Zimbabwe -- Zanu PF's waywardness now evident to all

TESTIMONY given to the visiting African Human Rights Commission delegates last week tells us - and the world at large - exactly how delinquent the Zanu PF regime has become. The delegates must have been appalled. Leading government spokesmen and their non-governmental allies made remarks which can at best be described as ignorant of basic democratic tenets and at worst crude threats.

President Mugabe set the tone by telling the delegates that he and his associates were the custodians of human rights won in the liberation war, not civil society.

Does he still think he can get away with dissembling of this sort? Despite hopes raised by the liberation struggle, his regime in 1980 was quick to retain instruments of oppression such as the emergency powers and Law and Order (Maintenance) Act. Political opponents, such as Dumiso Dabengwa, were locked up and denied the verdicts awarded them by the courts. Joshua Nkomo had to flee the country. Others disappeared without trace. Tens of thousands were killed in brutal counter-insurgency operations.

Mugabe and his followers were only persuaded to lift the state of emergency and stop abusing people's constitutional rights by the collapse of totalitarian allies in Eastern Europe, the emergence of new regimes in the region, and the need to court investors. However, the democratic opening of the 1990s barely survived the decade. When internal forces of change posed a serious electoral challenge in 2000, Zanu PF embarked upon a campaign of violent subjugation. The opposition, NGOs, and commercial farmers were all targeted for brutal suppression as Zanu PF's militias were licensed to kill, torture and destroy property, often aided and abetted by security forces. One senior CIO officer accused of killing opposition activists continues to operate in Chimanimani with impunity despite court requests that the AG investigate his role.

Zanu PF luminaries are evidently not ashamed of this record of extra-legal abuse of power. Speaker of parliament Emmerson Mnangagwa was reported in the official press to have told the visiting delegation that what happened to Standard journalists Mark Chavunduka and Ray Choto, who were in 1999 abducted and tortured by the army in an act the Defence minister later conceded in court was wrong, would happen again.

"What happened to them when they falsely wrote that the army was planning a coup would happen to them again if they repeat that because nobody is above the law," Mnangagwa was reported to have said.

What law is he talking about? The section of the Law and Order (Maintenance) Act under which they were charged was struck down as incompatible with rights accorded by the constitution. The charges against them fell away. So here we have a former Minister of Justice saying journalists would be subjected to the same unlawful abuse if they displeased the army. A court-ordered investigation of the army's role in the abduction of the two has since been thwarted.

Mnangagwa's claim that Zimbabwe does not have stringent laws on the press, "but journalists have been arrested for telling lies" also needs to be challenged lest the visiting delegates left with the wrong impression. Journalists have been arrested because the government claims they are telling lies. It is the opinion of a self-interested minister, not the finding of a court. Mnangagwa appears not to know the difference.

We should expect such ignorance and self-justification from Mugabe and Mnangagwa. But remarks attributed in the official media to Chief Justice Godfrey Chidyausiku, testifying before the delegates, reveal something altogether more disturbing.

Chidyausiku was reported to have said that problems in the judiciary started after Chief Justice Anthony Gubbay publicly stated that he would not support the government's land reform programme if commercial farmers were not compensated. The statement aroused the opposition of the then Attorney- General Patrick Chinamasa, we are told.

Since then white judges took sides with the commercial farmers, Chidyausiku is reported to have said. Politicians regarded land redistribution as a form of social justice, and not a legal problem, he claimed. At the end of the day politicians and the judiciary have to find common ground.

Do they? Should judges find common ground with politicians responsible for directing violence against their opponents or riding roughshod over the law? And why does he think that because the Attorney-General opposed a statement by the then Chief Justice it should be of any consequence? The Attorney-General was a cabinet minister with his own agenda. The courts are there to protect individuals from overweening governments. Gubbay was guilty only of advising citizens of their rights under the law. In any case, as Chidyausiku knows full well, it was not just white judges who ruled in favour of the CFU and other applicants.

Remarks Chidyausiku went on to make about members of the Law Society being sympathetic to commercial farmers would appear to mirror those of the ruling party. And it would have been useful to hear which Supreme Court judgements he thought "questionable" and which "public" he thought had condemned them. Did he tell the visiting delegates that several of his own judgements were overturned on appeal?

What will the African Human Rights Commission make of all this? Judges who share the perspectives of an unpopular and thuggish ruling party; senior politicians who threaten journalists regardless of court verdicts; and a president who believes that he and his inner circle are the custodians of human rights, not the people he serves. At least Africa will now have a clearer picture of those whose waywardness it has hitherto politely overlooked.

IBA Report on Zimbabwe - Executive Summary

This is an executive summary of a report on the state of the judiciary and the rule of law in Zimbabwe. The report is of a Delegation of distinguished international judges and lawyers which visited Zimbabwe between March 12, 2001 and March 18, 2001. The Delegation held meetings in Zimbabwe with lawyers, judges, academics and government representatives, including President Robert Mugabe.

The fact finding mission was organized by the Human Rights Institute of the International Bar Association and was jointly funded by the Open Society Institute. The Delegation was sent in light of the growing international concern at the apparent erosion of the rule of law in Zimbabwe, as evidenced by reports of lawlessness in the country and intimidation of the judiciary. The purpose of the Delegation's visit to Zimbabwe was a fact finding mission "to examine

(i) the current status of lawyers and judges in Zimbabwe

(ii) the legal guarantees for the effective functioning of the justice system, including the independence of the judiciary and respect for the judiciary, and whether these guarantees are respected in practice;

(iii) the ability of lawyers to render their services freely; and

(iv) any impediment, either in law or practice, that jeopardizes the administration of justice."

At the heart of the crisis concerning the rule of law in Zimbabwe are the events of 2000 in which commercial farms were invaded by war veterans and others. It is accepted by Government that these occupations are unlawful. The Courts have made orders, to which the State has consented, to bring the occupations to an end. Yet the Government has refused to enforce the orders of Zimbabwe's own courts. The last elections were marked by serious violence. Violence continues in the country.

The findings of the Delegation are:

1.The Government's refusal to obey the Courts' orders is undermining the authority of the courts and encouraging a culture of lawlessness in Zimbabwe. The Delegation believes that land reform is urgently needed in Zimbabwe. However, this reform must be brought within the confines of the law. The notion that the laws and judgments of the courts of an independent Zimbabwe can be ignored because of the injustices of pre-independence days is dangerous and misguided. It is through the application of the law, amended in accordance with the sovereign wishes of the people, where necessary, that justice is obtained and not through the encouragement of anarchy and lawlessness.

2.The independence of the judiciary is being undermined by threats to and intimidation of the judges. Threatening and demeaning remarks and acts have been directed against the judiciary. No government action has been taken to stop or discourage people from intimidating members of the judiciary. Such governmental inaction is unacceptable. The Government has vigilantly to guard the judiciary against threats and intimidation. If a society permits its judges to be threatened and intimidated by violence, then it is only a matter of time before judges bow to the threats and intimidations.

3.The independence of the judiciary is also being undermined by the sustained campaign to force the resignation of a number of judges, including by threats of violence. This campaign has been fuelled and encouraged by the Government. A principal target of the campaign has been Chief Justice Gubbay, who has been forced into early retirement. This forced retirement of Chief Justice Gubbay and the pressure on other judges to resign violates the tenure of judicial appointments as guaranteed by the Constitution of Zimbabwe and in accordance with international standards.

4.Independence of the judiciary requires protection for the tenure of judicial appointments. Such protection is needed to combat the arbitrary wielding of power by government officials. As such, the Minister of Justice's role in forcing the resignation of Chief Justice Gubbay and in approaching and seeking the resignation of two other Supreme Court judges is wrong. Any attempt by a government official, especially by the Minister of Justice, to seek the resignation of a judge, whose decisions against the government are deemed to be unpalatable, is a serious breach of the independence of the judiciary.

5.An effective administration of justice requires legal service providers to be free of intimidation and violence as they carry out their duties and responsibilities. In some rural areas of Zimbabwe, legal service providers are subjected to physical assaults, threats and intimidations. The police in the rural areas are either unwilling or unable to prevent the assaults and intimidations that have been perpetuated against legal service providers in the rural areas. This unhindered attack on legal service providers is adversely affecting the administration of justice.

6.A professional association of lawyers, the Law Society, may be under increasing pressure to curtail its criticism of governmental actions with regard to the judiciary. The Law Society has been courageous and vociferous in supporting the judiciary and the rule of law. The Delegation earnestly hopes that the Government does not intend to pass legislative amendments that would put limits on the ability of lawyers to engage in public discussion regarding matters concerning the law and the administration of justice.

7.The prevalent perception in Zimbabwe is that selective prosecution based on political allegiance is taking place. If true, selective prosecution would be in violation of the constitutional and criminal laws of Zimbabwe. Selective prosecution would also contravene Zimbabwe's international obligations. Due to the pervasiveness of the allegations, we note here that Zimbabwe has a clear obligation to ensure that it administers justice so that all people in Zimbabwe are accorded equal protection of the law. Selective prosecution leads to a culture of impunity in which people believe that they will be able to commit criminal acts of violence and go unpunished so long as their political party is able to get elected. The Delegation is concerned that such a culture of impunity is growing in Zimbabwe.

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