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New AG should protect basic rights
Beatrice Mtetwa
January 07, 2005

http://www.theindependent.co.zw/news/2005/January/Friday7/1374.html

THE appointment of Sobusa Gula-Ndebele as the principal legal advisor to the government of Zimbabwe has been welcomed with great expectations not only by the legal profession in Zimbabwe, but also by all law-abiding and fair-minded citizens who would like basic rights enshrined in the Bill of Rights respected.

It is the hope of all law-abiding citizens that our brand new Attorney-General (AG) will seek to restore Zimbabwe to that league of African nations that have been pioneers in the protection of basic rights such as the right to full protection of the law regardless of one’s political beliefs, the right not to be deprived of personal liberty outside provisions of the law, the right to the freedoms of conscience, expression, movement, assembly, association and the right not to be discriminated against on any grounds.

The new AG has been appointed the government’s principal legal advisor at a time when the rule of law and the general administration of justice is at an all time low with virtually every aspect of the Zimbabwean legal system having broken down to some extent. Although much has been written about the breakdown of the rule of law in Zimbabwe, the AG has, for reasons that are difficult to understand, largely escaped criticism as a contributor to such breakdown. This is despite the fact that the AG wields considerable constitutional clout, particularly in criminal prosecutions and the rendering of legal advice to the government of Zimbabwe.

The office of the AG is a constitutional creation just like that of the judiciary. Like judges upon appointment, the AG has to take the oath of loyalty to "be faithful and bear true allegiance to Zimbabwe and observe the laws of Zimbabwe". It is hoped that our new AG will at all times seek to be guided by the oath of loyalty which obliges him to bear allegiance to the country and its laws, and not to individuals and politicians. The constitution is the supreme law of Zimbabwe, and in theory overrides all other laws that are inconsistent with its provisions. It is hoped that Gula-Ndebele will at all times seek to uphold all provisions of the constitution, particularly the fundamental rights enshrined in the Declaration of Rights.

In terms of Section 76(4) of the constitution, the AG has the sole and exclusive power "to institute and undertake criminal proceedings before any court, to take over and continue criminal proceedings, to discontinue at any stage before judgement is delivered any criminal proceedings he has instituted". The AG also has the power to require the commissioner of police to conduct certain investigations and to report to him on any matter in which the AG believes might constitute a criminal offence or suspected criminal conduct and the constitution obliges the commissioner of police to "…comply with that requirement". In the exercise of these powers, the constitution makes it clear that the AG "…shall not be subject to the direction or control of any person or authority".

From these provisions from the supreme law of the land, there can be no doubt that the AG wields considerable independent power that should not be interfered with by anybody. Yet we have witnessed in the past four to five years, an unprecedented assault on the individual freedoms provided for in the Declaration of Rights. We have not, in the past five or so years, heard of any AG who has refused to approve repressive legislation that is inconsistent with provisions of the Declaration of Rights. Instead, we have seen the AG’s office mounting spirited defences to legislation that clearly offends against the most basic rights in the constitution.

In the past four to five years, we have not seen the AG declining to prosecute hopeless criminal cases such as the treason charges against Morgan Tsvangirai, the spurious charges against Kumbirai Kangai and his then permanent secretary, the long incarceration and subsequent prosecution of those falsely accused in the Cain Nkala murder case, the persecution and prosecution of the Daily News and its directors, and a host of other cases that could not pass even the first hurdle before a judiciary that has been forced to deal with cases that ought not to have been brought before the courts in the first place.

We are currently witnessing the prosecution of those allegedly involved in so-called spying activities and yet the AG does not appear concerned that the suspects were held incommunicado for periods in excess of those provided for by law before being brought before the courts. Instead, the war cry from the AG’s office and those law officers that appear on his behalf has generally been a chorus of "we shall appeal against this decision", "we are studying the decision and are considering an appeal", in circumstances where a professional AG’s office should go back to the drawing board in an endeavour to avoid future similar embarrassing prosecutions. These are evidently embarked upon with the hope that the judicial officer will understand the political context of the case and will therefore accordingly convict in the assurance that an appeal cannot possibly succeed given the general belief that the Supreme Court is sympathetic to the executive.

Given the very clear and unambiguous constitutional powers given to the AG, it is surprising that his office has largely escaped criticism in the erosion of the rule of law. In terms of the constitution, no prosecution can take place unless the AG or his representative is satisfied that there is a lawful basis for such prosecution. The AG is obliged by law to embark on a prosecution for no other reason than that he or his representative is satisfied that on the facts presented to him, there is a prima facie case justifying a prosecution.

One would think that this basic and simple legal principle should present no problems to those highly educated and experienced officers in the AG’s office. Regrettably, the reality on the ground is that the majority of so-called high-profile or politically motivated prosecutions are embarked upon in complete disregard of the AG’s powers as set out in the constitution.

Suspects are routinely placed on remand on the flimsiest of grounds and officers in the AG’s office routinely oppose the release of suspects on bail.

The reasons for such opposition sometimes include such inane grounds as police opposition to suspects being released on bail. This is despite the fact that the AG is constitutionally bound to exercise his prosecutorial powers without direction or control of the police, politicians or any other party.

Why, therefore, has the AG escaped criticism in the erosion of the rule of law? Why have judges and other judicial officers taken the flak in circumstances where cases that were brought before them ought not to have been brought in the first instance? Why have judges and magistrates been fodder for columnists in the state media when they do what every respectable court would do by acquitting persons who ought not to have been prosecuted in the first place? And why have persons who have suffered malicious and politically motivated prosecutions where there clearly was no evidence not sued the AG? After all, there is precedent for such legal suit made way back in 1989.

Why are judges and magistrates who are forced to sit through mountains of irrelevant evidence in the politically motivated prosecutions made to carry the can when they acquit and discharge accused persons who should never have been arrested in the first place, let alone prosecuted? Why do such columnists not attack the AG for embarking on hopeless prosecutions in the first instance?

While I cannot speak for the columnists in the public media, I can safely state without apology that the AG’s office has been more than complicit in the breakdown of the rule of law in Zimbabwe. Law officers have been happy to take instructions from politically connected individuals, from members of the Zimbabwe Republic Police, and from other senior personnel in other organisations such as the Reserve Bank of Zimbabwe with complete disregard of the constitutional provision that the AG shall not be subject to the direction or control of any person or authority. Where prosecutions have taken place and suspects are properly acquitted, it has become common that the AG’s office pronounces that an appeal will be lodged.

Demands that the law officer or prosecutor who would have conducted the prosecution write a report of such acquittal in order to explain to politicians why the acquittal would have occurred in the first instance are now normal occurrences. It is such reports that then incite columnists in the public media to unfairly blame the judicial officer who would have heard the case.

In short, the last four or so years have seen the AG surrender wholesale the constitutionally protected powers that he has. He has given these to the police, politicians, and a host of other bodies that are seen to hold political clout. Whilst one might understand the actions of an acting incumbent whose substantive appointment depends on "toeing the line", the appointment of Gula-Ndebele should serve as a lesson that "toeing the line" does not always produce the desired result. It is the hope of all right thinking and law-abiding Zimbabweans that our new AG will at all times "be faithful and bear true allegiance to Zimbabwe and observe the laws of Zimbabwe".

It is hoped that the observance of the laws of Zimbabwe will be consistent with the basic provisions of the Declaration of Rights as enshrined in our constitution and all other international and regional treaties, declarations, etc, signed by our government. And it is hoped that bearing true allegiance to Zimbabwe will not mean blind allegiance to individual interests and that it will mean bearing allegiance to all the peoples of Zimbabwe regardless of their political, social, economic, racial and educational status. It is also hoped that the new AG will allow officers in his office to once again reclaim the professional independence that any self-respecting lawyer should be allowed to have. Anything short of this will not restore the Zimbabwean judiciary to the glory that it once enjoyed from the early 80s to the year 2000.

*Beatrice Mtetwa is a Harare-based human rights lawyer.

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