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Manipulation of the justice system
Media Monitoring Project Zimbabwe (MMPZ)
Extracted from Weekly Media Update 2004-11
Monday March 15th - Sunday March 21st 2004

The government's brazen interference in the administration of justice assumed more disturbing levels during the week and can only serve to further undermine the independence of the judiciary.

This was reflected in the manner the authorities, through the media they control, mirrored twisted images of the law by substituting sound legal opinion with politically motivated ones in cases involving the arrest and detention of about 70 alleged mercenaries and those found foul under President Mugabe's anti-graft laws.

Nothing illustrated this more than the venomous attack on Harare magistrate Judith Tsamba by faceless "government" and "legal fraternity" sources following her ruling that the arrest and continued detention of businessman James Makamba, accused of externalising billions of dollars in local and foreign currency, was illegal, The Herald (18/3).

In her judgment, also carried on SW Radio Africa (17/3), ZTV (17/3, 8pm) and Radio Zimbabwe (18/03,6am) and The Daily Mirror (18/3), Tsamba ruled that Makamba should have been arrested and brought to court after the issuing of a warrant of arrest.

In their reports all media revealed that Makamba's freedom was short- lived as he was immediately rearrested after the police sought a warrant for his incarceration on the same charges from another magistrate.

Instead of questioning the implications of such actions by the State on Makamba's constitutional right to seek protection from the courts of law, ZTV quoted faceless legal experts attacking Tsamba for releasing Makamba saying her ruling had "neither legal basis nor logic".

The Herald (18/3) was more rabid. It passively endorsed the hysterical response to Tsamba's ruling by some professed cowardly analysts who used anonymity to spuriously attack the integrity of the judiciary. For example, it did not question its faceless "highly placed sources" in the legal fraternity to clarify how Tsamba's "ruling was totally unacceptable, preposterous, had no precedent and would make the administration of justice in the country a laughing stock".

Neither did it take to task its "highly placed government source" to verify his unauthentic allegations that the ruling "was an attack on the country's national security and an attempt by misguided elements in the judiciary to bring down law and order."

Rather, the paper unashamedly provided the government source, whose professional standing was undisclosed, with the platform to interfere and issue instructions to the judiciary on what it can and cannot do.

The Herald quoted him: "The courts do not have the capacity and will never have the capacity to say each one of the police officers in the country must first obtain an arrest warrant before they arrest anyone. The requirement of an arrest is reasonable suspicion."

The private media however, duly exposed such government machinations. Both The Daily Mirror and the Zimbabwe Independent (19/3), for example, reported on a statement by the Zimbabwe Lawyers for Human Rights (ZLHR) condemning government's use of its media, especially The Herald, "as instruments to attack members of the judiciary who make rulings that are unfavourable to government" because this did not augur well for the proper administration of justice.

ZLHR also castigated the authorities' continued disregard of court orders as underscored by the Makamba issue and that of Philip Chiyangwa where the executive defied Justice Bhunu's order for his immediate release.

Said ZLHR: "Such blatant defiance and disregard of court orders undermines the administration of justice and goes to the root of the independence of the judiciary. Such conduct seriously erodes the public's confidence in the courts and has grave consequences for the rule of law."

The government media did not carry the ZLHR's concerns. Instead, The Herald and Chronicle (18/3) were more interested in presenting police justification for keeping Makamba locked up at the expense of looking at the adverse effects such a move would have on the fair and impartial delivery of justice.

This partisan reporting resulted in the papers falsely alleging in the same stories that Makamba had been "ditched" by his lawyers, when in fact it was the Telecel boss who had actually fired his original legal team, as The Zimbabwe Independent later revealed.

Such blatant interference in the administration of justice by government, with the aid of its media, was not an isolated case. The authorities likewise used the government-controlled media to undermine and ridicule the authority of the Attorney-General's office.

This followed revelations by acting A-G Bharat Patel in The Standard (14/3) that the country had no legislation specifically dealing with mercenary activities to charge the alleged coup plotters and therefore would be unable to fulfil the intemperate threat from Foreign Affairs Minister Stan Mudenge that the suspects would "face the severest punishment.including capital punishment" if convicted.

Rather than seek clarification from Patel himself, The Herald roped in government lawyer Johannes Tomana to challenge the AG's counsel. While its story gave the impression there were several laws, including the Foreign Subversive Organisations Act, to charge the "mercenaries", the report failed to explain how those laws could be used effectively against the suspects.

Moreover, while repeatedly giving the impression that several legal experts shared Tomana's views, the story failed to name any of the lawyers who concurred.

Despite its vehement denunciation of The Standard's story, the paper inadvertently admitted to the shortcomings of Zimbabwe's legislation in dealing with mercenary related activities when it quoted nameless lawyers hinting that the President could still use his presidential powers to suspend legislation and mete out the desired punishment against the alleged mercenaries if found guilty.

It reported: "Lawyers said the penalty could be reviewed in terms of presidential powers to cover an area, which the state may deem necessary in the execution of justice." However, The Zimbabwe Independent warned against the disastrous effects such presidential decrees would have on the independence of the judiciary: "So whatever the law may say (it) can be easily over- ridden by yet another presidential decree!"

ZTV (15/03, 6pm) quoted two lawyers Freddy Gijima and Albert Nyikadzino echoing Tomana's claims that Zimbabwe did have laws to deal with the suspected mercenaries but didn't identify them. Interestingly, the next day The Herald did eventually quote Patel dismissing Tomana's suggestions that the State could use the Foreign Subversive Organisations Act. Patel said the Act "has no present application nor can it be extended retrospectively to conduct which has already occurred . As for the rules of international custom, although they may be part of our law, I am not aware of any customary rule that could be properly invoked in the present case".

SW Radio Africa (18/03) carried a similar report.

But ZBC (ZTV, 16/03, 8pm, Power FM and Radio Zimbabwe, 17/03, 6am) would not budge in its attack of the AG's office. It claimed that "legal experts" were furious over attempts by the AG's office to downplay the gravity of the charges being faced by the suspected mercenaries. In addition, the unnamed legal experts were reportedly outraged by Patel's attempts to inform the public and described such conduct as unprofessional.

Notably, ZBC was silent on Tomana's comments, which clearly undermined the office of the AG.

Despite the evident limitations of Zimbabwe's legislation, the government media would still not categorically admit to this, even when the authorities were still apparently searching for suitable alternatives (The Herald and Chronicle, 17/3).

Meanwhile, the government media continued to remain silent on the mysterious role of the Zimbabwe Defence Industries (ZDI) and the neighbouring countries such as Angola and South Africa in the capture of the suspected mercenaries.

At least The Zimbabwe Independent and SW Radio Africa (15/03) attempted to penetrate this cloak of secrecy. SW Radio Africa, for example, quoted the suspects' lawyer, Jonathan Samkange, saying group leader Simon Mann "paid US$180 000 and the money was received and receipted. If it was unlawful then they should not have accepted the money and the contract was by the managing director assisted by other officials in the ZDI and if it was unlawful they too should be arrested. The seller and the buyer should all be arrested."

The government media ignored this possibility.

Instead, they strove to give the impression that Equatorial Guinea was grateful to Zimbabwe for having helped stave off a coup (The Herald (20/3): AU hails Zimbabwe for thwarting planned invasion). However, the Independent belied this when it observed: "We note President Teodoro Obiang Nguema of Equatorial Guinea thanked South Africa and Angola for their help in heading off this alleged coup attempt. But he made no mention of Zimbabwe's role."

The Sunday Mail (21/3) tried to divert attention from what The Independent described as the ZDI's "potentially embarrassing" role in the mercenaries saga by turning on South Africa, accusing the country of operating as "a springboard for terrorists". Said the paper: ".we feel South Africa must start asking itself a lot of questions about its role in dealing with .these terrorists."

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