been
necessitated by recent attacks on Zimbabwe Lawyers for Human Rights by
the state media, which has tried to create an impression that ZLHR has
a motive other than fostering a culture of human rights in Zimbabwe.
ZLHR is a non-partisan
organization whose main objective is to foster a culture of human rights
in Zimbabwe and encourage the growth and the strengthening of such rights
at all levels of Zimbabwean society.
ZLHR seeks to protect
the constitutional rights of all individuals in Zimbabwe and advocates
for the observance of the rule of law and protecting the independence
and integrity of the courts and lawyers. The unfortunate remarks of his
excellency the President of the Republic of South Africa Thabo Mbeki quoted
below that have a potential of creating a real danger of human rights
defenders being attacked or clamped down upon in Zimbabwe, make this response
all the more necessary.
President Thabo Mbeki
is quoted to have stated that "it is clear that some within Zimbabwe
and elsewhere in the world, including our country, are following the example
set by "Reagan and his advisers "to 'treat human rights as a
tool' for overthrowing the government of Zimbabwe and rebuilding Zimbabwe
as they wish. In modern parlance, this is called regime change.3"
Indeed these remarks are likely to have far reaching and grave consequences
on the operating environment of human rights defenders in Zimbabwe.
One cannot talk about
democracy without there being three distinct organs of the state represented
by the Judiciary, the Executive and the Legislature (Parliament). This
is normally referred to as the concept of separation of powers. The separation
of powers is necessary to introduce checks and balances in the manner
in which state power is exercised over those who are ruled. It allows
for equality before the law and the enjoyment of rights based on the rule
of law. In dictatorial regimes or states where there is failing democracy,
there usually begins to be a blurred separation of powers.
The Executive organ
of the state, which has control over the state machinery, (the army, the
police, the intelligence, and other law enforcement agencies) usually
becomes stronger than other organs of the state. In such undesirable situations
as has become the case in Zimbabwe, the Executive begins to undermine
other organs of the state. In Zimbabwe we have had the Executive refusing
to enforce certain court orders that are seen to be unfavourable to the
state or the ruling ZANU PF party4.
The Executive has also attacked the judiciary openly, quite unprofessionally
and unfairly in a number of cases, some of which are discussed more specifically
below. The government of Zimbabwe however has a history of attacking the
judiciary or members of the legal profession each time the Executive is
unhappy at certain judicial decisions5. Even
lawyers who have tried to defend the judiciary and the legal profession
from unwarranted attack have themselves become targets of abuse and slander
as happened with Zimbabwe Lawyers For Human Rights when they were attacked
in the government controlled Herald Newspaper of 29 November 2003 after
coming out strongly in defence of the independence of the judiciary. The
government controlled newspaper the Herald, commenced its article as follows:
"It is just
as difficult to stop anyone from using "Zimbabwe" for selfish
ends as is difficult to compel the Standard to carry the Zimbabwe flag.
This seems to be the case with the so-called Zimbabwe Lawyers For Human
Rights (ZLHR), that phony non governmental organisation which in fact
does the bidding of foreign governments, and sees rights of all those
that are not white farmers or members of the MDC [Movement For Democratic
Change] as non-human rights6!
However its Arnold
Tsunga needs to be told quite clearly that to claim to be a lawyer is
not as open-ended as claiming to be a patriotic Zimbabwean."
It is regrettable
that attacks on members of the legal profession have increased in recent
years as can be seen from the specific cases dealt with below.
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more by downloading the file above
1 Arnold Tsunga is
the Executive Director of Zimbabwe Lawyers For Human Rights and writes
this article in response to recent attacks on ZLHR and him in the state
owned and controlled Herald newspaper of 29/11/03 and 3/12/03.
2 Extract from a ZLHR statement quoting from a policeman who was allegedly
assaulting a lawyer in Victoria Falls, Zimbabwe on 15 August 2003.
3 It would also help if this article can be read by his excellency, the
President of the Republic of South Africa Thabo Mbeki given his highly
publicised attack on human rights organizations in Zimbabwe in ANC Today,
Volume3, No 49, 12-18 December 2003 titled We will resist the upside-down
view of Africa. His attack of human rights defenders is likely to unfortunately
result, whether intended or not, in an increase in attacks on human rights
defenders in Zimbabwe and worsen an already deteriorating human rights
record and increase the suffering of the majority of powerless Zimbabweans.
In particular his attack on human rights organizations is consistent with
the Herald attack on Zimbabwe Lawyers For Human Rights and The Legal Resources
Foundation in the Herald of 03/12/2003 where the article by one Caesar
Zvayi is titled "Wolves in sheepskins… ' Human rights' groups
in desperate attempts at political subversion".
4 The Executive has not enforced Court orders in the following cases inter
alia, Mark Chavunduka and Ray Choto -v- Ministry of Defence (1999 case);
Andrew Meldrum -v- The Chief Immigration Officer and ors (May 2003); Associated
Newspapers Of Zimbabwe Vs Chief Superintendent Madzingo &The Commissioner
Of Police HC8191/2003; Dorothy Kumunda &7others -V- District Administrator
Chikomba District &Another- HC9481/03; Charles De Kock -v- Mike Madiro
and 4 ors HH 217/03, Cuthbert Chivhunze &Others -V- John Chitozho&Others
-Mutare Court Case No.416/02; Commercial Farmers Union -V- Minister Of
Lands & Others 2000 (2) ZLR 469 (S); Bennet Brothers Farm Entrprises
Pvt Ltd -v-Vs Mupfururirwa &Others Mutare B.O393/03; Commissioner
Of Police -V- Commercial Farmers Union 2000(1)ZLR 503 (H); Commecial Farmers
Union -V- Mhuriro&Others 2000(1)Zlr 405 (S); Yorke and Another -v-
Minister of Home Affairs HC H264/82 HC H 247/82 Bennet Brothers -v- Mwale,Chogugudza,
and ors (numerous High Court and Magistrate Court cases), Natalie Dube
-v- Commissioner of Police, C/S Mabunda and ors (Mutare Magistrates Court
case), Morgan Tsvangirayi's Electoral challenge in the High Court at Harare
where Justice Devittee directed that Joseph Mwale and another be prosecuted
for allegedly torching to death Talent Mabika and Tichaona Chiminya, election
agents for Morgan Tswangirayi the MDC leader. The Zimbabwe NGO Human Rights
Forum in its report, The Abuja Agreement, Compliance or Non Compliance?
quote the state President as follows "[the Government would] respect
judgments where the judgments are true judgments. We do not expect that
judges will use subjectivity in interpreting the law. We expect judges
to be objective. We may not understand them in some cases but when a judge
sits alone in his house or with his wife and says 'this one is guilty
of contempt' that judgment should never be obeyed. I am not saying this
because we would want to defy judges. In fact we have increased their
salaries recently. We want them to be happy. But if they are not objective,
don't blame us when we defy them."
5 See the Yorke Brothers (supra) a 1982 case where Ushewokunze [Home Affairs
Minister then] had this to say about the legal profession " We are
aware that certain private legal practitioners are in receipt of money
as paid hirelings, from governments hostile to our own order, in the process
of seeking to destabilise us, to create a state of anarchy through an
inherited legal apparatus. We promise to handle such lawyers using the
appropriate technology that exists in our law and order section. This
should succeed to break the unholy alliance between the negative bench,
the reactionary legal practitioners and governments hostile to us, some
of whose representatives are in this country." The State President
[then Prime Minister] was also quoted as having said the following about
the judiciary in the same case on 29 July 1982, "the government cannot
allow the technicalities of the law to fetter its hands in what is a very
clear task before it, to preserve law and order in the country…We
shall therefore proceed as the government in the manner we feel is fitting…
and some of the measures we shall take are measures which will be extra
legal (See Greg Linnington's Constitutional Law of Zimbabwe LRF Harare
2001); In Mark Chavunduka's case (supra) when judges complained about
the non compliance by the Executive with court orders, President Mugabe
is reported to have asked the judges to resign and is quoted as having
said the following on the national television, " the judiciary has
no constitutional right whatsoever to give instructions to the President
on any matter as the.. Judges purported to do. Their having done so can
clearly be interpreted as an action of utter judicial indiscretion or
as one of imprudence, or as, as I regard it, an outrageous and deliberate
act of imprudence." The Herald's article of 18 July 2002 titled 'Judgment
against Minister sinister' is yet another example of the disrespectful
and contemptuous manner in which members of the Executive have taken to
treating the Judiciary. In that article Minister of Information Jonathan
Moyo suggested that contempt charges should never have been laid against
Mr. Chinamasa, the Minister of Justice. Moyo further insinuated that the
Honourable Justice Blackie had been handing down 'racist' judgments since
the Rhodesian days. His Excellency, the President of Zimbabwe Robert G
Mugabe appointed Justice Blackie onto the bench.
6 The MDC is the opposition political party in Zimbabwe.
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sheet
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