By Otto Saki
THE recent acquittal of opposition Movement for Democratic Change president Morgan Tsvangirai of high treason charges has led certain quarters within the country and more significantly some part
s of the international community to believe that there is rule of law in Zimbabwe, and that the wheels of justice are intact.
This notion is misplaced in light of the current state of the country insofar as the administration of justice is concerned and in particular the upholding of the rule of law. For the benefit of some who might not have an appreciation of this concept, the rule of law in simple parlance does not mean the rule of men.
But in terms of the development of the theory it signifies the existence of a system of rules, where the judiciary is independent, judicial decisions are made according to legal standards rather than undirected considerations of fairness, the right to fair trial in which the due process of law or procedural safeguards are observed, access to courts, equality before the law, supremacy of the law which entails that no man is above the law, restrictions on the exercise of discretionary powers, and laws which are prospective and not retrospective.
But of the few mentioned above, an analysis of the extent of adherence to the same by the Zimbabwean government is laughable and the acquittal of Tsvangirai will never signify the existence of the rule of law or that the wheels of justice are still intact in Zimbabwe.
The supremacy of the law dictates that all individuals and the government are subject to the law and no one is above the law. In Zimbabwe this notion seems to be applicable to a certain class: while some are persistently subject to the law, others are thoroughly immune. There is no doubt that laws are being applied selectively to the extent that a certain class of people always find themselves in brushes with the “law”.
There should be a distinction between laws, executive administration and prerogative powers but this seems to be non-existent in our situation.
Individuals masquerading as administrative bodies have acquired enormous powers, which has ultimately undermined the effective observance of the rule of law, and have abused their “mandate”. This can be said of bodies such as the Media and Information Commission whose partiality and composition have been questioned in the Administrative Court.
There are no restrictions on the exercise of discretion by some ministries with regards to certain Acts of parliament such as the Ministry of Information with regards to the Access to Information and Protection of Privacy Act, and also the Ministry of Home Affairs and the police in enforcing the Public Order and Security Act.
The concept of justice has ceased to exist; the executive has usurped the role of the judiciary and the legislature on many counts and has taken it to be its mandate to make laws which are fundamentally flawed and gravely unconstitutional.
Instead of exercising what is termed commutative justice that aims at the correction of pre-existing rights, which seeks to give back what has been taken away with adequate compensation, we are now practising distributive justice. The latter aims at distributing wealth according to egalitarian schemes, creation of new rights in accordance with ideologies, prejudices or subjective opinions of individual bureaucrats or members of tribunals who make decisions, while powerful pressure and interest groups influence the making of those decisions.
In such instances the law is particularised and rendered uncertain thus undermining the foundations of justice and liberty.
When it comes to issues of access to justice in Zimbabwe and the rule of law one cannot avoid but make reference to the manner in which the judiciary is handling matters relating to fundamental rights, the inordinate delays in the handing down of decisions and further the nature of the decisions that are rendered.
The judiciary in Zimbabwe has of late been challenged in the dispensation of its mandate, whether it’s by design or not in particular with regards to disputes arising from human rights-related issues. The failure to guarantee access to speedy and effective redress of perceived violation of constitutional and human rights and the failure by the judiciary to pronounce heavily on the violations is more than just undermining the rule of law but a pointer to its non-existence.
Due to the non-availability of local remedies, citizens have to resort to international tribunals and courts and this illustrates the ineffectiveness of the judiciary in providing effective remedies, for where there is a right there should be a remedy.
Access to justice and the rule of law does not only entail filing a case with the courts and that’s it. Once the case is heard, there is a legitimate expectation that the court will address all issues arising and not dwell on procedural technicalities which are of no direct bearing on the case.
In our context, the Supreme Court has set a worrying pre-cedent of obeying any Act of parliament before challenging it. In this instance it has given the legislature unfettered powers of enacting all sorts of despicable Acts and a cushion to the legislature that they will not be challenged at least before the Act is obeyed.
Principles of the rule of law mandate the judiciary and the courts in particular to say what the law is and in terms of our constitution, to rule all laws that are contrary to the constitution null and void. The judiciary claims the ultimate capacity to decide what the law is.
Public confidence demands that the judiciary respect the rule of law, above all. So to say that there is rule of law and that the wheels of justice are intact because of the acquittal of Tsvangirai is misdirected for there is more to the rule of law than the acquittal of the leader of an opposition party.
After all, it is a trend in Zimbabwean politics that a leader of the opposition should be arraigned before the courts for high treason when the charges are minifestly spurious.
In an environment where the rule of law is observed, the state does not have to enact laws that operate retrospectively and criminalise acts which were not an offence when they were committed. More than often such laws destroy certainty and are vindictive and arbitrary.
The rule of law entails that the government in cases where the courts decide contrary to its notion of justice should obey the very same judgements and not refuse to enforce court orders. And when judges or magistrates decide against the government there is no reason why men wearing dark glasses should haunt and force them to flee the country.
There are many instances of the government failing to obey court orders on frivolous and unfounded notions of state security and interests – the recent deportation of the delegation from the Congress of South African Trade Unions speaks volumes about the rule of law in Zimbabwe. I wonder what those across the border will say on this issue.
The matter of Roy Bennett is tragic for those who have suggested that there is rule of law in Zimbabwe. A history of the case will show that Bennett had been subjected to all sorts of relentless attacks from the government. The courts had ruled on numerous occasions that the government should not proceed to acquire his estate. In an act of defiance they proceeded, in open contempt of the court orders.
Now that Bennett floored the minister responsible for the proper functioning of the courts, he has become a case study of retributive justice.
Further to their decision to incarcerate the MP for a year, the Speaker of Parliament with unparalleled zeal and gusto made certain rulings under the Privileges, Immunities and Powers of Parliament Act which bars the courts from hearing the appeal by Bennett.
The constitution of Zimbabwe guarantees the right to appeal, the international instruments that Zimbabwe has ratified provide for the same right and it has never been tolerated in any democracies that the right to appeal is derogated under any situations.
The rule of law is premised on the notion that there is separation of powers between the arms of state – the judiciary, the executive and the legislature – and encroaching into the domain of the other will only lead to confusion and legal disorder as is the current situation in Zimbabwe and a total disintegration of the rule of law.
The work for the restoration of rule of law in Zimbabwe takes more than the acquittal of the opposition leader and for ordinary Zimbabweans it might mean nothing, as they are yet to enjoy the fruits of the so-called intact wheels of justice and the rule of law.
Otto Saki is project lawyer with the Zimbabwe Lawyers for Human Rights and a research fellow at the Institute for Human Rights and Development in Africa.