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Pretending to adhere to the rule of law
International Bar Association (IBA)
Extracted from IBA Weekly Column on Zimbabwe - No 057
November 22, 2004

Some repressive regimes use naked repression to suppress all dissent and don't bother to pretend to be operating within the framework of the law. In these countries the security agencies spirit away 'dissidents' and disappear them or detain them at secret locations and torture them.

These days, however, most repressive rulers take some steps to try to disguise their repression. They do so by using a façade of law and by claiming that they are adhering to the rule of law. 'Dissidents' will be arrested and tried under 'security laws'. There will be a Parliament to pass such laws, a police force to enforce them, courts of law to try violators and prisons to house the violators. But the regime will expect all these institutions to do their bidding. It will expect Parliament to rubber stamp the repressive laws it has invented, the police force to rigorously enforce these laws in order to stamp out dissident activity, the courts to convict the dissidents and impose harsh punishments upon them, and the prisons to make sure that prison conditions for dissidents are very unpleasant.

The Zimbabwean government repeatedly claims that Zimbabwe has a democratic system of government and that the rule of law is followed. To evaluate these claims it is necessary to identify the essential ingredients of democracy and the rule of law.

The essence of a democratic system is that the people elect the government. The people do so in regular free and fair elections. All political parties are able to campaign freely by holding meetings and rallies, and by using the public media to inform the electorate about their policies. A democratic society is a tolerant society in which people are entitled to express their views, including their criticisms of government policies. They can do in the media, at meetings and through peaceful demonstrations.

The rule of law underpins any democratic system. The rule of law is observed where:

• Government operates within the framework of the Constitution and the law, and obeys court orders;
• independent courts enforce the law and ensure that government abides by the Constitution and the law;
  
• law enforcement agencies and the courts act impartially and apply the law equally to all persons;
• the law protects everyone in need of protection and provides remedies to those harmed by violations of the law.

Zimbabwe holds periodic elections to elect the President and Members of Parliament. But these elections have, in the past, been far from being free and fair. Because it fought and won the liberation war the ruling party believes that only it has earned the right to rule. Army commanders and the police chief have sought to circumscribe who should govern Zimbabwe by publicly announcing that they would not recognise a government led by someone with no liberation war background. The ruling party views elections as a form of warfare where victory must be secured at whatever cost it takes. It is prepared to employ widespread violence and intimidation to prevent the main opposition party from campaigning and to terrorise opposition candidates, party officials and party supporters. Ruling party supporters, youth brigade members, secret service agents, police and army personnel are all used to harass and obstruct the opposition. Those in charge of running elections display blatant bias in favour of the ruling party and there is convincing evidence of extensive electoral fraud being used for the benefit of the ruling party.

The ruling party holds a majority in Parliament, but it is questionable whether it would do so if free and fair elections had taken place and the President didn't have the power to appoint thirty of the Parliamentarians.

The Executive has devised a whole series of repressive legislative measures. These have included legislation to suppress the private press and drastically curtail freedom of speech and freedom of assembly. It also is now intending to pass legislation that will prevent human rights organisations from operating. Disregarding adverse reports of the Parliamentary Legal Committee, ruling party Parliamentarians have simply rubber stamped this draconian legislation. (The Parliamentary Legal Committee reports on whether it thinks that proposed legislation is consistent with the Constitution.)

The ruling party has done everything it can to create a judiciary that will uphold repressive legislation passed by Parliament. Although it has not succeeded in completely destroying the independence of the judiciary, it has profoundly compromised it, especially at the level of the Supreme Court.

The police force and other security agencies have been transformed into partisan agencies whose main task is to use legal and extra-legal measures to suppress political dissent and opposition to the ruling party. At every turn these agencies invoke the security laws against opposition members of parliament, opposition supporters, media practitioners and others that have criticised government actions, and persons attempting to hold peaceful demonstrations. On the other hand, the protection of the law has to a great extent been removed from people who don't support the ruling party as the police often turn a blind eye to attacks upon opposition party supporters by ruling party supporters.

Although the Zimbabwean Government says that it respects the rule of law, the police and government officials are prepared with increasing frequency to disregard or disobey court orders.

Thus the Government of Zimbabwe tries to conceal its repression behind the mask of adherence to the rule of law, although it has to be added that it is quite prepared to take, or condone the taking of, illegal measures where it considers that it is necessary to do so. But the fact remains that in Zimbabwean major repression is directed against all who oppose or object to the policies of the present government and these persons have been deprived of their democratic right to engage in normal political activity.

*This column is provided by the International Bar Association. An organisation that represents the Law Societies and Bar Associations around the world, and works to uphold the rule of law. For further information, visit the website www.ibanet.org

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