Cape Town — On March 9 2015, a young Zimbabwean journalist and human rights activist called Itai Dzamara was allegedly abducted by an armed group of unknown individuals. This happened in broad daylight. That was the last time that he was seen. A few days later, his family and lawyers approached the courts.
The application they were making was based on the right of Habeas Corpus, which I understand means “show the body”, a remedy, I am told, which is often sought where a person is suspected of being in the custody of the state. The demand is for the person to be produced and for the state to justify why he should be kept in custody. The roots of this important remedy are to be found directly in the Magna Carta [The Great Charter issued by King John of England in 1215].
In this particular case, the court granted the order and compelled the law enforcement authorities, including the police, and intelligence services to mount a search for the human rights activist, on the basis that the state has a duty to protect. Sadly, to date, the whereabouts of the human rights activist have still not been accounted for.
The story is remarkable not only for the fact that the remedy sought was rooted in a right first recognised in the Magna Carta, but that 800 years after it was signed, the same issues that concerned citizens at that time are still of major concern to people today.
The story is an important demonstration of the fact that despite the strides that have been made over the years, in the field of human rights protection, democracy and freedom, nevertheless, the world in which we live is still very dangerous. The same tools needed 800 years ago are still as relevant and useful today.
It is worrying that ordinary people still live at the mercy of powerful states, agencies of the state, groups and individuals that are prepared to resort to extra-legal means.
It is even more critical, in this environment, that human rights defenders keep a watchful and vigilant eye on misuse and abuse of power by public authorities. They have to be on constant guard to ensure that the weakest and most vulnerable in society are protected. Often protection has to be sought from the courts of law and in this regard, lawyers play an important role. This is why access to a lawyer is an important right recognised by the constitution.
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Let me start by paying tribute to the sterling work that is performed by many human rights lawyers in Zimbabwe. The Zimbabwe Lawyers for Human Rights (ZLHR) is an excellent servant for the people of Zimbabwe and has been in this role for many years since its establishment in the late nineties.
The ZLHR is a not-for-profit organisation, set up by human rights lawyers at a time when Zimbabweans were finding their collective voice and the seeds of constitutional and political reforms were germinating.
For the next decade and more, as Zimbabwe went on a downward political, economic and social spiral, which came with serious human rights violations authored by the state, the ZLHR rose to become a legal sanctuary for many vulnerable Zimbabweans. It was often the last point of resort for many victims of the political turmoil.
From people who were unlawfully arrested during violent election campaigns to families whose homes were destroyed by the state under the auspices of a clean-up exercise, “Operation Murambatsvina” in 2005, the ZLHR have stood up, with and for the ordinary people.
Lately, the ZLHR have been involved in important public interest litigation to advance and defend the new constitution. To say that they do an extraordinary job is truly an understatement.
Harsh Operating Environment
All this is particularly important considering the harsh environment in which they have to operate. Human rights lawyers sometimes become victims even when they are trying to assist victims of human rights violations.
For example, in November 2014, Kennedy Masiye, a lawyer working for the ZLHR was severely assaulted by members of the police at a police station where he had attended to represent his client who had been arrested while exercising his right to demonstrate. The assault on Masiye, which left him with a broken limb and hospitalised, was one of scores of assaults and harassment that human rights lawyers have been subjected to in the course of carrying out their functions over the years.
The award-winning human rights lawyer, Beatrice Mtetwa, was assaulted by police a few years ago while she and her colleagues were demonstrating in defence of the rule of law. When pictures of her injured body were published in the papers, she was castigated by state media for allegedly exposing herself in an indecent manner.
A few years later, when Mtetwa attended at a client’s property, where police were carrying out an unlawful search and seizure of property, she too was arrested and spent almost a week in police custody.
Many other lawyers have been subjected to assault and harassment of a similar character. These abuses of power cause fear and intimidation among lawyers. It is a harsh operating environment which means only the brave, and some might even say the reckless lawyers are prepared to take up work in defence of political activists. These are the heroes who with no regard to their own safety commit themselves to help others who need legal assistance.
Political Capture
While the harsh operating environment is certainly a limiting factor, there are also other factors that affect lawyers’ work in the field of human rights and democracy. A key phenomenon that I have observed is encapsulated by the term that I refer to as “Political Capture”.
By “political capture” I refer to a situation where political actors subject the legal profession, or significant parts of it, to persistent and disproportionate influence which affects the manner in which they carry out their functions. In order to promote the rule of law, the legal profession ought to carry out its functions independently, and without undue influence from or bias towards political actors, however powerful they might be. It is the hallmark of the profession’s independence that even the most reviled alleged criminal is able to find legal representation. Nevertheless, this independence is lost when the legal profession or significant parts of it become “captured” by political actors and this invariably affects their ability to carry out their professional mandate.
It is important, therefore, to minimise the incidence of “political capture” if lawyers are to execute their important role more efficiently.
It is fair to say that for at least the last decade, Zimbabwe has become a highly-politicised society, in the sense that the force of politics has become pervasive in and dominated people’s daily lives. There have been several elections in the last 15 years and most have been characterised by political violence.
The nature of politics has been very divisive and has often been characterised by violent conduct — both from state and non-state actors. Regrettably, lawyers too have been sucked into this political binary with some taking one side and others taking another side.
I have already commended the lawyers who have taken up the challenge to defend the fundamental rights of ordinary citizens, often at great cost to their personal safety and financial security. Human rights work in Africa does not pay the bills because oft-times the victims that require representation are of limited means.
It is in this context that voluntary organisations like the ZLHR have played a sterling role, enabling ordinary citizens to have access to the few but brave and excellent lawyers. However, only the state can guarantee the safety of citizens and for many human rights lawyers, these guarantees have not been met. Instead, public authorities have often presented a risk to them, instead of giving them protection.
Since most of the victims of human rights injustices are usually supporters of the opposition or civil society activists, these lawyers who represent them have often been branded “opposition lawyers”, by their detractors in the state media. Like their counterparts in the private media, they are often presented as part of the “regime-change agenda” and as “regime-change agents” or even worse, as “agents of imperialism”. In this way, they are regarded by the state and ruling party as helping the cause of the opposition.
As we have seen more recently, these pejorative characterisations are not reserved for lawyers acting on behalf of the traditional opposition parties. When a senior politician recently fell out of favour with the ruling party and was expelled, he disclosed that it was very difficult to find lawyers that were prepared to take up his case.
This, in part, demonstrates the levels of intimidation and fear within the profession and the reluctance of lawyers to be associated with a case that puts the ruling party to the legal tests. However, as if to confirm the reasons why lawyers were reluctant to be involved, the state media went on the offensive and attacked the firm of lawyers that eventually agreed to take up the senior politician’s case.
The state newspapers described the lawyers as “a little-known firm” that was “desperate for attention”. Its description of the firm was designed to injure their reputation and credibility as well as to intimidate them.
For its part, the ruling party has a group of lawyers who are always ready to defend it in the State media. Every report that has legal implications often has lawyers, presented as “legal experts” who back the state and give legal justification to the conduct of the state, even when such conduct is patently unjustifiable or unreasonable.
While every lawyer is entitled to their views and the law is notoriously prone to different interpretations, there is, surely, a certain level of reasonableness that is expected, particularly among professionals. Yet what we often see and read is politically-inspired and patently biased commentary that is packaged as legal commentary.
One can easily see that these are lawyers that have been “politically captured” by the ruling party and government in order to give a veil of justification and legitimacy to their conduct. They give legal interpretations that are designed to please the ruling party and government and have no bearing whatsoever on advancing the cause of constitutionalism and the rule of law.
This problem is not confined to lawyers who routinely come to the defence of the ruling party and government. It can be seen in the approach of lawyers towards the opposition parties as well. Lawyers that are sympathetic to the opposition parties are usually reluctant to publicly criticise and challenge the conduct of opposition parties and their leadership, even if this borders on illegality. While they might have private reservations about such conduct, these lawyers are often coy when it comes to making public criticism of the opposition leadership.
This political capture derails the effectiveness of the legal profession in supporting the rule of law and promoting a democratic culture within the body politic. It promotes a culture of impunity and a sense among the political leadership in the different spaces that they are above the law and beyond public criticism.
Judicial Capture
Having already alluded to the problem of capture of the legal profession or significant parts of it, the greatest concern is over the capture of the judiciary. The principle of separation of powers is that the state consists of three separate arms, the Executive, The Legislature and the Judiciary. The role of the judiciary is to interpret the law and to act as the adjudicator of disputes between individuals and between the state and individuals. In order to perform this role effectively, the judiciary must be independent. These principles are enshrined in the new Constitution of Zimbabwe.
Having principles in a constitution is one thing and the actual practice is a different matter altogether. The great fear in Zimbabwe has been that the independence of the judiciary has been compromised, largely because of political interference. When Zimbabwe adopted a new constitution, there was hope that there would be transformation of the judiciary, as had happened in Kenya, which had followed a similar process. Kenya had undertaken a serious overhaul of the judiciary, ensuring that there would be a transformed judiciary to administer the new constitution.
However, in Zimbabwe, despite complaints over many years that the judiciary was compromised, there was no such transformation. The judiciary has remained exactly as it was before the new constitution. Many members of the judiciary who benefitted from the land reform programme, for example, are expected to pass judgment on the same disputes over land. Some years ago, when judges complained of poor working conditions, the Governor of the Reserve Bank of Zimbabwe, the central bank, responded by plying them with gifts which included the latest models of televisions for their homes. All these practices were seen as compromising the independence and impartiality of the judiciary.
Business Capture
The Magna Carta originated from a group of noblemen, who believed that their rights and interests were not being given the necessary protection by the monarch. It is important in this regard to question the role of business in the quest for the protection of human rights and the rule of law, because ultimately, the interests of business are threatened by the absence of the rule of law and the lack of respect for human rights. To what extent has business been proactive in supporting the promotion of human rights and freedoms?
The problem of “political capture” that we have seen in other sectors could also be an explanation for the restrained approach of business in this regard. Business is timid because of a powerful political force which forces them to toe the line. Politics of patronage also mean that many businesses rely on the benevolence of the state and operate in fear rather than freedom. The fundamental point is that for business to flourish, it must be free from the shackles of the state and from the shadow of fear.
In addition, business itself must be at the forefront of demanding and promoting fundamental rights and freedoms. This is why it is worrying when powerful businesses are seen to be adopting the very same methods that are used by the state, such as interference with freedom of expression and media freedom, in the name of protecting their interests.
The New Constitution
On 16th March 2013, Zimbabweans voted overwhelmingly in favour of a new national constitution. The constitutional referendum was the culmination of a long and arduous process of constitutional reforms that had begun in the late nineties resulting from civil society-generated pressure upon government.
I have already mentioned that I understand one of the key protections of the Magna Carta is the right of Habeas Corpus. This is specifically recognised by a provision of the new Zimbabwean constitution, depicting the enduring influence of that great charter that we celebrate today, the basis of civil rights in the modern world.
The new constitution has been celebrated for the wide range of fundamental rights and freedoms that it protects. Not only does it guarantee the traditional civil; and political rights, it also provides comprehensive protections of socio-economic rights, including the right to health care, the right to education and the right to a clean environment. It is a modern constitution that reflects the dreams and aspirations of the citizens of Zimbabwe.
The new constitution replaced the old constitution which had been adopted at independence after negotiations at Lancaster House in London. This Lancaster House Constitution had fallen out of favour because Zimbabweans believed it was an elitist document that had been negotiated politically for the convenience of ending the war and granting independence. Zimbabweans wanted a home-grown constitution that reflected their ideals and aspirations.
Nevertheless, two years since the new constitution was adopted, it is disappointing to note that there has been very little progress in its implementation. The government has dragged its feet and failed to ensure that the various national laws and policies are realigned with the new constitution.
The government blames a lack of resources for the slow speed in implementation but most Zimbabweans believe the real problem is the lack of political will. Already, there is talk from government ministers that the new constitution will be amended. It would be a sad day for the people of Zimbabwe if the new constitution is amended before any serious attempts have been made to fully implement it.
The problem, however, is that even two years since its adoption, very few are aware of the contents and effect of the new constitution. There has been little effort from government to promote awareness of the constitution. Civil society has had its fair share of challenges and has not done any better. The opposition, which is supposed to play the watchdog role over government and fight to demand the implementation of the constitution is also in some disarray. All this has given government a relatively free reign to continue on the basis of serious constitutional breaches, which include the total failure to implement the provisions for devolution of power, which the new constitution provides for, a first in Zimbabwe’s constitutional history. In this regard, the new constitution has remained the proverbial paper tiger, without any bite.
What has been disappointing however, is that the ignorance of the new constitutional provisions is not confined to ordinary men and women, but it also seemingly pervasive in the legal profession. There is little continuing professional development amongst lawyers in Zimbabwe. There has not been effective education among practising lawyers, prosecutors and judicial officers regarding the requirements of the new constitution. This has resulted in the failure by lawyers to challenge laws that are patently unconstitutional.
The new constitution has new guarantees for the right to life. However, the criminal legislation which currently exists has not been amended to conform to this new system. The result is that convicts are still being sentenced to death regardless of the changes in the new constitution, itself a travesty of justice.
Recently, in March 2015, we heard that prisoners who had rioted against poor living conditions at the country’s main jail, Chikurubi, were shot dead by the police, potentially in complete violation of the right to life which is protected by the new constitution. Yet all this has provoked no public outcry or protests from the lawyers who should be at the forefront of demanding government accountability under the new constitution.
The sad part is that lawyers, prosecutors, law enforcement officers and judicial officers appear not to be fully conversant with the new constitution. All this means the implementation of the new constitution remains largely ineffective. Lawyers should be doing more not just for their individual clients by challenging unconstitutional laws and practices but they should also be investing in educating the public through the relevant organisations.
The lawyers and judges need to invest in continuing legal education programmes to ensure that they are fully conversant with the new constitutional provisions and how they can be used to enhance a culture of constitutionalism. Citizens rely upon the legal profession to take a leading role in this regard.
Conclusion
Zimbabwe has come a long way since independence in 1980 when the Lancaster House constitution came into force. After 19 different amendments, Zimbabwe eventually developed and adopted a new home-grown constitution in March 2013. This present day Magna Carta of Zimbabwe was overwhelmingly voted for by more than 93 per cent at a referendum. It contains a Declaration of Rights that is very comprehensive, modern and progressive in many respects. It is up there alongside the great constitutions of the world, including the South African Constitution, the older ones such as the Constitution of the United States of America, which is more than 200 years old. Yet what is lacking at present is enforcement and implementation. Lawyers have a very important role to play in this regard. They are the ones who know or should know the law. They are the ones to whom we, the ordinary citizens, look up for guidance and assistance. However, the problem of lack of investment in continuing professional education and more importantly, the problem of “political capture” can derail the effective delivery of this important service. The harsh environment in which lawyers operate is at the root of this problem.
However, lawyers also need to rise above the politically demarcated lines, to ensure their independence, both from the ruling party and the state and from the opposition forces. They have to resist the temptation to toe the political line. They have to be critical of government, just as they have to be critical of the opposition, too. In this way, there is greater scope to promote accountability across the board and to minimise the problem of “political capture”. Overall, the great influence of the legendary Magna Carta will be guaranteed to be an enduring force for more centuries to come.
l This paper was presented by Trevor Ncube at the 800th Anniversary of the Magna Carta Conference in Cape Town last week.
