Criminal justice: Robert Mugabe's clownish and sinister manipulation of the law

Will the judges be capable of standing up to the state? They will need to resist the pressure and prejudice whipped up by the Herald and its mentor, the minister of information, 'Professor' Jonathan Moyo, who has become the Goebbels of the Mugabe government. It is being said that two Supreme Court judges have accepted confiscated farms, on leases which can be terminated at the government's pleasure; if true, their bias would be flagrant. But establishing it in other cases will require careful analysis of court proceedings and the reasoning of judicial decisions, by an objective body like the International Bar Association or experts sent by the Commonwealth Secretariat.

Harare, Zimbabwe - Harare Magistrates' Court, a panopticon-style building on Rotten Row, is more surreal than Dickensian. Around its portals float young black women shimmering in white bridal regalia, there for civil-marriage ceremonies, mingling with the muggers, buggers and schoolboy shoplifters over whom it has criminal jurisdiction. It is not immediately clear whether the journalists and lawyers entering its doors are to take a place on the court benches, or in the dock.

This week Andrew Meldrum of the Guardian and Lloyd Mudiwa of the independent local Daily News are on trial, accused in separate proceedings of the novel crime of 'abuse of journalistic privilege' by publishing a story which subsequently turned out (so the prosecution says) to be false. If convicted, they may not only be jailed for up to two years, but will also certainly be denied a licence to practise journalism under Zimbabwe's new media law, which makes the right to write conditional on approval from the minister of information.

The journalists charged with abusing the 'privilege' of free speech (ten so far) have all published stories discomfiting to the Mugabe government. The rich irony is that the biggest lie ever told in the country has for the past fortnight featured on the front page of the government's own newspaper, the Daily Herald.

This falsehood concerns the existence of a plot by the British high commissioner and the president of the Zimbabwe Law Society to foment an insurrection, beginning with mass protests by opposition supporters as a cover for British armed forces (some already in the country under disguise) to invade, pursuant to a plan codenamed 'Operation Milosevic'. The full absurdity of this journalism (usually based on 'government sources' but sometimes endorsed by named senior policemen) can only be appreciated by reading the Herald, as it unveils 'evidence that the British high commissioner Brian Donnelly would be commanding the operation from high-tech mobile communication centres to be deployed throughout the country' (12 June) and that 'Mr Donnelly was sent to Zimbabwe to execute a Milosevic-type of operation to oust President Mugabe from power' ('Donnelly Under Surveillance', front page, 15 June).

It is difficult for British diplomats to answer this racist rubbish: they have established a rapid rebuttal unit in the youthful shape of Ms Sophie Honey, whose name adorns the letters from the High Commission which the Herald sometimes condescends to publish. They are keeping a low profile, but at least the immunities of the Vienna Convention render them safe from arrest. Not so the courageous president of the Law Society, Sternford Moyo, and its secretary, Wilbert Mapombere, who have been made the local scapegoats for hatred of the British government, partners in their alleged crime of subversion.

Both men were arrested by police on 3 June and held in jail for several days while their homes and the offices of the Law Society were ransacked for evidence of offences under the 'Public Order and Security Act 2002' - another draconian new law, section five of which punishes with up to 20 years' imprisonment any threat to organise civil disobedience. No evidence was found, but the police have produced a short letter on Law Society notepaper, addressed simply to 'The British High Commission, 6th floor, Corner House, Harare', on which they have based the subversion charges. It reads, precisely, as follows:

Further to our communications, we suggest that from now onwards our communications should be in writing and by hand post straight to the receiver.

We are grateful for the support you have given us in order to restore the rule of law in Zimbabwe. At the moment as a Law Society we are embarking on a vigorous campaign to conscientise the populace to rebel against the unlawful and illegitimate rule of Mugabe. We have consulted with the MDC and urged them to abort the useless talks so that a proper confrontation will be viable.

In the long history of fabricated evidence for treason charges, this stands as one of the more inept examples, with its bad grammar and use of what a secret policeman might imagine to be legal jargon ('conscientise the populace'; 'confrontation will be viable'). It is perfunctorily addressed to the British High Commission, as if intended to lie in an in-tray until directed by a secretary to the diplomat in charge of the counter-revolution. Nevertheless, this is the evidence upon which the men will be put on trial and on which the Mugabe government, through its propagandists in the Daily Herald, accuse Mr Blair of attempting its overthrow.

The fate of the country's leading lawyers and journalists rests in the fragile hands of its judiciary, who will be called upon in these and other cases over the next few months to strike down the laws under which they have been charged as being contrary to Zimbabwe's constitutional guarantees for freedom of expression and assembly. Although some magistrates have shown notable independence by convicting war veterans at the risk of reprisals from their supporters, a shadow hangs over recent Zanu-PF appointees to the High and Supreme Courts.

For example, the judge president of the High Court, Paddington Garwe, who denied habeas corpus to the Law Society officials (on the sole ground that the letter reproduced above provides reasonable suspicion of their guilt) was formerly permanent secretary of the ministry of justice. The lawyers who packed into his courtroom for the hearing spontaneously signalled their contempt for his decision by refusing to stand as he made his exit.

But, from an international perspective, judging judges is not an easy matter. Their backgrounds and the politics behind their appointment are not definitive: there are many examples of jurists whose independence has confounded the expectations of the government that put them in place. Corrupt judges often masquerade as civil libertarians, the better to give bail or dismiss charges relating to members of the drug cartel paying them. The judge who is a government lickspittle will, in Commonwealth countries, often dress up his decisions in pious quotes from Lord Denning's later years, about civil liberties being subordinate to the demands of national security. Lawyers can usually find arguments that are respectable, if only in legal terms, for abuses of state power: they are doing so in Zimbabwe to justify the expropriation of white farms and the legitimacy of the recent elections.

But no judge, however predisposed to favour the Mugabe regime, could honestly find that the new laws under which the journalists are being prosecuted square with Zimbabwe's constitutional guarantees, or could convict the Law Society officials on the strength of the letter they swear they did not write - even if they did. These cases will provide an acid test of judicial independence, because international courts have consistently condemned the licensing of journalists, and a few years ago the Privy Council, the Commonwealth's highest court, struck down an identical law against 'publishing falsehoods' when the government of Antigua sought to deploy it.

It is regrettable, therefore, that no international observers have thus far attended the Meldrum proceedings. Unless these trials and constitutional challenges are carefully monitored, President Mugabe's judges will be let off the hook. The prospects of them doing justice may well depend on the extent to which they themselves are put on trial.

Geoffrey Robertson, QC, is the author of Crimes Against Humanity, the second edition of which is published next week by Penguin (£10.99).

Mugabe Versus the Internet-reporter's trial could undermine Zimbabwe's view of national sovereignty*** Courts throughout the world are grappling with the legal consequences of publication on the ubiquitous and directionless web. For example, Australia's high court is deciding whether it has jurisdiction in civil defamation over a Wall Street Journal website in New Jersey. But the Meldrum case is the first to assert local criminal jurisdiction over foreign web postings. Countries with more barbaric laws against seditious writing (Iran and Libya, for example) would doubtless welcome a precedent.

This prosecution may prove an "own goal" for Robert Mugabe. He claims that his laws, however repugnant to other countries, are of concern only to Zimbabwe: they provide no warrant for the international community to interfere in his internal affairs. But by giving these laws extraterritorial effect, asserting jurisdiction over web publishers wherever they may be located, his laws are attacking freedom of speech abroad as well as at home. Even on his own outdated theory of national sovereignty, this would entitle other countries to take action against Zimbabwe to protect the freedom of speech of their own citizens.

These new media laws are blatant infringements of the country's constitutional guarantee of freedom of expression: the acid test of the country's judiciary will be whether, in subsequent proceedings, it has the independence to say so.***

Interesting tactics.

Meldrum is being tried in Magistrate's Court which will mean that he can only be fined, not imprisoned.

This downplays the trial internationally.

Nothing would get international attention like a news reporter imprisoned, but risk of a fine is pretty uninteresting.

Note that the foreign diplomatic corps does not seem to be maintaining a watch on this trial.

But the trial will have its exemplary effect on all reporters, foreign and domestic.

It will cause them to censor themselves.

The real targets will be the domestic Daily News, Zimbabwe Independent, Zimbabwe Standard and Financial Post.

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