Moments in rule of law

By Musa Kika

THE law is not an exact science like precision engineering. Justice Malcolm Wallis of the South African Supreme Court of Appeal, for whom I was clerk for some time, said one day, in law it is impossible to get everything right all the time, but the goal is to be correct for as most times as possible.

In a criminal court, it is known that a guilty finding before a court does not necessarily mean one did it — that is why some are acquitted on appeal; equally a not guilty verdict does not mean one is innocent. Judges err, for they are humans.

At times, the law itself as applied may be wrong and unjust. So there is an appeal process to higher courts, including an allowance to go back to the same court in the case of apex courts, as with the Zimbabwean Constitutional Court, for the court to revise its judgment.

Court rulings are writings on paper. Courts do not have police officers and armies to enforce compliance with their judgments. What makes court judgments stick is a culture of compliance cultivated in the given society.

This compliance, a social contract by people in the society to comply, is the currency of courts. It thus follows logically that non-compliance has serious repercussions to the efficacy of courts, and with that, the rule of law.

Compliance with court judgments is not based on whether one likes the judgment or not, but it is based on the fact that the courts have spoken. Granted, judicial review these days may sometime manifest in judicial overreach. But there are mechanisms that can be put in place to prevent this. There are already established rules around what lines courts cannot cross.

So compliance is a culture, upon which the rule of law is built. Court litigation is not mediation — unless the judge decides to play that role and drive parties to an order by consent, which is not uncommon. Litigation not being mediation, there is bound to be a winner and a loser. So we all cannot have judgments that we like.

There are moments in rule of law, which determine whether rule of law or rule of politics prevails.

Political leaders, especially presidents, are such powerful forces in any society. What they do carries currency, and shape the culture of societies.

Late former president Nelson Mandela was such a powerful figure in South Africa, revered. He was termed the most admired man on earth. In Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) a ruling was made against him.

The Executive Council of the Western Cape province challenged the validity of amendments to the Local Government Transition Act 209 of 2003. These amendments were effected by president Mandela by proclamation purporting to act in terms of powers vested in him under the Transition Act.

The court ruled that certain provisions of the Local Government Transition Act and the proclamations made by president Mandela under it, were invalid by reason of inconsistency with the Constitution. Who would dare rule against Mandela, and in 1995?! But such is the system of rule of law. He complied.

Thabo Mbeki was a powerful president. In Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) the South Africa Constitutional Court ruled against president Mbeki’s Aids denialism and ordered the government to supply nevirapine, a fast-acting and potent antiretroviral drug for use against intrapartum mother-to-child transmission of HIV, and not to confine the drug provisions to a few select pilot centres. It is a fact that had the court not intervened, thousands if not millions would have died of Aids in South Africa.

Constitutional Court judge Edwin Cameron says in his book Justice: A Personal Account, that this case was seminal firstly for saving the lives of millions of people, effectively bringing an end to an era of government’s denial of the Aids pandemic and its catastrophic effects, but secondly, the decision by Mbeki and the government to abide by the order of the court endorsed the rule of law in South Africa and was a seal of political will to abide by the Constitution and the rule of law.

On 29 June 2021, the South African Constitutional Court ruled that the country’s former president Jacob Zuma was in contempt of court, and was sentenced to an effective 15 months’ imprisonment.

Whether that judgment is sound at law or not, is a different question. There is a minority judgment by Theron J (supported by Jafta J) to the effect that the court’s order is in breach of certain constitutional guarantees). The majority ruled otherwise. Does Zuma have an option to disregard the court order, because he thinks it is wrong, or some think it to be wrong? Doing so makes him the judge, and makes him a higher court above the Constitutional Court. Doing so heralds self-help, the very antithesis of a system predicated on the rule of law.

The reality is that this ruling is a rule of law moment: the damage will be irreparable if the choice of compliance is left in the hands of Zuma himself, or those who support him.  We have had such moments in Zimbabwe, squandered. Late former president Robert Mugabe was such a powerful political force. At critical moments in rule of law, he made certain statements against the judiciary.

He prefaced what was to come by the following statement, made on July 29, 1982 in a Parliamentary debate when he was still prime minister: “the government cannot allow the technicalities of the law to fetter its hands in what is a very clear task before it, to preserve law and order in the country [. . .] We shall, therefore, proceed as government in a manner we feel is fitting [. . .] and some of the measures we shall take are measures which will be extra-legal”.

So it started. In the 1990s, Mugabe reacted to a letter by three Supreme Court judges asking him to denounce the illegality of detentions of two journalists by the army and the impunity with which the army had acted by refusing to comply with repeated court orders to release them, and said: “the judiciary has no constitutional rights whatsoever to give instructions to the President on any matter as the [. . .] Judges purported to do. Their having done so can clearly be interpreted as an action of the utter judicial indiscretion or one of impudence, or as, as I regard it, an outrageous and deliberate act of impudence”, and he called for the judges to resign.

Here is another example: On November 24, 2000, war veterans forcibly stormed the Supreme Court building where judges were about to hear a constitutional application brought by the Commercial Farmers Union, and disrupted proceedings.

On December 14, 2000, Mugabe, speaking at his party’s annual congress, disowned the courts, and said that: “The courts can do what they want. They are not courts for our people and we shall not even be defending ourselves in these courts.” He described judges as guardians of “white racist commercial farmers”.

And another one: Following the above mentioned episode, the government of Zimbabwe thenceforth ignored the land invasion rulings, prompting the case of Mike Campbell and Others v Republic of Zimbabwe, SADC (T) No. 2/2007 before the then Sadc Tribunal in Windhoek, in which a group of farmers contested the acquisition by the Zimbabwean government of agricultural land under the fast-track land reform programme, based on the ground that this breached the Sadc Treaty to which Zimbabwe is a party.

The Tribunal unanimously ruled for the applicants, ordered compensation, and directed the Government of Zimbabwe to take all necessary measures to protect the possession, occupation and ownership of the land of the applicants.

Despite the fact that in terms of Article 32(3) of the Treaty establishing the Tribunal, the judgment was final and binding, the government refused to comply with it. The then Minister of Land and Resettlement said that the Tribunal was “day dreaming”.

President Mugabe denigrated the Tribunal’s decision as “nonsense” and “of no consequence”. In the end, the order was just ignored. It is this disregard that eventually led to the demise of the Sadc Tribunal in 2011.

One cannot take this kind of approach to rule of law, making these kinds of statements, and expect the rule of law to remain intact.

Here is an extract from my PhD thesis, “The rule of law itself is not dependent only upon positive law, and while it may be couched in positive law terms, it essentially consists of values and not institutions. What is equally true, however, is that even in a country like Zimbabwe where there is a written constitution and a justiciable bill of rights the rule of law can be abrogated, the point being that having a constitution does not necessarily imply rule of law”.

Rule of law, is about values, among them the value of respecting judicial pronouncements.

The above explains why Zimbabwe is in the space it is now, where the rule of law is concerned. South Africa has a moment now, to elect whether to go the Zimbabwean route or maintain its own. Rule of law is a culture; a culture that conduces to order, peaceful coexistence and development. Who comes to put in their money where a litigant can simply choose whether to comply with an order or not, without consequence?

  • Kika is a human rights and constitutional lawyer. He is the Executive Director of the Zimbabwe Human Rights NGO Forum.