WE were both bemused and amused to read the pontifications of Silas Chekera, whose article was published in the Zimbabwe Independent of May 15, wherein he lamented â€œthe steady decline in the quality of legal advocacy in our courtsâ€.
It must be especially heart-warming for lawyers in Zimbabwe who are daily on the frontline of defending fundamental rights and freedoms in one of the most insecure and dangerous operating environments to know that he continues to take an interest in, and observe, their actions and legal proceedings â€œfrom a distanceâ€.
However, one would have expected a lawyer who purports to represent an alleged international war criminal to have at least a basic understanding of international criminal and human rights law, especially insofar as it relates to an accused person.
In any situation where powerless individuals are subjected to the international crime of enforced disappearance (abduction) and additionally the universally proscribed crime of torture and cruel, inhuman and degrading treatment and punishment by state-sanctioned agents in order to extract false â€œconfessionsâ€ and â€œevidenceâ€, and these are then used as the basis to lay charges against them, it is trite that a judicial officer who applies his/her mind reasonably, impartially and without fear or favour to the facts and the law would punish the state for such unlawful action.
This would be done by refusing to entertain the charges against the affected individuals â€” no matter how strong the case may be â€” and also insisting on an investigation which would bring the perpetrators of such international crimes (which are also crimes under our own domestic law) to justice.
Chekera would also know that informed law officers representing the Attorney-General (as he once did during the onslaught against human rights defenders) have a professional duty to properly advise state agents that where such offences have been perpetrated they must and will be brought to the attention of the court, and therefore a legitimate prosecution will not have any prospects of success as the charges will be thrown out.
Chekera, if he has reference to his case law and jurisprudence from when he was still practising law in Zimbabwe, further enhanced by his work at an international criminal tribunal, would know that such precedent exists in our country on the basis of provisions of our Constitution and criminal law (and regional and international treaties to which Zimbabwe has voluntarily bound itself), as well as further afield.
Indeed Chekera is correct to state that it is the prerogative of the Attorney-General to charge anyone on reasonable suspicion of commission of an offence (although not on reasonable suspicion of â€œguiltâ€, as he puts it â€” this is part of the basic introduction to criminal law).
However, in light of the above explained workings of international law and in accordance with general judicial precedent, even where there is reasonable suspicion, the Attorney-General would ethically and professionally be unable to proceed with such a case where such individuals have been victims of enforced disappearance and torture.
Where such cases proceed regardless, the prosecution of accused persons cannot, as a logical conclusion, be said to have any basis at law but rather points to a political motive and persecution.
Anywhere in the world, where a case has become so politicised to the extent that all rules of procedure have been thrown aside by political players, rather than lawyers, in efforts to â€œalleviateâ€ the suffering of accused persons whilst doing nothing to address the initial injustice which sees them continue to face charges which are unsustainable in terms of domestic and international law, it is at the very least insincere of Chekera to blame lawyers for not following what he perceives to be the â€œcorrectâ€ legal processes and prolonging the suffering of their clients.
If anything, those who insist on politicising legal processes rather than complying with the law should be the ones facing his allegations.
Chekera criticises human rights lawyers for their legal submissions which, he accuses, are â€œincreasingly taking the tone of human rights mantraâ€.
Legal arguments seeking to uphold the fundamental rights and freedoms of individuals are the right of an accused person if s/he is to have proper protection of the law, as is provided for in our Constitution.
Such disregard for basic rights is even more astonishing coming from a lawyer representing an accused person who is appearing before an international criminal tribunal. We will be watching closely to see how often Charles Taylorâ€™s defence team, including Chekera, will resort to the â€œhuman rights mantraâ€ when they seek to protect the rights of their client.
It is very easy to blame lawyers for failures in the justice delivery system. We are a soft target and do not mind such attacks as they come with the terrain, along with assaults, surveillance, arrests, detentions and abductions.
We will continue to appreciate the humour such opinion pieces bring to a few minutes of our day. But once the chuckles have faded, we and our colleagues will prefer to continue carrying out our professional mandate by focusing on the following statistical reality: in the past six years, a conservative estimate of over 5 500 human rights defenders have benefited from legal representation by lawyers â€” many represented by those with whom Chekera has found fault.
Not one single conviction has been secured by the state in these cases. So Chekera will pardon us if we continue using our â€œhuman rights mantraâ€ to preserve the lives, dignity and rights of our clients.Â Â Â Â Â Â Â
- Irene Petras is the Executive Director and Otto Saki is the Programmes Coordinator of Zimbabwe Lawyers for Human Rights. They write in their personal capacities.
BY IRENE PETRAS AND OTTO SAKI