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"Aren't
these hands clean now, My Lords?": a critical opinion on the on-going
ANZ legal drama
Alex Tawanda
Magaisa
November 2003
Alex Tawanda Magaisa,
a Zimbabwean lawyer, is currently a Lecturer in Law at the University
of Nottingham, UK. He can be contacted at alexmagaisa@hotmail.com
or alex.magaisa@nottingham.ac.uk
Preamble
There is
an old African folktale of the hare and the baboon. The story goes that
Hare and his family held a huge feast and invited his uncle Baboon and
family. On the morning of the day Hare and family burned the whole surroundings
of his homestead. When Baboon and family arrived for the feast Hare advised
them to go to the river to wash their hands first for no one with dirty
hands could enjoy the feast. Baboon and family returned and upon inspection
Hare maintained that their hands were still dirty. Because Baboon could
not avoid touching the burnt surroundings, his hands were always dirty
each time he returned from the river. Thus he never joined the feast on
account of his dirty hands. He got frustrated and left. But the story
goes further as, later that year, Baboon and family held an even bigger
feast. He invited his nephew Hare and family. But the venue was up in
the trees. Hare and family arrived but could not climb trees and so they
salivated on the ground as Baboon and company enjoyed their feast. Sadly
many of us seem to have forgotten the wisdom in these folk tales.
I. Introduction
This article
is a follow up to this author’s critique of the Supreme Court judgement
in the ANZ case that was delivered on the 11/09/2003. In that judgement,
the Court refused to hear the application brought by ANZ (Publishers
of the Daily News and The Daily News on Sunday) challenging certain
sections of the notorious Access to Information and Protection of Privacy
Act (AIPPA). That unprecedented refusal to hear a constitutional
application was based on the ground that ANZ had "unclean hands"
because they had failed to comply with law whose validity they were challenging.
In that critique,
I argued that, with all due respect, the Supreme Court had erred in applying
the doctrine of Clean Hands, a doctrine of equity, in matter involving
the determination of fundamental constitutional rights. Such an application
of the doctrine of Clean Hands poses a great hazard to the protection
and uninterrupted enjoyment of human rights.
In this contribution,
I argue that, even deferring to that doctrine of Clean Hands, given the
events of the weeks since that unfortunate judgement, ANZ is now perfectly
entitled to approach the Court for the determination of the constitutional
application on the merits. This is because the ANZ has done everything
required to comply with the law as required by the court. The question
turns on whether or not ANZ has complied with the law as directed by the
court. This opinion intends to explore that question and concludes that
compliance has been satisfied for to hold otherwise could mean that any
ANZ’s attempts to comply will never measure up to the expectations of
the court.
II. Brief history:
the unfolding drama
A number
of events have taken place since the September 11 judgement. ANZ immediately
submitted an application for registration to the MIC, which within a very
few days delivered a decision refusing to grant the application. As required
by AIPPA, ANZ filed an appeal to the Administrative Court, which, after
hearing the appeal granted judgement in favour of ANZ holding inter
alia and significantly that at the time it gave its decision, the
MIC was improperly constituted and was biased. One inescapable implication
is that the MIC was operating outside the law, the very same accusation
that it and the Supreme Court had levelled against the ANZ. Following
that appeal, ANZ tried to resume operations, but was again thwarted as
the MIC made an appeal to the Supreme Court. Thus the Supreme Court is
faced with two matters concerning the ANZ, the first which is the constitutional
application that it initially refused to hear and secondly, the appeal
by the MIC against the Admin Court judgement in favour of ANZ. During
the intervening periods, ANZ has faced the full force of the law enforcement
agents – seizure of property, arrests and detentions. Meanwhile ANZ has
stopped publishing in Zimbabwe. It has since moved to South Africa where
it launched a cyberspace edition.
III. Necessity
of pursuing the constitutional application
Before pursuing
this argument, one question stands in the way. Why would it be necessary
to pursue the constitutional application at a time when there is another
appeal before the Supreme Court in the matter of the application for registration?
It remains necessary because the resolution of that matter has the potential
of disposing the necessity of dealing with the vexatious appeal by the
MIC. It would also show that the ANZ never had dirty hands because in
the event that the Administrative Court judgement that the MIC was improperly
constituted is upheld, it would mean that not even the government nor
its agent, the MIC were complying with the law. Where the registration
body itself is operating outside the law, whether ANZ had attempted to
comply by applying or had chosen to ignore (as it did), either way, it
could not be tainted with any dirt. The Court has stated that he who operates
beyond the law has dirty hands and so if the MIC was operating outside
the law, it too had dirty hands.
The Supreme Court
finds itself in a potentially difficult position. This is because by refusing
to hear the merits of the constitutional application it took it for granted
that because the ANZ had failed to apply for registration it was operating
illegally without taking into account the potential illegality of the
operations of the MIC or the government. If it had done so, it could have
realised that there was potential that the hands of government and MIC
were tainted. Unless it is a foregone conclusion that the MIC appeal from
the Admin Court decision will succeed, there is every reason to believe
that the Supreme Court will dismiss it. The effect of a dismissal would
be to declare that the MIC was improperly constituted and therefore operating
outside the law, in which case viewed retrospectively, it would mean that
at the time that the government argued that ANZ lacked clean hands by
failing to register, it and its agents were also acting outside the law
and consequently also had dirty hands. It would fatally expose the reasoning
of the court in refusing to hear the constitutional application on that
shaky ground when it did not have all the information regarding the legality
of each party’s position. Little wonder therefore, that we have been arguing
that the doctrine of Clean Hands is inappropriate in cases of this nature.
IV. Cleansing the
hands of ANZ: what is compliance?
However
one must determine whether the constitutional application can be heard
at all. The Supreme Court held that the ANZ could still bring the constitutional
matter on the same papers but only after compliance with the law. Compliance,
it would seem, cleanses ANZ dirty hands. Which of course raises the question
of what it takes for compliance to be satisfactory for the purpose of
cleansing the hands of ANZ. There are at least two questions that arise:
- Does it mean ANZ
must apply for registration and if so, should the application be successful
to satisfy the compliance requirement?, OR,
- Is the mere submission
of an application for registration, even if unsuccessful, adequate?
In other words is
compliance synonymous with a successful application or is the filing of
an application enough?
In answer to these
questions, the Court attempted to supply some guidance. It stated that,
"Compliance
with the law does not necessarily mean submission of an
application for registration to carry on the activities of a mass media
service. It certainly means desisting from carrying on
the activities of a mass media service illegally" (my emphasis)
That statement appears
to mean that submission of an application is not enough. The court is
certain however that ceasing operations would satisfy compliance. This
meant that although the ANZ could submit an application for registration,
it also needed to stop operations in order to satisfy the compliance requirement.
This was probably meant to cover a situation whereby ANZ could have submitted
an application to the MIC the minute they left the Court and returned
the next minute arguing that having complied with the law they now had
clean hands. Simultaneously they would still be publishing regardless
of how long it took the MIC and the courts to fully determine the application
for registration. As it is, because they have had to stop operations,
the authorities can abuse the legal process, by delaying, appealing and
cross-appealing until the oceans run dry while ANZ is not publishing,
which satisfies them, for this has always been the chief aim or so it
seems. That is why I argue that ANZ should approach the court again and
argue for the hearing of the constitutional application, regardless of
the fact that the Supreme Court is also due to hear the appeal by the
MIC in the registration matter.
As far as the criterion
of compliance set by the Supreme Court is concerned, there is no doubt
that ANZ has fully complied. ANZ has halted operations in Zimbabwe as
required by the law. For the avoidance of doubt, the fact that one of
its publications, the hugely popular Daily News, is being published on
the internet, that is being done from South Africa and there is no necessary
conclusion that it is exclusively targeted for Zimbabwe. Whether cyberspace
publications of that nature fall within the legislative and judicial jurisdiction
of Zimbabwe is highly controversial and one would hope that the courts
will not embarrass themselves by venturing into those legal quick-sands.
The erroneous use of the Clean Hands doctrine has been a worldwide embarrassment
by itself and with respect, one hopes the courts will spare themselves
further scrutiny by not venturing into matters of cyberspace jurisdiction.
On the basis that it has complied by ceasing operations, the way is open
to ANZ to approach the Court for the determination of the constitutional
application.
V. Appeal from
the Administrative Court: does it matter?
One might
venture to ask however, whether the existing appeal from the Admin Court
by the MIC has any negative impact on that constitutional application.
I think not. The court clearly stated in no uncertain terms that stopping
operations is enough to satisfy compliance. If the court were to refuse
on the ground that the appeal regarding registration must be finalised,
it would introduce a new conundrum. It could mean that although mere submission
of an application is not enough, its success is necessary to cleanse hands.
That would be a wrong approach. It is submitted that in a matter where
successful registration is dependent upon someone’s decision it would
be wrong to determine compliance based on the success of the application.
Where registration is not dependent on someone’s decision and is a simple
formality that can be completed by the applicant, there is no problem
because you assess whether the applicant has done what is required. However
where that success depends on someone, it may place an insurmountable
barrier on the applicant to the extent that he will never measure up to
the compliance requirement. That is particularly wrong where the compliance
has a bearing on one’s constitutional rights to approach the Court for
the protection of fundamental right. The argument therefore is that the
cleanliness of ANZ’s hands is not dependent on the success of its application
for registration and since the MIC appeal to the Supreme Court is about
registration, it cannot negatively affect ANZ’s right to seek redress
in the constitutional matter. It has no bearing whatsoever on the cleanliness
of ANZ’s hands.
Supposing however
that the constitutional matter should wait there are two possible outcomes
of the appeal by the MIC:
i. MIC succeeds
and ANZ fails to register, in which case it still cannot operate,
ii. ANZ succeeds
and eventually gets registered, in which case it can operate and come
to court with clean hands.
If the ANZ fails to
register particularly because it has broken the law as held by the MIC
in its determination, it is difficult to see how else its hands will ever
be clean. That would mean it may never be able to approach the Supreme
Court in the constitutional matter for its hands will be perpetually dirty.
However, if as argued above, the stopping of operations is deemed enough
for cleansing hands, its failure on appeal would not affect ANZ’s right
to approach the court, in which case it is not necessary to wait for the
conclusion of the appeal regarding registration. The existence of the
appeal by the MIC should not therefore act as a barrier to the hearing
of the constitutional matter because by stopping operations, ANZ has complied
with the law as called for by the court. However if success of registration
is so important the only other possibility that would help to get the
court out of this situation is to guarantee that ANZ will win the registration
appeal, in which case ANZ’s hands will be clean and it can still be allowed
to bring the constitutional matter. But if success is guaranteed, why
wait till next year when the constitutional application can be heard today?
After all this is a matter of fundamental urgency since constitutional
rights are being eroded as each day passes.
VI. Conclusion
In conclusion,
as argued in the previous critique, the Supreme Court made a grave error
in relying on the doctrine of equity (Clean Hands) in a matter of this
nature. The court will find itself having to deal with the appeal from
the Admin Court, a decision that has implications on the cleanliness of
the hands of either party. Unless the MIC appeal is guaranteed success
on appeal, the Supreme Court might find itself having to find for ANZ
in which case their earlier judgement whereby they found ANZ to have dirty
hands would be hugely exposed. It could mean that it was the government’s
hands that were dirty. It could also mean that ANZ never had dirty hands
anyway and that they were right not to seek registration with a body operating
outside the law. On the other hand, if it upholds MIC’s appeal it would
close ANZ’s way to registration and it could mean that ANZ’s hands might
never be clean. What might happen, if the Supreme Court awards the MIC
a decision on appeal, thus closing ANZ’s route to a licence for the time
being and if the court were to hear the constitutional matter and find
that the sections are unconstitutional? Or do we already sense that the
constitutionality of the sections will be upheld anyway? That may indeed
be an expensive end of ANZ and all the freedoms that they are fighting
for. That should be a huge cause for worry.
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