Restore constitutionalism

Editor’s Memo :Faith Zaba

The judiciary is an arm of the State integral in shaping how any nation is perceived in the global geopolitics.

Legal decisions significantly matter in steering development or vice-versa. Transparent courts have the potential to unlock investment and promote democracy — all critical components that any government requires to win public trust.

For Zimbabwe’s so-called new dispensation, the judiciary has so far failed to live to its billing, making judgements that are calamitous to its endeavour to rebrand itself as a democracy after several decades of misrule by the late former president Robert Mugabe, who manipulated courts to suit his whims. The tragedy ranges from politicisation of the courts, biased rulings, to judgements that are crafted to muzzle dissenting voices.

In a perplexing development, Harare Magistrate Ngoni Nduna this week barred prominent human rights lawyer Beatrice Mtetwa from representing incarcerated journalist Hopewell Chin’ono, charged with inciting public violence and remanded at Chikurubi Maximum Prison. The magistrate ordered that she be prosecuted for comments posted on a Facebook page called Beatrice Mtetwa and the Rule of Law, which is run by American filmmaker Lorie Conway.

The alleged post cited by prosecutors was made a decade ago and was a film about Mtetwa’s career as a human rights lawyer. The Facebook page, however, was not hers and she does not contribute to it. Mtetwa, who has no presence on social media, stated that she only knew about the alleged comments when they were raised in court.

Nguni said he would forward his ruling to the Law Society of Zimbabwe for possible further punishment of Mtetwa.

In barring Mtetwa, Nduna cited three precedents — two that referred to American cases in 1972 and 1979 and a 1997 local case of Smyth v Ushewokunze. The local case referred to the conduct of a public prosecutor, who was found to have failed the test of impartiality and detachment required of a law practitioner.

Interestingly, in his ruling, Nduna did not make many references to the constitutional right of accused persons to choose their own lawyers. The Zimbabwean law upholds the right of the accused persons to be represented by a lawyer of their choice.

For the soccer lovers, what happened in court this week was like having Dynamos F.C. choosing who should coach or captain Highlanders F.C. Such an ill-informed verdict is not only exceptionally unfair, but also unacceptable.

Constitutional law expert Alex Magaisa said the decision by Nduna was part of what he described as a “complex lawfare, in which the law is used as a weapon by the (Emmerson) Mnangagwa regime to supress citizens”.

Lacking the tact or wit to tackle pertinent issues sinking the country into the abyss on various fronts, the inept Mnangagwa administration has resorted to ruling by law as the ultimate option to counter simmering discontent.

Also surprisingly, this is a matter of great weight centred on a journalist who executed his watchdog role to expose a whopping US$60 million scandal involving high personalities (Draxgate scandal). And justice for Chin’ono is at stake while the courts, seemingly captured to safeguard the interests of the elite, use political theatrics to warn potential critics to watch out. In constitutional democracy, he has a legal right to be represented by a lawyer of his choice. Of great concern is that this comes after riot police had twice besieged Mtetwa’s offices last week — a carefully orchestrated move to instil fear in her.

Magaisa’s comments in an article on his blog are on point when he said: “The regime is merely using the law to achieve its primary objective, which is to keep the jailed political prisoner in prison and to deprive his of his lawyer. The tragedy is that this is happening in an arena that should provide respite to the persecuted.”

The courts should protect the citizens. The handling of Chin’ono and Transform Zimbabwe leader Jacob Ngarivhume, the organiser of the July 31 protests, raises eyebrows, while also begging more questions. It is foolhardy to trust them as custodians of the rule of law. Our judiciary should never be politicised to champion the interests of the elite. There is urgent need to restore constitutionalism.