Back to Index

This article participates on the following special index pages:

Mindset and actions of state representatives must change if there is to be a return to the rule of law
Zimbabwe Lawyers for Human Rights (ZLHR)
February 26, 2009

Zimbabwe Lawyers for Human Rights (ZLHR) is deeply concerned about the conduct of representatives of the Ministry of Lands, the Ministry of Justice and the Zimbabwe Republic Police (ZRP), as well as that of the Attorney-General and the Chief Magistrate with regard to issues relating to the handling of land matters around the country.

ZLHR notes that on 6 February 2009 it is alleged that officials from the Ministries of Lands and Justice and Parliamentary Affairs, together with the Zimbabwe Republic Police, convened a one-day workshop that sought to find ways to enhance quicker prosecution of commercial farmers who have allegedly been refusing to vacate gazetted land. The speakers at that meeting were the Attorney General, Johannes Tomana, the Chief Magistrate, Herbert Mandeya, and the Permanent Secretary in the Ministry of Justice, David Mangota. Also allegedly present were members of the ZRP, magistrates and prosecutors, amongst others.

In his presentation the Attorney-General allegedly cited failure by Public Prosecutors to interpret correctly the provisions of the Gazetted Land (Consequential Provisions) Act as having caused unnecessary delays in the trial of accused persons. The Chief Magistrate advised his fellow Magistrates to be guided by the recent Supreme Court judgment in the case between Mike Campbell and the Ministry of Lands where the Judge ruled in favour of the Ministry. Participants were also allegedly directed to disregard the recent ruling of the SADC Tribunal, as "it does not form part of Zimbabwe law". He further allegedly stated that it was improper for new beneficiaries to be barred from entering or getting near their farm when they are genuine owners in terms of the law by virtue of them being holders of offer letters.

It was during this meeting that it was allegedly agreed, amongst other things, that lands officers together with law enforcement agencies must do everything in their power to assist in the eviction of former commercial farmers who are refusing to vacate gazetted farms and whose cut-off dates have elapsed and that public prosecutors should ensure that cases pending at the courts are finalized by 21 February 2009. This is despite the fact that many of the targeted commercial farmers are protected against such action by the ruling of the SADC Tribunal. It is further alleged that this is not the only such meeting to have been undertaken recently.

Such directives accord with reports from ZLHR members who have, over the last two weeks or more, been representing affected farmers in various regions of Zimbabwe who indeed are being evicted and/or prosecuted before the courts.

In a land matter before the Magistrates' Court, the Ministry of Lands is usually the Applicant (as in the aforementioned Campbell case), while the Public Prosecutor is a representative of the Attorney-General, who advises the state (in this case the Ministry of Lands) of the legality of its actions in relation to each specific case. The Magistrate sits to consider each case as an independent arbiter. All these entities are supposed to take action and make decisions independently of each other based on the facts laid before them and on the law as applicable to those. This is the basic tenet of any civilized society where there is Rule of Law and separation of powers.

A situation where an Applicant has a meeting with the prosecution and the Magistracy, with input from the Ministry of Justice (which is supposed to ensure the proper administration of justice) and the parties - in particular the Magistracy - receive instructions from their head on how particular matters must be handled before facts and law are placed before them to inform a fair decision, is not only a gross injustice to potential litigants, but also will be seen by any right-thinking person as an illegitimate and malicious attempt to intentionally interfere with the independence of the judiciary and the proper administration of justice.

It is unacceptable that a prospective party to litigation sits together with the judicial officer and a supposedly independent prosecutorial authority and demands and receives prospective and undue protection as has allegedly transpired in this case.

ZLHR deplores these developments, which constitute a direct and intentional assault on each individual's right to the protection of the law, the presumption of innocence, and the right to liberty, amongst other fundamental rights. ZLHR considers this attack on the independence of the judiciary, as well as the collusion of the prosecutorial authority in allegedly attempting to subvert justice, a heinous attack on the Rule of Law.

It further clearly exposes the double standards of state representatives who are suddenly and publicly leading the clarion call for respect for judicial independence and allowing the law to take its course, whilst at the same time they are allegedly doing everything in their power to ensure that the Rule of Law and separation of powers is undermined and eroded.

ZLHR further expresses its grave concern about the absolute contempt with which the decision of the SADC Tribunal is being treated. It is truly sad, if the allegations are correct, that the head of the Magistracy - who himself as a judicial officer should be the first to recognize the vital importance of respect for judicial decisions by the executive arm of government on the Rule of Law - has decided to lead the call for defiance of a valid court order by our regional tribunal.

The SADC Tribunal is a body established by instruments discussed and agreed to by leaders of the SADC states. It was not imposed, and its decisions and independence should be respected at all times and not just when it is politically convenient to a government in respect of which an order is made.

Immediate steps must be taken by the responsible authorities to ensure the following:-

1. That a public statement is made and actions taken to ensure compliance with all court orders, including those of regional tribunals whose orders are binding and must be enforced.
2. That all representatives of the state institutions involved in ensuring the proper administration of justice cease forthwith all actions that undermine judicial decisions, the separation of powers and fundamental constitutional protections, with the heads of such institutions leading by example. This includes the abuse of public resources to convene meetings which seek to undermine the exercise of prosecutorial and judicial discretion which would otherwise ensure that justice prevails.
3. That an investigation is undertaken by the responsible authority to establish the veracity of the allegations against the Permanent Secretary in the Ministry of Justice and, if merited, disciplinary action is taken against him in terms of the law which governs his behaviour as a civil servant.
4. That an independent and impartial disciplinary tribunal is established to publicly consider the authenticity of the allegations and, if merited, to decide on disciplinary action to be taken against the Attorney-General for abuse of office.
5. That an investigation is undertaken to establish the veracity of the allegations against the Chief Magistrate and, if merited, disciplinary procedures be initiated against him in terms of the law.

This matter also highlights how critical it is to ensure that appropriate legislation and procedures are put in place to strengthen the independence of judicial officers and the office of the Attorney-General.

It is high time that we move beyond bemoaning the occurrence of such abuse of powers and press for uncompromising and appropriate action by government representatives in terms of existing legislation and administrative processes to ensure swift investigation and punishment of offenders where it is merited. Nobody is above the law, particularly civil servants and judicial officers, who should respect, promote, protect and fulfill their mandate and obligation to ensure the Rule of Law.

Visit the ZLHR fact sheet

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP