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This article participates on the following special index pages:
Index of articles on the mistreatment of the legal profession in Zimbabwe
Petition
to the Minister of Justice and the Commissioner of Police, over
the unlawful arrest of lawyers going about their duties and threats
against lawyers by the police
The Law Society of Zimbabwe
May 08, 2007
The Law
Society of Zimbabwe has for sometime been concerned at the relentless
and unjustified attacks on its members for actions taken during
the course and scope of their mandate as legal practitioners. The
attacks in the main took the form of vilification and threats by
the state media and politicians against those members of the profession
who would have taken on cases and causes which are unpopular with
the state.
Since the 11th
March, 2007 the vilification, intimidation and threats have assumed
physical proportions where members of the legal profession have
been physically assaulted, manhandled, chased out of police stations,
threatened with arrest, intimidated and generally harassed whilst
executing their lawful mandates as provided for under the law. The
threats of arrest have since been acted upon as two members of the
legal profession, Messrs Alec Muchadehama and Andrew Makoni were
arrested outside the High Court, Harare, by members of the Law and
Order Section. The arrests were entirely premised on their representation
of their clients in matters that remain pending before courts and
on which the courts have made no adverse pronouncements on their
conduct.
Following their
arrests, the two were denied access to their lawyers and members
of their families, their whereabouts were not disclosed to their
lawyers and members of their families, they were denied food and
medication and their rights to the full protection of the law were
severely compromised. Despite the High Court declaring their arrest
and detention unlawful, and ordering their immediate release at
about lunch time on the 5th May, 2007, the police refused to release
them and they remained in custody overnight. Following a second
application, the High Court ordered that they be produced before
it on the 6th May, 2007 and once again, the police refused to produce
them and they remained in custody as at 7th May, 2007. Lawyers acting
for the two were harassed, threatened and severely intimidated by
officers of the Law and Order Section as and when they served the
court applications and court orders and the general refusal to accept
service of court process by members of the Law and Order Section
continued.
The harassment,
intimidation , threats and assaults have since taken a new turn
in that an officer in the Attorney-General's office who handled
the first application has reportedly been harassed, assaulted, intimidated
and threatened by members of the Law and order Section for carrying
out his duties as mandated by the Constitution of Zimbabwe.
In addition
to the above, police officers from the Law and Order section at
Harare Central police station took the detained lawyers to their
offices, those of the law firm of Mbidzo, Muchadehama & Makoni.
The police, led by one Detective Inspector Muchada, were purportedly
armed with some search warrant which they refused to show and proceeded
to raid the law firm. Lawrence Chibwe, the Deputy Secretary of the
Law Society of Zimbabwe, and Otto Saki, were threatened with arrest
when they sought to scrutinise the search warrant. Police proceeded
to remove certain files and documents from the offices and did not
allow the lawyers to take an inventory or remain present during
the search. It is unlawful to search and remove documents from law
offices, as they are protected by legal practitioner-client privilege.
This, however, did not deter the police.
The Law Society of Zimbabwe is extremely concerned at these developments
which are clearly in breach of the Legal Practitioners Act, the
Constitution
of Zimbabwe, regional, continental and international instruments
meant to protect lawyers in the execution of their duties.
In terms of
the Legal Practitioners Act, legal practitioners are entitled to
represent their clients without fear of being harassed and intimidated
by the authorities. Legal practitioners are no different from other
professions such as Accountants who carry out work for all manner
of clients without intimidation and harassment. Section 18 of the
Constitution of Zimbabwe equally entitles persons charged with any
criminal offence to the full and secure protection of the law, which
include the right to legal representation by a legal practitioner
of his choice. This right cannot be fully enjoyed in an environment
where legal practitioners are vilified, intimidated, harassed, assaulted,
arrested and detained for carrying out mandates given to them by
the most supreme law of the land.
Zimbabwe is
also a state party to many international instruments which provide
for the protection of lawyers in the execution of their duties.
These include the African Charter on Human and Peoples Rights whose
Article 7(c) provide for the right to be defended by counsel of
choice. This right has been expanded upon by the African Commission
on Human and Peoples Rights in its Principles and Guidelines on
the Right to a Fair Trial and Legal Assistance in Africa. These
principles specifically provide that "Prosecutors are able
to perform their professional functions without intimidation, hindrance,
harassment, improper interference or unjustified exposure to civil
penal or other liability". Similar provisions are found in
the 1990 UN Guidelines on the Role of Prosecutors. Item G of the
Principles provides for access to lawyers and legal services. In
particular, Item (G) (b) provides that states shall ensure that
lawyers "are able to perform all of their professional functions
without intimidation, hindrance, harassment or improper interference"
whilst sub-section 3 of the same Item obliges state parties to ensure
that lawyers "shall not suffer or be threatened with prosecution
or administrative, economic, or other sanctions for any action taken
in accordance with recognized professional duties, standards and
ethics". The office of the UN High Commissioner for Human
Rights on the 27th August to 7th September, 1990 adopted Basic Principles
on the Role of Lawyers which specifically provides for access to
lawyers and legal services, with a specific guarantee under Item
15 where states are required to ensure that lawyers "are able
to perform all of their professional functions without intimidation,
hindrance, harassment or improper interference".
There can be
no doubt, therefore, that the continued vilification, harassment,
intimidation, assaults, arrests and detentions, are breaches of
not only Zimbabwe's own domestic legislation, but also constitute
a flouting of internationally recognised basic conditions under
which lawyers are supposed to operate.
We, as members
of the Law Society of Zimbabwe, call upon the government of Zimbabwe
and all its organs to immediately:
- Abide by
provisions of Section 18 of the Constitution of Zimbabwe and all
the international principles set out hereabove;
- Create an
environment where the independence of the legal profession will
not be compromised in anyway;
- Forthwith
desist from harassing, intimidating, threatening, assaulting,
arresting and detaining lawyers for carrying out their professional
duties as recognised by law;
- Prosecute
all law enforcement agents who interfere with lawyers whilst acting
in their professional capacities;
- Ensure the
enforcement of all court orders by the authorities, in particular
law enforcement agents;
- Ensure that
the constitutionally guaranteed independence of the Attorney-General
is not compromised by the intimidation, harassment and any other
improper hindrance or interference with prosecutors and law officers
in the performance of their professional functions.
- Stop forthwith
the practice of searching and or removing documents and or files
in the lawful custody of lawyers or their offices in violation
of search and remove procedures from law offices, as they are
protected by legal practitioner-client privilege.
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