EDITORIAL
Celebrated human rights lawyer Beatrice Mtetwa says interference by the executive in the operations of the country’s judiciary has compromised the justice system.
Mtetwa (BM) told Alpha Media Holdings chairman Trevor Ncube (TN) on the platform In Conversation with Trevor that questionable judgements and the disrespect for certain court decisions was a serious cause for concern.
In this first part of the interview, Mtetwa speaks about some of the major cases she has handled in her career and the state of the justice system. Below is the interview.
TN: Why do you do this work? This is dangerous work particularly being a human rights defender. I know you said you do quite a lot of divorce work, but your profile has grown because of the work that you do around human rights, why do you do this dangerous work?
BM: I don’t even consider it dangerous in that you know if a person wants to use a lawyer and they choose me as a lawyer, I really should be given the carte blanche to do my work without any fear of any possible reprisals.
I mean if I defend somebody and that person maybe was injured by somebody when they were arrested, abducted and a doctor treated that person, why should I be regarded as doing something I should not do when the doctor is just treated as doing his work?
I don’t go in thinking of danger because the law says I’m entitled to do what I do in the same way that any other professional is entitled to.
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I get surprised when it becomes dangerous because I go in not expecting danger.
I go in on the basis that the constitution says you have a right to have a lawyer of your own choice and a lawyer should have the freedom to work the best way they know how.
TN: And let’s look at a couple of cases just to help tell your story. You fought for the freedom of a number of journalists and prominent among them were Andrew Meldrum from the Guardian, Julian Simon from the London Sunday Telegraph. Tell us about your experiences and the lesson you got from that.
BM: The importance of media freedom is completely underestimated. For me, it is one of the core freedoms.
You can talk about democracy, but if you can’t spread the word through the media, it’s completely pointless.
And you cannot talk about democracy without people being able to interrogate what you are talking about.
So media freedom is at the core of democracy and should be defended with everything that we have.
Andrew Meldrum was the first to be prosecuted under (the Access to Information and Protection of Privacy Act) and it was a case that attracted a lot of attention internationally because everybody had complained about this law being draconian and now we were seeing it in actual practise and it was very stressful in that you know we were in the glare of everybody to see how this case would go.
And I am glad that I can say that the magistrates, who hear most of our cases do a wonderful job, but they hardly ever get mentioned as having been really the drivers of this.
If Andrew had been prosecuted at the superior court I am absolutely certain that he would have been convicted, but at the magistrates court level he was actually acquitted, which actually says a lot about our judiciary, especially at that level.
TN: What does it say about our judiciary system if at magistrate level its okay, but a supreme court is questionable?
BM: Well, I say it is completely pointless to capture the little people down there. So if you want to capture you capture people at a level where they make a whole lot of difference.
I mean we know that our judiciary particularly at the time this case was heard was completely compromised and we had just had a judiciary kicked out of office and new people brought in.
So it was a very tense time in terms of the judiciary and for me it was great that the magistrates were never actually seen as people who ought to have been captured, but we are slowly having a situation where magistrates are now being allocated cases not because they are in that court, but because they are dragged from some other places to hear a particular case because they are trusted. We are seeing a whole lot of that.
TN: So the capture is coming down to the magistrate level, is that what you are saying?
BM: It is now coming down to the magistrate court level. I remember for instance when I was arrested, the magistrate who was supposed to be in my court was taken out and a different magistrate was brought in.
I knew immediately that I was not getting bail at my first hearing because of that change and even for trial purposes when the case was allocated to a particular magistrate I knew that I was going to be convicted.
So we had to do everything possible to make sure that he had to recuse himself and we were able to actually make the person, who I was representing when I was arrested, appear before him give evidence of what happened and we were able to say since you heard this evidence, which I’m going to say and you have rejected it, you cannot hear the case.
He had no choice, but to recuse himself. That’s how I ended up before a magistrate, who basically happened to be in that court.
TN: Has the situation changed now, is it worse or better?
BM: I don’t think we can say the situation has changed because even by just looking at the corruption cases that are being taken you see that they are being taken to the same magistrates.
Is it a coincidence that the same magistrates are hearing the same cases over and over again?
Is it a coincidence that suddenly they are all refusing with passports because the law says you are innocent until proven guilty?
You are being refused a passport to go for medical attention when not so long ago people were getting their passports to go for medical attention.
Is it a coincidence that a court gives you back the passport but someone completely out of the system comes and grabs that passport from you at the airport and that is accepted?
It is actually getting worse and it will get worse as long as those who interfere with due process and due administration of justice are allowed to be a law unto themselves.
TN: What role do the judges and magistrates have to play, should they not be speaking out?
BM: In fact, if I was a judiciary officer and I made an order releasing a passport and I find the passport back in my court without any due legal process, I wouldn’t believe it and I would refuse it because it completely undermines your power as a court.
It completely means that you are not a judge or a magistrate, you make no decisions that we will respect if we don’t like those decisions and it goes to the core of the separation of powers.
Nobody from the streets can just go to the airport and take a passport from a person that has been given the passport by a court unless they have power behind them, unless they are protected.
TN: So there is a big question mark on separation of powers?
BM: Absolutely, no question about that.
TN: What do we do about that?
BM: There have to be political will to respect each branch of government.
Unfortunately all our branches are stand-alone entities, are not very strong.
You go to Parliament for instance, Parliament has allowed a system to continue where we are literally run by statutory instruments and directives.
In fact, this week it’s surprising that we have not had a statutory instrument.
It’s like, wow its Thursday and there is no statutory instrument!
Parliament is failing to play its oversight role. Parliament sucks up to the executive, which they shouldn’t do and it follows that when that happens the judiciary follows suit.
When you get a chief justice saying the president has a discretion to refuse a list given to him by the Judiciary Services Commission as to who to appoint you know that you are in trouble because that is not what the constitution makers intended.
That is not how the constitution should be interpreted and that is not what the constitution says.
TN: So we are in trouble?
BM: We are in trouble until each one of the three branches of government decides to really play their role as standalone entities and say we are not here to dance to the music of the executive and the judiciary says we are sorry, once the law is in our courts we interpret it the way we see it, the politics of the law remains outside.
TN: Let’s move to another big case, you took charge of challenging the results in 37 seats after the 2000 parliamentary election. That must have been daunting, what lessons did you get from that?
BM: I didn’t do it alone. I had Selby Hwacha helping me because we were in the same firm and we helped each other.
The problem was that we had so little time to file so many petitions in a very diverse environment and it was extremely difficult in that to get the instruction from a client from Mberengwa and get all the statements in time to file was extremely difficult.
So we had to kind of improvise and then supplement as we went along.
We had the cases go to court and again it was quite clear that the decision had been to stall the hearing of the applications until the next election.
The one or two that were heard successfully, there were appeals and again the appeals were stalled until the next election so that the petition is rendered academic.
So the lessons that came out of there was to give the timeframes that it must be done in such a period and within such a time and determine within such a time and those were the lessons learnt.
But unfortunately although there are those timeframes, I don’t think the judiciary is playing its role in ensuring that things are done and heard timeously.
For me, it is a scandal that more than 12 months after the epic case — the challenge the Constitutional Court (ConCourt) heard on the presidential election, we still do not know the reasons (behind the judgement).
Why is the ConCourt not being exemplary? Why is it taking so long?
We had judges hearing a similar important case in England on Brexit and within 10 days the judgment was out and the reasons are known.
So why is it taking so long for so judges to write something that the whole nation is waiting for?
TN: So what should we do on that particular case?
BM: I think as lawyers we are not doing enough to put pressure because our colleagues in Namibia went to court to force the court to deliver judgment and it was interesting because the justice they were compelling has since been elevated to the position of the chief justice and he did give judgement a day before the case was to be argued.
TN: But do we have to go through that?
BM: You see the JSC interviewing potential judges emphasising on the need to dispense justice speedily and you will think that the people who are asking those questions are going to do the same when it comes to them.
The best thing to do really is being the example.
If the magistrates and the judges in the High Court and the Labour Court are to be conscientious and deliver judgments timeously they must see the Constitutional Court and the Supreme Court doing the same.
TN: So, it appears from what you are saying that we have a deficit of accountability, trust. We have talked about the magistrates, the higher courts, Supreme Court and ConCourt, the institutions are not performing their task. What should the citizens do?
BM: I think the oversight institutions must be taken to task.
TN: By who?
BM: By the citizens. I think there is this tendency to think that only lawyers should be taking these things up. Citizens should go to court to say this is not proper.
TN: Why are the citizens not doing that?
BM: Some do, but the access also to the Constitutional Court for those who try is so difficult. The intention to have an open court and an open justice has been defeated.
To get to the ConCourt you might need to get leave and that leave is not given by all the judges, that leave is given by one judge.
If this is a constitutional matter surely constitutional makers did not envisage that a single judge can sit in his chambers and determine whether or not you should have access to the Constitutional Court.
The constitution says everyone has a right to access to the court.
I can give an example of what happened when we had that very same presidential petition.
There were lots of people and other entities that were cited as respondents in that case and they filed their responses in support of the petition and the chief justice called everybody into his chambers and said ‘you are only allowed to file if you are against and not when you are in support.
‘If you do not withdraw, I will order costs against you on a punitive scale’. That is completely unheard of.
If I want to support you in your application and I am cited as a respondent why should the chief justice stop that?
Does he have the power to do that? Should that decision not be made by the entire bench?
Once you have those little restrictions, it really means that certain cases will never see the light of day because they will be blocked at the first instance and that is extremely discouraging not just to the lawyers but to the citizens at large.
TN: But one would have thought that those people that went into the room should have perseverance?
BM: The costs can be quite astronomical and generally in constitutionalism you do not use courts to threaten people not to assert their rights.
Even when you lose generally in constitutional matters there ought to be no order as to costs because of the constitutional importance of the matter that you might have raised, because of the public interest factor.
Otherwise people are not going to bring challenges because they fear costs.
TN: Let’s move on to the other issue, the case that you handled, which is perhaps in my view one of the toughest that you have had to deal with, which is the Jestina Mukoko case. Tell us about that experience again and lessons.
BM: That was a very, very emotional case. It needed innovation after I got the call that morning that she had been abducted and a report had already been made at Norton Police Station. We immediately brought an application for her to be produced by the police because the persons who abducted her claimed to be police.
So, the police came and said we didn’t do it. We are actually treating this as a criminal abduction and we are searching for her.
We said since we are on the same page with the police, could we have an order by consent or look for her together, working closely together because we know what happens to people who are abducted and it was at the time extremely difficult to get advertisements in the state media to ask who had seen her.
The police agreed to that and I think probably that is what helped because we then used that court order to make sure that we put adverts because the police wouldn’t do that and ask people who knew where she was to phone in.
It was interesting because by that morning the The Sunday Mail had agreed to put in the advert if we paid in forex, which at that time was something else.
And it is interesting how calls started coming in and the interesting thing was that they pointed at the same place.
TN: Which was?
BM: I am not going to say that because I might compromise some certain people.
TN: Okay.
BM: But it’s incredible how the public even within the system does not like what is happening because most of the information we got it from the people from within.
So there can be no question that this was a state-sponsored thing even where she was being held, the people who held her are known.
And the sad thing is nothing has happened to them. We went to court to get damages for her unlawful detention, unlawful arrest et cetera, but who pays damages? You and me.
TN: The taxpayers?
BM: Yes. The actual culprits have gotten away with it.
TN: We know these culprits?
BM: Absolutely, they are known.
TN: They are in the system?
BM: Yes they are in the system and most of them have been promoted. So basically you get rewarded for breaking the law.
TN: Have they been named?
BM: In some of the court proceedings, yes they have been
TN: Are you at liberty to share them here?
BM: Not really, not without Jestina’s authority.
TN: But she knows these people?
BM: Yes, she does.
TN: Sad. What’s your view on the current reported abductions?
BM: Well, I mean when you have impunity of course, it’s going to continue because the people who have been doing the abductions or the unit that does the abductions remains in place and they know that whether they know I am the abductor or not, nothing is going to happen to them. So, impunity is our biggest problem.
TN: What view do you take of some people who think there is a third force? There are some people who think that there are rogue elements. Some people think that it is organised. Where do you stand as far as these are concerned?
BM: The current abductions are not different from the ones that have happened before.
If there is a third force, it means there has always been a third force.
But if there is a third force and you know who are in the third force why not deal with them?
It will be a bad indictment on our law enforcement agents if they say they cannot investigate and find out who are in the third force.
So my view is this is part of an organised process that has been there for as long as I can remember and its members know that they are not subject to the law because they have protection.
If there is a third force, it is the third force within the system and the system must then deal with them because it will mean you and I are not safe if our law enforcement agents cannot find who is doing this.
TN: None of us is safe?
BM: Yes, nobody can be safe if they can’t find who the abductors are.
TN: What’s the intention?
BM: You will see that they don’t just come and abduct someone who is quietly going about their business.
You will see that all those who have been abducted have been prominent in speaking out.
So clearly, that has been an orchestrated abduction, without doubt.
The intention is to say to you and I, if you do what Gonyeti [Samantha Kureya] does and clothe it in satire you could very well be part of this.
If you think you can stand up for doctors and be the Dr (Peter) Magombeyi you could very well be abducted.
So fewer and fewer people will want to be the face of any struggle.
Fewer and fewer people will want stand up and say no, we won’t have this, this is not how things should be done. We all have rights.
If you are an employee you have labour rights that entitle you to withdraw your labour, you shouldn’t be abducted for withdrawing your labour.
TN: Do you fear being abducted? There have been attempts to get you back to Swaziland. Are you worried about that?
BM: Well, nobody knows who is going to get abducted and if I went about looking over my shoulder then I simply wouldn’t be able to work.
My view is that what will be, will be. When it will happen, what will happen is completely out of my hands. If there is one thing I can’t change is when, how and by whose hand I will die.
So I can’t go with my life looking at my shoulder, because I am scared that someone might abduct me.
TN: You are a brave person, where do you get the courage? Where do you get the inspiration to continue to do what you do?
BM: I actually, don’t consider myself brave. I consider myself a slave to the constitution.
It gives me certain powers and I am not going to take them in half measures.
If I am allowed to do what I do, I will do it because we are told that the constitution is the supreme law in the land.
So, if the supreme law says I can be a lawyer and do what I do, I am not going to stop doing it because someone might think I should not do it in a certain way.
And for me interestingly, when the very same people who regard my work as controversial get into trouble you would be surprised how many of them call me.
You will be extremely surprised and you then hear them saying we don’t trust the other lawyers because they can’t stand up to the system.
So they know that you are just doing your wok.
TN: And they harass you, but when they get into trouble they call you?
BM: They want me to represent them.
TN: What keeps you going? What encourages you?
BM: Nothing actually beats helping someone get justice where otherwise there wouldn’t have been able to get it.
And you can’t compensate it with money because most of the cases I handle there is hardly any money to be made.
But to be able to say it is possible that I was one of the small cog that’s saved Jestina’s life, it’s worth doing.
To be able to get someone out of prison, when I was locked up in Chikurubi [Maximum Security Prison] and I was like I don’t know how long I am going to be here for and I said to the officer in charge give me a pen and paper and a list of who has been here for longest and they allowed me to do that.
And I got out of jail and I was able to bail-out about 12 to 13 women from prison because they had been forgotten there.
I didn’t get to Chikurubi and start thinking, oh my God.
TN: This is amazing so you took advantage of your being in prison.
BM: To do justice to other people who were there.
For me it was like God took me there to be able to see the conditions in prison, to help some of these women to get out.
And if it was allowed and I think every lawyer should go to prison to experience what it is like. It’s important to know what happens to your clients when they go behind that door at the court and they are set to go to Chikurubi.
If you been there you will start practicing your law a little differently because you don’t want them to be there.
