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In defiance of the courts again: A critical opinion on the detention of Phillip Chiyangwa
Alex Tawanda Magaisa
January 27, 2004

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

I. Introduction
This opinion considers the legality of the continued detention of Phillip Chiyangwa in defiance of the High Court order. I argue that the state was wrong to defy the order of a court of law. Further I argue that it is imperative for organisations that purport to represent the rights of men and women to take principled and consistent positions when defending the rights of every individual regardless of their position in society. Any failure to do so smacks of hypocrisy and betrays selective treatment, which all principled human rights defenders abhor. Not everyone will agree with my opinion, which is controversial considering the individual in question - but I argue not to defend Chiyangwa, but to defend the rights of all men and women. I am prepared to do so because I believe the rights of people are more paramount than the identity of individuals involved. After all opinion-making and tolerance are the hallmark of the open society that we yearn for. I shall state a brief summary background of the facts.

II. Background
The financial crisis in Zimbabwe brought down a prominent asset management company called ENG Capital Asset Management Company. Two of the directors were arrested on New Year's day. A prominent businessman and Member of Parliament for the ruling ZANU PF party Phillip Chiyangwa was called to give evidence in connection with the matter. In typical outrageous flamboyance Chiyangwa made a dramatic performance in the magistrates court. More particularly he is alleged to have interrupted the proceedings of the court, threatened to "deal" with the police officer investigating the matter and generally showed lack of respect to the court of law.

The following day speaking at a function the Acting President indicated his displeasure with politicians who were attempting to flex political muscle and threatened to take action as is necessary. The next day Chiyangwa was arrested and unceremoniously led to the police cells where he was incarcerated. Subsequent to that lawyers for Chiyangwa were able to secure bail from the High Court. However the police refused to comply with the court order and he remained in detention. There were further legal manoeuvres from the Magistrates to the Supreme Court and eventually, after eleven days Chiyangwa was released on bail. This opinion was initially written as a response to the state's refusal to obey the initial High Court order. The Zimbabwe Lawyers for Human Rights (ZLHR) also issued a statement, raising concern over the handling of the matter. I shall now proceed to argue why I believe that the state's actions were wrong and why principled defenders of human rights should have been worried regardless of Phillip Chiyangwa's position in society.

1. I was somewhat relieved to read the statement by the Zimbabwe Lawyers for Human Rights (ZLHR) in connection with the state's defiance of the High Court order and continued detention of Phillip Chiyangwa. I was relieved because it confirmed my own views on the handling of the matter by the state, which I had initially been hesitant to liberate.
2. It may sound strange that I (or indeed the ZLHR would seem to represent the interests of a man who belongs to and has actively participated in a party that has been trampling on the rights of other people. Previously I have vigorously advocated for the rights of men, women and organisations whose rights have been violate by the machinery of which Chiyangwa is part of. But I argue from a position of principle and shy away from the partisan politics that divides our nation today. To my mind, to allow our judgement to be clouded by the partisan politics that divide our nation today would be to do the very same things that we condemn the government and ruling party for.
3. Chiyangwa, flamboyant though he is, has never been particularly popular among the general populace. His arrogance and extravagance in the midst of the suffering masses has never been looked at kindly by many. Indeed it would be very easy for pro-democracy elements to rejoice at the humiliation of a supposed foe of democracy. Unsurprisingly and perhaps naturally many would be tempted to argue that it serves him right.
4. In my opinion however and perhaps unnaturally, we have to rise above the messy politics just as we have continually encouraged the state to uphold the rule of law in cases affecting of pro-democracy elements. The bottom line in all this is that the state has refused to obey an order of the High Court and in so doing, it is perpetuating the culture of trampling on the rule of law, permitting instead the whims of the executive to reign supreme of rights of men and women. Whether it is against our friend or our foe, the result is the same.
5. I am reminded of the famous statement that if you refuse to stand for the rights of another simply on the grounds that you are not affected, when you become the next victim there will be nobody to speak for you. So the lawyer will remain silent when the doctor is in trouble and the nurse will remain silent when the lawyer is in trouble. When the nurse is in problems, the teacher who remains silent will also lack support when he is in trouble and the window-cleaner remains quiet. The moral of this famous example is that whenever you see rights of others being trampled upon, you must always be seen to be supporting their rights. It is not about supporting a particular individual but it is about protecting the rights of the individual. It is the principle that is paramount.
6. The refusal to obey a court order is not new and the state has not suddenly become law-abiding by arresting and detaining Chiyangwa. For many months the state continued to defy the orders of the High Court and the Administrative Courts in respect of judgements in favour of the ANZ, publishers of The Daily News. Readers will recall the critical articles that I have written on this matter¹. We are all aware of that circus which has been so tragic. If anything, the many state officials making contemptuous statements are all disobeying the lawful orders of the courts in connection with the ANZ matters and can also be deemed to be in contempt of court. If Chiyangwa was arrested for that, why should they not be arrested too? This is not to justify Chiyangwa's conduct - If he committed a criminal offence he has to face justice but I am arguing also that those who have committed offences should get the same treatment. My major point of criticism is that there is selective application of the law, as in the many other cases before where members of certain parties or opinions are held responsible, while others are allowed to go free. For example the accused in the Nkala case (Zanu) have been brought before the courts while nothing has happened to the perpetrators of the gross murders of Tichaona Chiminya and Talent Mabika (MDC) four years ago. Ministers and senior officials like Mudede have refused to obey the courts in the recent past but none have been arrested or detained for patently obvious offences. Distributive justice requires that similar cases are treated alike and I do not see that being done in the latest cases.
7. The refusal to obey the High Court order is symptomatic of authorities that have no respect for the rule of law. It undermines the authority of the court. Perhaps Chiyangwa now realises the wrongs that his party and government do unto others. The conditions of the prisons in Zimbabwe are inhospitable to say the least and I would not wish my sister, not even my own enemy to be subjected to such horror. But even that is not the point, it being that it is wrong for the police to take the law into their own hands.
8. In my view, to support the continued detention of Chiyangwa in defiance of the court orders on the grounds that he is an arrogant man who should face the music is tantamount to justifying the state's refusal to obey the court orders in the cases such as those involving the ANZ. Indeed to celebrate Chiyangwa's unlawful detention is tantamount to celebrating the state's unlawful actions when it disobeys the court orders such as in the ANZ case.
   

Ironically there may be a positive outcome for democracy from this debacle. Perhaps now that Chiyangwa has finally been released, he has seen the unfairness that others always complain about. By defending his rights he will also realise that not everyone is as partisan as he might have once thought. Perhaps even the unthinkable will happen and he too will be persuaded to join the democracy train…. Or at least to alight from the Autocracy train and observe from the sidelines. Even the worthy book of God has many stories of life changing events. And changes come in so many ways. This might just be one of them.

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