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Seat: Interview Beatrice Mtetwa
Violet Gonda, SW Radio Africa
July 05, 2013
guest is prominent human rights lawyer Beatrice Mtetwa who was in
London recently to launch the film about her work in Zimbabwe, ‘Beatrice
Mtetwa and the rule of law.’ The award-winning lawyer is currently
on trial for allegedly insulting the police while trying to defend
her clients. She talks about the rule of law ahead of elections
and explains how ‘the abnormal has become normal.’ How
independent are the Constitutional Court judges? Why does Mtetwa
say the MDC formations often keep quiet when the machinations by
ZANU PF are going on? To what extent has civil society been neutralized
and infiltrated? She also responds to criticism that she is driven
by fame and money.
Gonda: My guest on the Hot Seat is prominent human
rights lawyer Beatrice Mtetwa who was in London recently for the
official screening of her film “Beatrice Mtetwa and the Rule
of Law”. Welcome on the programme Beatrice.
Mtetwa: Thank you Violet.
of all, what is your main take-away from this film?
a film that I’m hoping will really be used as an advocacy
tool in any country where there’s a rule of law deficiency.
Although Zimbabwe is being used in the film, the story there could
be in any other country really. So I’m hoping that it might
help advocacy on rule of law issues and how lawyers can play a role
in trying to restore the rule of law.
You actually say in your film that President Mugabe and Zanu PF
have always engineered the legal and judiciary system in their favour;
you said: “Unlike a lot of other dictators, Robert Mugabe
doesn’t just go out and do what he wants. He first goes to
and passes a law and when you say ‘hey you can’t do
that’, he will say that is the law.” Can you elaborate?
Well we have seen many unjust laws being put in the statute books
to say that this is the law. You take for instance AIPPA
which resulted in many journalists having to leave the country and
many media houses being shut down. Everybody knows that, that law
ought not to have been really passed and that it ought not to have
withstood constitutional scrutiny. It is an unjust law but it was
meant to target a specific group in the media industry. And we have
many such laws which were used including the laws used in the appropriation
of farms. So you find that what was illegal yesterday automatically
becomes legal today because the law now says so regardless of how
unjust and how unconstitutional that law is.
Do you agree with people, especially in the MDC formations who are
saying Zanu PF is manipulating electoral rules in their favour?
Mtetwa: But they’ve
done that, they’ve always done that – why should they
stop now? The problem is that the MDC always cries foul at the end
of the day; when the machinations are going on they are quiet. When
judges were suddenly sworn in ahead of the constitution becoming
law, and they were made Constitutional Court judges – and
these include a judge who is known to have subverted electoral rules
before – they (MDCs) completely kept quiet about it. There
was not a squeak from them. What did they think was the plan? That
was such a dead giveaway, you would have expected them to have complained
at that stage – that hey you can’t pack the Supreme
Court ahead of the constitution becoming law, you have to consult
us and yet they didn’t do anything like that. They started
crying foul after the event, not before.
Gonda: So are the MDC
being out-maneuvered by Zanu PF?
Mtetwa: You know I think
they give too much good faith to a grouping of people that has never
really had good faith. And they certainly are being out-maneuvered
because they are not as pro-active as they ought to be. They do
not look at strategies ahead of things happening, they do not analyse
what might have gone on just before key events take place –
to say why is this happening, how can we stop it?
Gonda: Some observers
actually say it would actually appear that what is happening is
a perfect plan or plot by Zanu PF to obstruct their partners in
government from dealing with the issue of elections and preparing
for elections. Do you see it as that?
Well that’s part of politicking. If you are politicking and
you want to remain in power, you have to strategise. You look at
ways of how to defeat your competitor and that’s what Zanu
PF is doing. And if the MDC doesn’t see that as an diversion
strategy that is meant to really make them worry more about when
elections are than getting themselves prepared for elections, they’ll
have themselves to blame at the end of the day. It’s a game
for politicians and those games unfortunately are not black and
white ruled games, you do what you think will make you get back
A lot of people are surprised that the MDCs were actually shocked
that President Mugabe would use a presidential decree to controversially
fast-track amendments to the Electoral
Act to by-pass parliament and that that Justice Minister Patrick
Chinamasa unilaterally filed a court application requesting an extension
of the July 31st poll date without consulting. Your thoughts on
If we go back to the beginning of the GNU
soon after they signed the Global
Political Agreement, we have had acts of unilateralism from
Zanu PF from day one. Appointment of judges, appointment of governors,
virtually everything has been done on a unilateral basis. I don’t
know why suddenly they should think that Zanu PF would change at
the end of the GNU – particularly where the stakes are so
high. So there’s no trick that they’re not going to
use in the book to really try and secure power for themselves. So
I don’t understand why anyone should be surprised that what
has happened in the last week has happened because it’s been
happening for the past four years.
Gonda: What did you make
of the idea of extending the poll date by a couple of weeks?
Mtetwa: Even if you extend
and even if you put new electoral rules into place, and you do the
relevant amendments, I don’t know that there’s sufficient
time that will make the people out there, for whom these amendments
are meant, understand that the game of playing politics has now
changed. Those who committed political violence – when are
they going to be told that political violence this time around will
be treated differently? How are they going to then conduct themselves
differently when there’s hardly any time for any advocacy
– to say to people out there – this time around, if
you do x, y, z, these are the consequences?
The time is just not
there and with the limitations that are there in terms of access
to information, I frankly do not believe that out there in the rural
areas people will believe that the rules of playing the political
game have changed at all.
So yes you can have those
amendments but on the ground I don’t know that at a practical
level, they will inform the electorate of any changes in our electoral
I personally think that
the advocacy for people out there to know what is doable and what
is not doable is crucial and that therefore they ought to have pushed
for dates certainly in October at the very earliest – to make
sure that really on the ground people are aware that there are these
changes and what these changes mean for them and that there’s
nothing to fear in going out to vote for a person of your own choice.
A two-week extension is not going to change anything on the ground.
It might change stuff in the statute books but if there is a new
law that the people don’t know, how do you expect it to really
influence the voting patterns of persons?
What did you make of the initial Constitutional Court judgment?
Mtetwa: There was nothing
surprising about it for me actually but I was quite pleased that
there were two judges who were able to assert their independence
and interpret the constitution as they saw fit. But I honestly do
not believe that anyone unexpected any differently from the judges
who agreed with each other on the interpretation, the majority decision
Gonda: How independent
are the judges who sit on this bench?
Mtetwa: It’s very
difficult to say because independence can be very difficult to judge.
The fact that two of them had dissenting views means that when they
want to exercise their independence they can do so but I don’t
know that we can say all of the ones in the seven are not interested
in elections. I mean Justice Chiweshe is known to have played a
crucial role in the last election. One of the questions that one
would have to ask is should he have been one of those judges to
sit in an electoral case of this magnitude particularly taking into
account his involvement in the last elections. I don’t know
that he can be as independent as he ought to have been particularly
on the issue of elections.
Gonda: The fact that
there are 31 cases in the Constitutional Court that was just constituted
about two months ago – what are the implications of this?
Mtetwa: I don’t
know what the other cases are about and whether they’ve been
brought on an urgent basis but certainly all election cases are
treated urgently on the basis of the precedent that they set in
the Mawere case – because if you were able to find urgency
in the Mawere case you ought to find urgency in every other constitutional
case. Because there ought to be equality before the law for all
persons who bring to court constitutional matters to do with the
Gonda: In his application,
on behalf of the government, Justice Minister Patrick Chinamasa
apologized to the judges saying he didn’t want to file this
poll date extension application but that he was forced by SADC to
do that. What did you make of that?
Mtetwa: Well Chinamasa
has set a precedent before where he has gone to court in Zimbabwe
to say to that court it should disregard decisions of the SADC Tribunal
because that’s an external body. So he virtually wanted to
use that very same precedent to this Constitutional Court to say
that these are the external busybodies who are trying to influence
our legal system, therefore you are at liberty to disregard their
decision as you did before with the SADC Tribunal decisions. There
can be no question that that was the intention. For him it is a
game particularly when you take into account the fact that Chinamasa
was not an applicant in the original judgment. In fact they were
respondents and it’s one of the most unusual cases where you
are sued, and then instead of Mawarire running with that judgment,
now saying ‘it is me whose rights are being violated’,
it is now the person who was sued who is saying ‘oh I am sorry,
this is what I wanted’. It is a dead giveaway that clearly
Mawarire was a proxy for the Chinamasa’s of this world. And
that therefore the Constitutional Court was really hoodwinked into
thinking that this was a Mawarire matter. Why should he apologize?
He never went to Court to ask for that order. It is an order that
was supposed to be in favour of Mr. Mawarire. The issue was whether
Mr. Mawarire’s views overcame the views of all the other persons
who were now before the Constitutional Court and had various issues
to take with the elections.
The others wanted Chinamasa to withdraw the original application,
but wouldn’t that have influenced the judges already since
they would have seen the first affidavit talking about all these
other problems he had noted, such as being forced by SADC?
Mtetwa: If it was withdrawn obviously it ought
not to have influenced them but we recently had a case in the High
Court where a judge proceeded to give judgement in a matter that
had already been withdrawn so you never really know how it would
pan out. But you know there is a precedent where the President has
gone to Court to ask for extensions in the case of those MPs who
wanted by-elections held and Chinamasa went to Court time and again
to say ‘oh we need an extension, we need an extension and
we need an extension’ and the Court granted him that. So it’s
not like going back to Court in this particular case would have
be any different. What will be happening is something that has already
been done and has already been granted because Justice Chiweshe
heard the last of those applications where extensions were being
sought and granted them. So it’s not like it was something
new for the Court to vary its own judgement and to extend the period
in an election case.
Gonda: I remember around
this time five years ago, you were busy defending many victims of
political violence or political detainees – is it different
this time round?
I don’t think it is different, that’s why I’m
concerned with the short time periods where really civil society
will not be able to be involved in electoral processes, where there’ll
be no advocacy particularly on the issues of political violence
because the time just won’t be there – and where really
you hardly have had any advocacy issues around political violence
even from the political parties and so I don’t expect that
there will be any difference because the violence will be there.
But around this time in 2008
there was a lot of violence, there was a lot of abductions,
arrests. Hasn’t that changed though to some extent?
Mtetwa: I think that
what you are not looking at is the fact that last time around this
was the run-off period where now the stakes were even higher than
first time around. So clearly that run-off period had a lot of political
violence because of what is was, and if you recall the MDC leader
actually withdrew from participating in that run-off because of
the violence. So there’s that slight difference but we don’t
know what actually is going to happen this time around because it’s
not like there’s been an election and then there has to be
a run-off. That certainly makes a huge difference because of that
run-off period that resulted in the stakes being higher than in
any normal election.
A lot of people have been excited that Zimbabwe now has a new constitution
– do you feel that we are heading in the right direction with
the new constitution?
Mtetwa: It’s a
good thing to have one’s rights clearly defined in a constitution,
they are useful but at the end of the day, a constitution is just
a piece of paper that has to have its provisions interpreted by
the Constitutional Court and whether that Constitutional Court will
interpret it in a manner that will give people rights, the jury
is still out – we don’t know whether that is going to
happen. So for me I think that there’s over-excitement on
there being a new constitution because we’ve always had a
constitution, it’s always had a Bill of Rights but those Bill
of Rights were not interpreted in a way that gave the people of
Zimbabwe basically the rights that were guaranteed. So I don’t
know what has changed particularly when you look at who is going
to interpret the constitution. It’s exactly the same men and
women who were interpreting the previous one. I don’t know
why people think there will be a damascene change in the interpretation
of the new constitution.
What about the Criminal
Procedures Act? I know a lot of human rights lawyers have been
complaining about that as the State has invoked this provision several
times to keep political detainees in prison for longer than is required
by law. What is the status of that in the new constitution?
Mtetwa: That section
has been challenged even under the old constitution and the challenges
have not as yet been set down but there’s been no attempt
to have that section repealed because it clearly is unconstitutional
to have a court decision suspended on the mere say so of one party
to proceedings. It just clearly is unconstitutional because it is
taking away rights that have been granted by a Court because one
side to the proceedings has just said ‘I invoke the section’.
There’s no attempt to get the Court to then say why are you
invoking? This is not a proper case for invocation and therefore
my decision stands no. So you have one side making a decision and
it’s the kind of provision that you would expect the Constitutional
Court to have really taken seriously and heard those cases seriously.
But it goes back to the selective application of the law, sections
like that will be there, they can be repealed but the point is we
are still going to have arrests that are based on who is who and
not who has committed which crime until there is a political will
to really ensure that there is equality of all before the law.
Gonda: I’m sure
you are aware that there are quite a few army personnel who are
going to contest in the next elections on a Zanu PF ticket. How
does the law interpret civil servants who break their code of neutrality?
seen how unevenly that law has been applied – if you get someone
who’s not politically connected to Zanu PF standing as a civil
servant, they immediately lose their job but you have serving police
and army persons going out to participate in elections without resigning
and nobody challenges that. And the courts are not very quick to
stop that unless of course Jealousy Mawarire runs to court to say
I have issues with this and the Constitutional Court quickly convenes.
Gonda: Can you remember
how many perpetrators of political violence have actually been brought
Mtetwa: I wouldn’t
have the figures offhand frankly but very, very few perpetrators
of political violence have been brought to book, even those that
are very well known. But I don’t have the figures with me.
Gonda: So is the police
force just incompetent or they just can’t find these perpetrators?
Mtetwa: There are many
good men and women in the police force but the police force works
on a command structure and however much the police might want to
do certain things if those who are in charge of them do not want
those things done they are unable to do so.
Gonda: How has it been
like, Beatrice, to do your kind of work in this environment?
Mtetwa: It’s so
difficult. Sometimes the lines are blurred, you really don’t
know what the law is and how you are expected to behave because
the rules change depending on who is involved. And it’s been
going on for so long that the abnormal has become normal. Sometimes
you don’t even realize that hey this is not supposed to happen
because it happens with such regularity that you even think it is
a normal thing to do.
Gonda: So how do you
respond to attacks against you in the state-controlled media and
especially by Zanu PF Politburo member Jonathan Moyo who says you
are only doing this for the money, for the fame and that you are
being used by western countries?
Mtetwa: It would be great
if somebody was paying me huge amounts of money for what I do but
if I told you how many cases I have done for which I have not been
paid you’d be extremely surprised. I have been impoverished
by the kind of work I do because if I had told myself that I’ll
just do corporate work I definitely would have been able to charge
for that but unfortunately if you go and represent some activist
who has no money, who is going to pay you?
The attacks are expected
but for me I really don’t mind them. What it means for me
is that what I’m doing is getting noticed and it’s making
a difference. You wouldn’t attack somebody if you didn’t
think that what they are doing is having an impact. So I always
cut out those stories where I get attacked and I frame them and
I call them my Zanu PF awards because that’s how I look at
And the attacks do get
ugly. When I was arrested, the sexism, the xenophobia that came
out – I’m supposed to practice law as a muroora –it’s
like wow how do I practice law while I’m behaving like a good
muroora? That is just so sexist it’s unbelievable and you
can see that nobody even looks at the gender aspects of it, nobody
would ever write something like that about a man. It’s sexist,
it’s xenophobic but that’s what we expect of them.
Gonda: There were also
some reports in the state media implying that you could face deportation.
Are you worried about that?
Mtetwa: Violet if I really
stayed all night worrying about everything that is being plotted
against me, I wouldn’t be able to do my work. You know I’ll
just take whichever comes my way as and when it comes; my focus
is my work.
Gonda: Some observers
say it would appear that human rights defenders are being tied up
in endless trials defending themselves. Would you agree?
Well it’s certainly part of the strategy. If you look at how
many human rights defenders have been arrested in the last couple
of months you’ll see that ZimRights
personnel are being prosecuted in court right now so if they had
any advocacy work to do around elections they can’t be doing
that because they are tied up in trials and the same with lawyers.
Basically lawyers are being tied up with trials in order to ensure
that they don’t represent their clients and they don’t
concentrate on their work. You look at some of the MDC members who
are part of the Glen
View 29, some of whom have been exonerated even by the State
witnesses but they are still in court to make sure that they are
tied up in trials that are endless. So yes it is part of the strategy
to direct all of our attention from doing our core business to defending
ourselves personally in the courts.
Gonda: I know we can’t
discuss your trial, your case right now but when do you think it
will be finalized?
Mtetwa: The trial resumed
on the 29th of June – a Saturday – I’m being tried
on a Saturdays I don’t know why. We are still cross examining
the first witness.
Gonda: How united is
the pro-democracy movement as observers say there appears to be
a lot jostling for power and fighting for donor funding in the civil
society. Is this a correct observation?
Mtetwa: There has been
infiltration of some of the civil society formations but also people
shouldn’t forget the fact that most of the NGOs are competitors
in a lot of respects and therefore there’s bound to be tension
here and there if one NGO is seen to be behaving as if it is a super-NGO
or has more funding than the others. So that aspect of competition
will also come in from time to time.
I also think that once
there was the Government of National Unity, there are some NGOs
that were seen as extensions of the MDC and therefore have not been
as vocal in speaking against the MDC when it became part of government
as they were before it became part of government. So that sort of
neutralized some of the NGOs to an extent where if you say something
against the MDC you are seen as being Zanu PF or you know how everybody
gets labeled in Zimbabwe. You are either for us or against us which
really ought not be the case because civil society ought to be there
to deal with issues of concern right across the board and they shouldn’t
be seen as part of any political formation.
Gonda: What role has
the donor community played in this?
Mtetwa: Well the donor
community also has had a role to play in that there are some who
feel very strongly that the MDC hasn’t performed too well
in the inclusive government, there are some who desperately want
to re-engage with Zanu PF. So all of those different contestations
have filtered down to civil society and you can see that there’s
influence on the ground on what might be actually going on.
Gonda: And a final word?
Mtetwa: I just hope Zimbabwe
will have free, fair and peaceful elections and that human rights
defenders will be able to do their bit without being harassed.
Gonda: Thank you very
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