Govt in self-exposure: Overregulation, arresting everyone for its own failures

Musa Kika:lawyer

IF you expose corruption, we will arrest you. If your tweet is in support of protests, we will arrest you. If you say we are torturing and abducting people, we will arrest you. If you protest when a foreign president is visiting, we will arrest you. If you talk about how we are failing to govern in WhatsApp groups and on Twitter, we will arrest you. If you tell other countries of our troubles in Zimbabwe, and that we are butchering you, we are creating a law to arrest you. Another new problem? We will enact a law for you!

Over the last few months we have had jaw-dropping reactions to the many government announcements of laws in the making, the most recent being the announcement of Cabinet’s approval of amendments to the Criminal Law (Codification and Reform) Act, that seek to criminalise “calling for sanctions”, protesting that coincides with regional and international events and foreign visits, speaking of “unsubstantiated claims” of abductions and torture and “unauthorised communication or negotiation by private citizens with foreign governments”.

This is not coming out of the blue; it is all emanating from a government caught pants down, and instead of addressing the problems it wants to shut down those who vocalise the problems.

When it comes to enforcement, one cannot fault holders of a reasonable apprehension that these laws have their targets pre-identified, and will not be enforced against those in the ruling camp, if our history is anything to go by.

All this is to also instil fear among the people. The irony is that this behaviour in fact betrays the fear of those in power; fear of the people, fear of their own deeds, fear of losing power, fear of being brought to justice. But the righteous fear not.

When the seminal article Too Many Laws, Not Enough Justice by Ralph Loomis appeared in the New York Times on March 5, 1978, he remarked on overregulation in ordinances in the United States that: “This curious species of law is not the creation of frivolous, misguided legislators but rather a logical product of our democratic system”.

In Zimbabwe, the opposite seems true. This is a product of both frivolous and misguided legislators and Cabinet ministers, but also an illogical outcome of the butchered democratic system that has been mutilated out of recognition in the manner in which it plays out.

An overregulated society is one where those who are supposed to abide by the law do not even know what to do, what is criminal and what is not, what is acceptable and what is not. It criminalises the very existence of people. For instance, even lawyers have lost track of the Covid-19 regulations, numbering around 40 to date.

Human beings are social. As long as they live, they must associate, speak and complain. As with all rights, these three are interrelated, interdependent and indivisible. These rights are among the most basic of civil and political rights accorded to all without distinction under both international law and the Constitution of Zimbabwe.

The things of expression that the government now seeks to criminalise, are old age established human liberties that would not carry the day in any democracy and court that applies reason, democratic principles and champions human liberties over the wishes of the rulers of the day.

For instance, our own Constitutional Court per Justice Rita Makarau JCC has ruled in Democratic Assembly for Restoration and Empowerment & 3 Ors v Saunyama N.O & 3 Ors CCZ-9-2018, that “Protests and mass demonstrations remain one of the most vivid ways of the public coming together to express an opinion in support of or in opposition to a position. [. . .] Long after the demonstrations, and long after the faces of the demonstrators are forgotten, the messages and the purposes of the demonstrations remain as a reminder of public outrage at, or condemnation or support of an issue or policy. [. . .] Demonstration have thus become an acceptable platform of public engagement and a medium of communication on issues of a public nature in open societies based on justice and freedom”.

Working and shifting the laws now and again is also strategically designed to create a mirage of problems caused by non-regulation, when in fact it is overregulation and the indiscretions of those in power.

Rule of law denotes the supremacy of the law, and not supremacy of those who control the law. Rule by law on the other hand is a wholly different phenomenon. This is when the law is weaponised, and the State engages in strategic lawsuits against public participation (SLAPPs), as we are seeing.

This is also where the State threatens everyone with arrest. When we have too many laws, it is the rule of law that suffers, as ably argued by Ilya Somin in his Washington Post instalment of October 2, 2017 titled Why the rule of law suffers when we have too many laws.

As Somin argues, when a state of overregulation ensues, “the authorities can pin a crime on the overwhelming majority of people, if they really want to.

Whether you get hauled into court or not depends more on the discretionary decisions of law enforcement officials than on any legal rule. And it is difficult or impossible for ordinary people to keep track of all the laws they are subject to and to live a normal life without running afoul of at least some of them”.

Yet is a fundamental tenet of rule of law that the principle of legality must be adhered to, and its prescription of legal clarity and certainty. In the enforcement thereof, there ought to be avoidance of arbitrariness, fairness in the application of the law, equality before the law, and procedural and legal transparency.

By whatever measure one chooses to see it, it is not over-regulation that we need. We need democratic practice, accountability and abidance with the Constitution. Per John Locke in his Second Treatise of Government, “The end of law is not to abolish or restrain, but to preserve and enlarge freedom”. The question should be, how does this advance human freedom as opposed to merely curtailing it?

While rule by law and overregulation might appear advantageous to the rulers of the day, it is prudent to remind them that power is temporary and soon they would find themselves at the mercy of new rulers, with the legal weaponry they themselves would have created.

It is the classic case of fate as captured by Shakespeare in Macbeth, that “Bloody instructions, which, being taught, return to plague the inventor”.

Regulation that may have legitimate aims but has negative consequences, real or unintended, should not be supported. And certainly regulation that is informed by the manipulative interests of those in power for personal and sectarian gains, is an affront to democratic practice.

Market regulated economies, free societies and development-oriented states tend to allow for greater citizen agency. Overregulating behaviour leads to suppression of creative energy, innovation and free-will.

It undercuts the full expression of the potential of individuals and the Zimbabwean people as a whole. It is a trite position of legal philosophy that one cannot legislate good behaviour, in any event.

Some things require political responses. Some things require economic or social responses. Not everything needs legal responses. But if you place in power a clan that fails at political, economic and social solutions, they will arrest everyone for their failures!

Kika (PhD) is a human rights and constitutional lawyer, and serves as executive director of the Zimbabwe Human Rights NGO Forum