Comment: Leave the Courts to do their Work

PRIME Minister Morgan Tsvangirai crossed the very thin line between making a rational decision and a monumental political gaffe.

Daggers were out for the PM this week after he wrote to the High Court offering himself as “surety” in the bail application by incarcerated Roy Bennett who is facing charges of possession of fire arms.

Tsvangirai in his letter said Bennett should be given bail so that he assumes his duties as Deputy Minister of Agriculture.

“Such is the need for Zimbabwe to have at its disposable all nominated and qualified personnel to work to rebuild our economy and our nation that it is imperative that Mr Bennett is granted bail and begins his work immediately,” said Tsvangirai in a letter addressed to the High Court.

The letter alarmed state prosecutors who had to be restrained by Justice Lawrence Karwi not to attack their “principal”.

A prosecutor said the letter was “irregular” and that the PM’s actions amounted to a “serious infringement on the separation of powers”.

Bennett’s lawyer Beatrice Mtetwa however told the court that there was nothing amiss in Tsvangirai writing to the court.

Our position on this issue is different and unequivocal.

Tsvangirai, as a powerful member of the executive, should not be writing to the bench to say “it is imperative that Mr Bennett is granted bail…”

The argument is not about the law; the letter is an affront to the MDC’s rhetoric about non-interference in the judiciary.

We believe that we have a role to raise alarm very early on when key issues of principle –– especially to do with the separation of powers –– are infringed upon by politicians hiding behind the veil of common good.

The same subterfuge of pretending to act in defence of the common good drove the Zanu PF project which over the last decade has resulted in the subversion of property rights, subornment of the judiciary and a breakdown of the rule of law.

Tsvangirai knows this because he has pitched himself as one who has greater respect for the basics of the rule of law than President Mugabe.

We are well aware that present day dictators and juntas were yesteryear loveable men and women who developed a culture of impunity because they were left to get away with little infringements.

There is danger in being lenient with Tsvangirai and his new members of cabinet because they are “new on the job” and that their blemishes are not as egregious as those perpetrated by Zanu PF.

That is the fodder that nurtures emerging dictatorships.

This incident may not necessarily draw criticism from the doyens of the rule of law and defenders of the doctrine of the separation of powers, but we will not be guided by their complicity on this issue. Tsvangirai’s letter we believe was a monumental mistake for which he will be judged.

The fact that he is working in a transitional authority is beside the point. This is a useful training ground for him.

Here we want to state that the merits of the case against Bennett could be dubious and that his case may be politically-motivated.

But because Tsvangirai is effectively head of government as prime minister, he has become part of the authority prosecuting Bennett.

He knows better that what is required is a political solution to the problem, but his contribution to the discourse around the Bennett case does not warrant him writing to the courts.

There is Jomic to make a report to.

He also has access to President Mugabe and other senior government officials to discuss the matter, including Sadc

Tsvangirai would argue that the thrust of his letter is being misconstrued.

He would want to give the impression that he was offering himself as surety.

But can we also not surmise that the letter was telling the judge how to conduct himself when dealing with the Bennett case?

That in our view amounts to executive interference.

Tsvangirai would have said the same if President Mugabe had written to the courts offering his views on the case because it simply sets a wrong precedent.

What we find odd is that Tsvangirai has only elected to write to the courts on the Bennett issue and has not deposed documents to the same courts to secure the release of Jestina Mukoko and dozens of “other nameless” activists who have been in custody for over three months.

Are they lesser beings than Bennett?

We understand the pressure Tsvangirai is under to ensure Bennett is released.

Bennett’s wife and “a group of friends” have been pushing Tsvangirai to walk out of the unity government to protest Bennett’s incarceration.

We also understand Tsvangirai’s frustration in dealing with the wily Mugabe. Bennett’s continued incarceration is an egregious act of bad faith given the assurances made.

But Tsvangirai should not start to show signs of poor judgement so early on in his tenure as PM. There will be more pressure and more demands on him in the coming months.

He will need to put the interests of the nation ahead of personal friends. We are watching closely to see what stuff he is made of.