THERE is a piece of wisdom that circulates quietly among those who have been bruised by the machinery of the legal system, rarely spoken aloud in polite company but understood viscerally by anyone who has sat in a courtroom waiting for truth to arrive and then sadly watched truth abandoning them.
The law, in its present form, is not a vehicle for justice. It is a contest. And just as most contests, it tends to be won by whoever can afford to stay in the game the longest.
The late Judge Simpson Victor Mtambanengwe, a man who gave his life to the legal profession and loved it with the particular devotion of someone who understood both its grandeur and its shame, once said, with a gentle laugh over a barbeque, “the accused is innocent until they go bankrupt from legal fees”. This statement is loaded and the Judge was not being cynical for sport. He was being honest about a system he knew intimately. There is no crueler joke in jurisprudence and no truer one.
What is the law, stripped of its ceremonial robes and its Latin flourishes? At its most elemental, it is a set of rules that a society has agreed or been made, to live by, enforced by people within institutions with the power to punish those who violate those set of rules. This is not the same thing as justice.
Justice is a moral concept. It concerns itself with what is right, what is fair and what is deserved. And in life, very few people ever get what they deserve, they get what they negotiate, particularly if they have evidence to prove, persuade and inform.
The law concerns itself with what is provable, beyond reasonable doubt, what is procedurally correct and — critically — what the party with superior resources can argue most convincingly. These are related enterprises the way that a map is related to the territory it claims to represent. It is useful, sometimes accurate, but never the thing itself.
The image of litigation as pigs swilling and screaming until one gives up is indelicate, but is not inaccurate.
Adversarial legal systems are premised on the idea that truth emerges from conflict, that if two parties argue hard enough, a neutral arbiter will discern what actually happened and render a verdict accordingly. This is a seductive theory.
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It is also, in practice, deeply corrupted by the simple fact that legal arguments cost money. The pig with the deeper trough does not win because it is right.
It wins because it can afford to keep screaming and arguing! And the other pig, however innocent, however wronged, eventually falls silent, not because it has been defeated on the merits, but because it has been financially exhausted into submission.
This is not a flaw in an otherwise sound legal system. IT IS the legal system. And it operates with particular brutality in civil matters, where the full weight of this asymmetry is exposed without even the pretence of a public prosecutor to balance the scales.
Then there is the peculiar architecture of corporate law, which represents perhaps the most audacious jurisprudential fiction ever constructed and successfully sold to an entire civilisation.
The doctrine of corporate personhood, the legal sleight of hand, by which a collection of documents filed with a registry office, acquires the standing of a human being before the law — is a masterpiece of professional illusionism. A company cannot think, it cannot feel and it cannot be imprisoned. A company cannot suffer consequences in any meaningful human sense and yet the law insists, with a straight face, that it has rights, that it can sue and be sued and that it possesses a persona before the courts.
Who benefits from this fiction? Not the worker whose pension vanished when the corporation declared bankruptcy. Not the policy holders who lost out after years of paying premiums, only to have their life policies zeroised by life companies, supposedly because of hyperinflation — yet, it is a fact that those premiums were invested in real estate across the country. Not the community whose river was poisoned by a company that folded before the judgment arrived.
The fiction of the separate legal persona exists primarily to insulate actual human beings, the shareholders, executives, founders, etcetera, from accountability for decisions that actual human beings made.
It is justice’s opposite number: a legal mechanism designed specifically to ensure that the people most responsible for harm, are the most protected from its consequences.
I say none of this to be nihilistic about the law. Rules are necessary. Procedures exist for good reasons, even when they produce maddening outcomes.
The presumption of innocence, the right to be heard, the prohibition on self-incrimination and so on, are not mere formalities. They are hard-won protections that matter enormously, especially to those without power.
A world without law is not a world with more justice. It is a world where the strong simply take what they want without the inconvenience of having to argue for it in court.
But we must resist the comfortable conflation of a legal victory with moral vindication. When a corporation wins a lawsuit, where it has not been found to have behaved well, it does not mean it has been found to have behaved in accordance with the written rules. The company, simply hired better lawyers than its opponent.
When a criminal defendant is acquitted, justice may or may not have been served, depending on whether the acquittal reflects innocence or merely the failure of the prosecution’s evidence to clear a procedural threshold. These are different things and treating them as the same, impoverishes our moral reasoning.
The real danger is not that the law fails us occasionally. The danger is that we have outsourced our moral imagination to it, that we have come to believe that what is legal is therefore right and what is illegal is therefore wrong. This is a catastrophic abdication.
Legal systems have sanctioned slavery, apartheid, the dispossession of indigenous peoples and the protection of torturers. The law, in those instances, was working exactly as designed, with justice was nowhere in the vicinity.
Judge Mtambanengwe knew all of this. He said what he said not out of contempt for his profession, but out of love for something higher than it — out of a recognition that the law, at its best, is a flawed but necessary instrument in the service of justice, but not its definition.
This distinction matters. It matters, especially to those who find themselves, through misfortune or poverty or the mere fact of being on the wrong side of a powerful opponent, dependent on a system that was never fully built with them in mind.
Never find yourself on the wrong side of the law, not because the law is just, but because it is powerful. The two things are not the same.
And confusing them is how injustice perpetuates itself, politely, in pressed suits, with citations and precedents and the full theatrical authority of the court.
The late Judge Mtambanengwe’s candid observation at that barbeque is the kind of moment that carries more jurisprudential weight than most formal lectures. There is something about an insider speaking plainly, away from the bench, that cuts through, in a way that academic critique rarely does.
I wrote this piece because way too many people discover the gap between justice and law only when they are already inside the machinery — which is precisely the worst time to find out.
Ndoro-Mkombachoto is a former academic and banker. As a Systems Transformation Strategist, she helps multilateral agencies, such as the UN, IFC/World Bank, DANIDA, CIDA, GTZ, etcetera, future-proof their operations in markets where the rules are still being written. She also assists private and public sector companies in volatile emerging markets and constrained ecosystems, solve the complexity of institutional alignment by using frameworks that turn systemic constraints into growth engines. Gloria is the current Chairperson of NetOne Financial Services PLC, a subsidiary of NetOne Telecomms. Follow Gloria on YouTube @HeartfeltwithGloria or contact her on [email protected]
