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The
lawyer consciousness
Marshal N. Mapondera
August 04, 2010
"All
the world's a stage, and all the men and women merely players;
they have their exits and their entrances, and one man in his
time plays many parts"
(William Shakespeare (1564-1616)-As You Like it (Twelfth
Night) Act II Scene VII; 1599)
These were the
wise words of William Shakespeare that have survived five centuries
in value and veracity. We all have important positions of responsibility
on this planet. We are forever under scrutiny whether we are aware
of it or not, whether we have planned it or not, the community is
watching, for each of us is an actor with a part to play, with a
chance to prove ourselves whilst in office. This community that
has grown into a global village has since the 17th of July 1998
created a global criminal justice system through the Rome Statue
which establishes the International Criminal Court (ICC) at The
Hague, Holland. Fully operational since July 2002, the court has
been assertive in realising the global dream to end impunity. It
is uncompromising as it champions the rights of the voiceless against
the perpetrators of international crimes traditionally perceived
as the 'untouchables -of society, the political leaders
and military officers. Sadly some of these are lawyers. When lawyers
team up to wreck a whole region, violating human rights for selfish
interests like former US President, George W. Bush and former UK
Prime Tony Blair; the legal profession is now the elite club of
villainy.
Lawyers play
an important role in world politics as policy makers and they are
duty bound to be exemplary in all their conduct as guardians of
civil rights and liberties. One of my lecturers once confided in
me that upon leaving law school, the world would expect much more
from me as a lawyer, than what I am actually trained for! This he
said was because lawyers, for some reason are thought to be capable
enough to handle anything and everything. The litigious layperson
is never hesitant to mouth off "Don-t talk to me, talk
my lawyer!" or "Just you wait! You-ll hear from
my lawyer!" even when the problem maybe moral or social and
better dealt with by other professionals.
My personal
observation reveals that this may be because of the important public
roles that lawyers have played right throughout history. Nationalist
leaders like Nelson Mandela, Robert Mugabe, Herbert Chitepo, Ambassador
Justice Simbi Mubako and Dr. Edison Zvobgo were lawyers. Many world
leaders are lawyers by profession, for instance Barrack and Michelle
Obama, Thabo Mbeki, George W. Bush, Bill and Hilary Clinton, Tony
Blair; Nicholas Sarkozy, Levy Mwanawasa, the list is endless. It
becomes no surprise therefore that the current Zimbabwean political
scene has a respectable number of lawyers at play, like Tendai Biti,
Advocate Eric Matinenga, David Coltart, Patrick Chinamasa, and Professor
Welshman Ncube.
My take on our
profession is that the lawyer is a solution provider, period. Whether
it is in litigation, legal drafting or policy making, we are expected
to ensure justice and equity for those we represent. Either side
of the coin is engraved with Rights or Obligations that we ought
to balance to ensure justice. Civil rights become top priority for
any legal professional whether he is a prosecutor, magistrate, judge,
advocate, attorney, company secretary, policy maker or law professor.
We cannot flip the coin in legal duels to gamble with people-s
rights, moreso where human rights are concerned, be they civil,
political, or socio-economic rights. We cannot manoeuvre legal principles
for personal gain, where we should not have an interest.
The Rome statute
criminalises genocide, crimes against humanity, crimes of war and
crimes of aggression. It has temporal jurisdiction as it criminalises
actions after July 2002, when it came into force. Pursuant to the
statue, the Prosecutor, can initiate an investigation on the basis
of a referral from any state party (Chapter VII of the Charter)
or from the UN Security Council. In addition the Prosecutor can
initiate ine proprio motu (of his own volition) on the basis of
information on crimes within the jurisdiction of the court received
from individuals or civic organisations.
The ICC Prosecution
has had only voluntary referrals from three African States; Uganda,
the DRC and the Central African Republic with the addition of the
Security Council referral of the situation in Darfur, Sudan. In
Uganda for instance, there is the case of The Prosecutor v Joseph
Kony, Vincent Otti, Okot Odiambo and Dominic Ongwen four suspects
of the Lord-s Resistance Army (LRA) (still at large) before
the court, while the DRC has amongst three, The Prosecutor v Thomas
Lubanga Dyilo; the Central African Republic has The Prosecutor v
Jean Pierre Bemba Gombo; and the Sudan has The Prosecutor v Ahmah
Muhammad Hamn ("Ahmad Hamin") amongst three.
It is globally
agreed of course that the United States of America, the most powerful
nation on earth, has been on an antagonistic campaign against the
court. Its bilateral "immunity" agreements with other
nations (which it manipulates) based on its legislation, "The
American Service Members Protection Act (ASPA)" dubbed "The
Hague invasion Act" allow it to escape the prosecution of
its nationals so that it can 'prosecute- them on its
own. It hides behind the complementary nature of the Rome Statute.
Whether or not it actually prosecutes them is their word against
the whole world, what is only certain is that victims of their crimes
may not see justice done.
Incumbent US
President Barrack Obama has seemingly brought a totally different
attitude towards the court, however. On 5February 2009, he publicly
endorsed support for the court. The writer sees this as part of
a global change in attitude that international crimes are a global
concern and coming from a lawyer it should mean that much. The ICC
is not a court "against the poorest" southern states
but a court against perpetrators of all forms of crimes against
the human person. It is not a tool of colonisation, for impunity,
tribalism, discrimination and greed existed long before then while
corruption and tyranny have become the identity independent Africa
without any help from the North. Even if America does not support
the ICC and escapes its clutches, we cannot use that as an excuse
to be found in violation of human rights against our own people
as lawyers.
It may be submitted
at this juncture that eight years down, notwithstanding the African
Union and the League of Arab States questioning the legitimacy of
the Rome Statue, it seems more African States are buying into the
idea of an international criminal court for the entire world to
end impunity. The Republic of South Africa leads by example as it
becomes the first African State to fully integrate the Rome Statute
in its domestic legislation, while the DRC, Uganda, Ghana, Benin,
Lesotho and Senegal follow suit. Zimbabwe however is yet to ratify
the statute. This should not give us any reason to act with impunity
as we too lack in resources and legitimate policy as well as sufficient
judicial independence to deal with perpetrators.
Zimbabwe
Lawyers for Human Rights (ZLHR) Board Chairperson, award winning
Andrew Makoni, recently stated that;
"The
society we live in is till not the best place to be. It-s
unstable, uncertain and unjust . . . Human Rights continue to
be violated with impunity. The perpetrators who are known are
unaccountable and continue to confidently roam the streets realising
that they are untouchables. "
Mr Makoni could
not have been more accurate in his observation of current events.
A different era seems imminent, when what was once acceptable policy
would be unmasked for the heinous crime that it is. When allowing
unruly civil violence in violation of ubuntu as 'xenophobia-,
or property deprivation and bulldozing of homes during winter as
'government policy-, will fit neatly in a little paragraph
in the Rome Statute labelled International Financial Crimes against
Humanity. The abolition of apartheid and the creation of a people
driven constitution in South Africa is a good example, having been
spearheaded by one man, an outstanding lawyer. Nelson Mandela was
convicted in 1962 for engaging illegally in the struggle against
apartheid and incarated for 27 years on Robben Island. Before sentencing
he made his famous speech from the dock where he explained why he
defied the same laws he once swore allegiance to as a lawyer and
inciting others to do the same. He said;
"Your
Worship, I would say that the whole life of any thinking African
in this country drives continuously to a conflict between his conscience
on the one hand and the law on the other. This is not a conflict
peculiar to this country. The conflict arises for men of conscience,
for men who think and feel deeply in every country. Recently in
Britain, a peer of the realm, Ear Russell, probably the most respected
philosopher of the Western world was sentenced, convicted for precisely
the type of activities for which I stand before you today, for following
his conscience in defiance of the law. For him, his duty to the
public, his belief in morality of the essential rightness of the
cause for which he stood, rose superior to his high respect for
the law. He could do no other than oppose the law and suffer the
consequences for it. Nor can I . . . Nor can many Africans in this
country. "
Mandela, once
a villain is now a hero because he followed his 'lawyer consciousness-.
A time comes when some current 'heroes- will become
villains. It is only fair dear colleagues that we caution each other
now and challenge one other to stand for what is right be it in
defiance of current repressive, unjust laws even in the face of
persecution . For one day when facing the International Prosecutor
representing thousands if not millions of sufferers and countless
more voiceless dead victims unable to testify, a careless response
like; "Well, it seemed right at the time, your Honour."
would simply be aggravating!
".
. .a black beard will turn white, a curled pate will grow bald,
a fair face will wither, a full eye will wax hollow. But a good
heart . . . is the sun and moon. . . for it shines bright and
never changes, but keeps its course truly." William Shakespeare
(1598) Henry V, Act 3 Scene 1
* Marshal
Mapondera can be reached at marshal@mail2consultant.com
with comments
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