International Editor of the Year Award

Mocking the Law

Iden Wetherell, Zimbabwe Independent (opposition weekly), Harare, Zimbabwe, Aug. 2, 2002

Of all the public comments by ZANU-PF (Zimbabwe African National Union Patriotic Front) leaders over recent years that have damaged international confidence in Zimbabwe, few could have been more calculated to harm this country’s standing than President Robert Mugabe’s declaration last Thursday that government will defy court judgments it does not like.

Speaking at a reception for members of Parliament (MPs) to mark the opening of the new session of parliament, Mugabe said government would not obey judgments it regarded as “subjective.”

“We will respect judges where the judgments are true judgments,” he said. He was referring of course to the case where Justice Minister Patrick Chinamasa has been convicted of contempt of court by Justice Fergus Blackie. A judge who “sits alone in his house and says ‘this one is guilty of contempt,’ that judgment should never be obeyed,” Mugabe declared to the assembled guests.

With this statement the president has effectively declared Zimbabwe a country where the rule of law will not be respected by its rulers—unless it suits them. Most of us know this to be the case already. Zimbabwe has been moving steadily toward this state of affairs over the past two years. Most notably, judges have been forced out of office by threats from ministers and war veterans to be replaced by individuals touted as supportive of the government’s political agenda. Members of the ruling party have committed murder and other crimes with impunity. And few would now regard the courts as reliable guarantors of their rights.

But the one thing South Africans have achieved in their quiet diplomacy since April 2000 was to impress upon this regime the negative effect of hearing its leaders repudiate their own laws on land acquisition. The upshot was a series of laws that enabled the government to do very much as it pleased. But thus armed, Mugabe was dissuaded from making any more of the remarks he made in 1993 saying essentially he didn’t give a damn what the law said, he would take the land anyway.

Now he has returned to his old form. He will only respect “true” judgments. Clearly, it will be left to him to determine which judgments he regards as “true.”

This of course makes a mockery of the law. The essence of a separation of powers and constitutional governance is that the courts determine where the executive has abridged laid-down rights. The president and his ministers are not disinterested parties. They cannot therefore pick and choose which judgments they will accept. Judgments are binding upon all if justice is to prevail. Otherwise the powerful in the land can do what they like.

A Form IV pupil could master this logic. But not apparently Mugabe and his delinquent followers, several of whom claim to be lawyers. Their self-interested reasoning flies in the face of all international standards of governance. And then they wonder why they have been ostracized by the international community.

This latest move will simply strengthen the hand of those countries urging further sanctions against Zimbabwe’s leadership. We saw last week how Deputy Foreign Affairs Minister Abedinico Ncube’s reported remarks advertising ZANU-PF’s food-aid manipulation were seized upon by British Foreign Secretary Jack Straw. Mugabe’s shocking comments are likely to elicit an even firmer response. Here is a leader who publicly declares his contempt for the rule of law either because it is inconvenient to the state’s agenda or because a powerful minister is affected.

[Information Minister] Jonathan Moyo has criticized Blackie for holding “night courts,” suggesting there was something irregular about rulings given after close of business. As the Law Society pointed out at the time, there is nothing irregular about court orders being made outside normal working hours. An urgent application should be submitted to a judge immediately if applicants are to avoid being prejudiced. An application made to prevent a search warrant, for instance, obviously cannot wait until the next day. Judges sitting to hear such applications are acting in the best interests of justice, and a duty judge roster ensures a judge is always available to hear such applications at any hour.

A current criticism of the judiciary is that magistrates and judges in some cases prejudice applicants by indulging police claims that are patently inadequate in terms of evidence or are politically motivated. Individuals have been detained on the flimsiest charges that subsequently proved insupportable in court—or indeed have been dropped before plea. In some cases magistrates or judges have leant over backward to entertain police charges or have given the attorney-general’s office extra time to substantiate the charges—often in vain.

The independence of the judiciary has already been compromised by accommodations of this sort where the rights of citizens to their liberty have not been respected. Mugabe’s remarks to MPs—providing legislators with a poor example of leadership—will feed a damaging perception that where judges do their duty in upholding the rights of individuals or holding the over-mighty to account, they are likely to be ignored. They will also deter judicial activism that is sorely lacking in today’s repressive national climate.

When the consequences of Mugabe’s irresponsible remarks make themselves felt over the next few days and weeks, please don’t let’s hear any bleatings from ministers and their media that Zimbabwe is getting an unfair hearing abroad or that the president is being “demonized.”

In his Independence Day speech in April 1980 Mugabe said: “Only a government that submits itself to the rule of law has any moral right to demand of its citizens obedience to the rule of law.”

He needs reminding of that.

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