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Editor’s Memo

Besieged guardians

I WAS grateful to have Beatrice Mtetwa’s views on the erosion of Zimbabwe’s legal system which we published last week. Beatrice is a prominent local attorney who last year won t

he Human Rights Lawyer of the Year award presented by the Law Society of England and Wales together with other legal groups.

She was also last year the victim of a police assault about which she has filed a complaint. She had been seeking their assistance at the time over a vehicle hijacking attempt.

In her article last week Beatrice drew attention to changes in court procedures and the concerns people have over obtaining a fair trial in the totalitarian state that has been so assiduously established in Zimbabwe since the government’s electoral setbacks in 2000. She pointed out that threats against the judiciary in the state media were likely to have – indeed are designed to have – a chilling effect on judicial practice. Judges and magistrates may be reluctant to find against the state if they were likely to be abused in the government press, she noted.

Somebody who has been following threats made against the judiciary in this country is Dato Param Cumaraswamy, until recently United Nations Special Rapporteur on the Independence of Judges and the Judiciary. Giving the opening address at the Second World Bar Conference of the Forum for Barristers and Advocates held in Cape Town this week, he referred to human rights abuses currently marring Zimbabwe’s international standing.

“Today the continued deterioration of the rule of law and human rights protection in Zimbabwe are matters of grave concern,” he said. “Not just the well-being of its own citizens, but the developments there must be seen as a threat to the rule of law for all Africa.”

Cumaraswamy said when the executive organ of a state refused to comply or defied orders of the judicial organ there was no hope for the rule of law.

There are some 20 000 legal practitioners across the globe affiliated to the forum. In addition to threats against judges, Cumaraswamy and his colleagues have been concerned with assaults on lawyers representing clients. The case of Gabriel Shumba who recently gave evidence to a US Congressional sub-committee on his treatment at the hands of Zimbabwean law enforcement agents has received widespread attention. So has the experience of Gugulethu Moyo at the Glen View police station.

Also likely to be subjected to professional scrutiny is the case of three MDC activists accused of kidnapping and murdering war veterans leader Cain Nkala. High Court judge Justice Sandra Mungwira ruled that state evidence against the three, including warned-and-cautioned statements and video tape indications, was inadmissible. The men said their confessions had been obtained by torture and other forms of duress. The police said the three had confessed to the murder without any undue influence. But Justice Mungwira found the police evidence and accounts of their handling of the suspects “fraught with conflict and inconsistencies”.

She said the state witnesses conducted themselves in “a shameless fashion and displayed utter contempt for the due administration of justice”. The police investigations diary, she said, could only be described as “an appalling work of fiction”.

The discovery of Nkala’s remains in November 2001 led to an unprecedented campaign of calumny and vilification against the MDC in the state media as the ruling party tried to portray it as a violent terrorist organisation.

The Media Monitoring Project of Zimbabwe has described the episode as one of the most shameful in Zimbabwe’s media history.

“Every vestige of ethical journalistic practice was cast aside,” MMPZ said, “as the ruling party encouraged the state media to incite a frenzy of anger and hatred against the MDC.”

This resulted in Zanu PF supporters attacking MDC members and destroying property in Bulawayo and Kadoma. It came just four months ahead of the presidential poll.

Speaking at Nkala’s funeral, President Mugabe was reported as saying: “Cde Nkala’s brutal murder was a bloody outcome of an orchestrated, much wider and carefully planned terrorist plot by internal and external enemies with plenty of funding from some commercial farmers and organisations…These sponsor forces of destruction in the MDC.”

Mugabe then named MDC personalities branding them Selous Scouts.

The question that now remains is who killed Nkala? Why does that remain, together with the bombing of the Daily News offices, one of the great unsolved crimes of recent times?

Quite clearly in the Nkala case there was a concerted effort to find MDC activists guilty well before investigations had been completed. What remains to be seen is how the police investigations diary came to contain what the judge called “works of fiction”. Presumably Police Commissioner Augustine Chihuri, who was this week telling his Botswana counterparts that their laws violate human rights, has launched an investigation into all the circumstances surrounding police handling of the Nkala case including their treatment of those detained.

We can’t have a situation in which we lecture neighbouring countries on human rights abuses while ignoring those on our own doorstep. The Southern African Regional Police Chiefs Cooperation Organisation and local structures of Interpol should be documenting all reports of abuse.

Meanwhile, we need lawyers like Beatrice Mtetwa and members of Zimbabwe Lawyers for Human Rights to keep the country alert to threats to the judicial process so the state doesn’t proceed with impunity to erode those few liberties we have left, of which the courts remain the besieged guardians.

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