A Place in the Sun

Zimbabwe_photo1Desmond Browne QC discusses the rule of law in Zimbabwe today. In June 2010 Lord Steel hosted the launch at the House of Lords of “A Place in the Sun”, the report of a mission to Zimbabwe last autumn led by Mohamed Husain, the South African President of the Commonwealth Lawyers Association and myself. Accompanying us were members of the Bar Human Rights Committee (“BHRC”) (including Andrew Moran QC of Serle Court who wrote the report), and Dutch and Flemish members of Avocats Sans Frontières.

It was not the first such report. In April 2004 five leaders of the Bar from around the world visited Zimbabwe and returned with a story of judges being driven from office or corrupted, and of a legal system subverted by the ZANU-PF government to frustrate the proper working of democracy and to cling on to power.

Last year, Mark Muller QC, Chairman of the BHRC, proposed a second visit. We wanted to see how effective the Transitional Government combining ZANU-PF and MDC Ministers had been in realising the aspirations of the Short Term Emergency Recovery Plan (“STERP”) published in March 2009.

The title of our report comes from STERP, whose avowed outcome was to go beyond the mere rehabilitation of the Zimbabwean economy, and “lay the foundation of a basic African state that will find its place in the sun, play its role in the Southern African Development Community (‘SADC’), the African Union and the rest of the world”.

Driving into Harare with the jacaranda flowers dropping from the trees, we must all have wondered whether we had come at a good time or bad. The answer was both: it was a good time to understand the scale of the problems confronting the former bread-basket of Africa, but a bad time for the people of Zimbabwe. The previous week Morgan Tsvangirai, the Movement for Democratic Change (“MDC”) Prime Minister, had partially disengaged from the Unity Government. Amongst his causes for concern was the recent indictment on terrorism charges of the MDC nominee as deputy Agriculture Minister, Roy Bennett, a white Shona-speaking farmer and MP with a rural black electorate.

The future for Zimbabwe?

If our weekly diary (see p 36) represents the present state of Zimbabwe, what of the future? The former Chief Justice, Anthony Gubbay, who resigned in March 2001 after his court was invaded by a mob, saw little cause for optimism. Nor does Beatrice Mtetwa, another former President of the Law Society. Speaking in March this year about the evidence that Zimbabwe’s judges and prosecutors are (with notable exceptions) taking orders from ZANU-PF, she said: “it has never been as bad as it is now”.

The acquittal of Roy Bennett on 10 May was a cause for some relief. In the current climate, one can readily understand why Mr Bennett said he did not expect it. As Morgan Tsvangirai told us when we met in the Prime Minister’s office, he had been not so much prosecuted as persecuted. Meantime the Attorney General has applied for leave to appeal, a step which prevents Mr Bennett from taking up his ministerial office.

A particular concern of Mr Tsvangirai is to see the Zimbabwean judiciary “independent again”. At present nearly all the judges are hopelessly compromised by the fact that they have been provided with farms on licences, and those licences are terminable by the government at will.

Mr Tsvangirai also emphasised his desire to see the Zimbabwean courts recognise the judgments of the SADC Tribunal. In no case is this more important than that of Mike Campbell, the mango farmer unlawfully thrown off his land, who is the subject of the widely seen documentary film “Mugabe and the White African”. Having submitted to the SADC’s jurisdiction and appointed a judge to the Tribunal, when the judgment went against it, the government started to argue that the ruling had no status in Zimbabwe. Indeed, in January 2009 the Chief Magistrate instructed his subordinates that they were to treat the ruling as “not binding” in land cases.

A depressing picture

If any doubt remains about the lack of commitment of ZANU-PF ministers to the rule of law, one need only consider the recent advice by Didymus Mutasa to a group of squatters on a coffee plantation in Chipinge that they ignore a court ruling to vacate the land. On 15 June the South African Bar Council said that it had learnt of this episode “with shock and dismay”. It urged the government “to take corrective action to avoid a total collapse of the judicial system in Zimbabwe.”

Is there any good news?

With the culture of impunity on the part of the police, the army and the security service having taken such hold in Zimbabwe, our mission viewed with all the greater admiration the many courageous lawyers and civil society groups, who show by their daily lives that they still view the rule of law as integral to a democracy. If anyone can heal the wounds the country has suffered, they can. Fortunately it is they who ensure that the legal infra-structure remains in place, so that in more propitious political conditions the rule of law could once again flourish.

Following the collapse of legal aid, access to justice is virtually non-existent. Noble work is done by independent organisations such as the Legal Resources Foundation and Zimbabwe Lawyers for Human Rights, but they deserve the financial support they currently lack. Looking to a future generation of human rights lawyers, it was depressing to see the dilapidated state of the Law Faculty at the University of Zimbabwe, but uplifting to see the fearless dedication of its staff. SADC and the international community (in particular, the UK) urgently needs to see that financial and institutional aid is targeted at those bodies managing to keep alive respect for the rule of law. And we in the profession must do all we can to help.

Desmond Browne QC, Joint Head of Chambers at 5RB, is the immediate past Chairman of the Bar Council and a leader of the delegation to Zimbabwe.

 

A daily diary

A daily diary of the week of our visit gives some idea of the current state of the rule of law in Zimbabwe:

Saturday 24 October: The Legal Aid Directorate announced that it was on the brink of collapse because of lack of funding. So dire were the problems that money was not even available for bus fares for officers of the Directorate to travel out of Harare.

Sunday 25: The Chairman and Chief Executive of the National Association of Non-Governmental Organisations, the umbrella organisation for the country’s charities, were arrested travelling to a government-organised conference in Victoria Falls on the subject (ironically) of access to justice. They were held in custody for two days on a charge of attending a public meeting not authorised by the police.

Monday 26: Because the MDC were not willing to attend the regular Tuesday Cabinet meetings, Mr Mugabe and Mr Tsvangirai met face to face, but failed to resolve the deadlock.

Tuesday 27: An attempt was made to abduct the MDC Security Administrator on a street in Harare by men who bludgeoned her with AK 47s and tried to force her into a car. A well-built woman, she managed to fight off her assailants with the aid of passers-by. At a press conference later that day we saw her abrasions for ourselves.

Wednesday 28: The UN Special Rapporteur on Torture, Dr Manfred Novak, was detained on arrival at Harare Airport, and kept overnight before being placed on the first plane back to Johannesburg. According to Dr Novak, he had received alarming reports of intimidation and torture in rural areas.

Thursday 29: We travelled to Mutare on the Mozambique border to speak to a group of some 16 lawyers, each of whom had suffered harassment and sometimes arrest in the course of their work. When the meeting was over, one of the participants told me that she had fully expected it to be broken up by the Central Intelligence Organisation.

This was far from alarmist – one of the lawyers we spoke to, Mordecai Mahlangu, a former President of the Law Society, was arrested in Harare on 2 November and kept in custody overnight. His offence had been to tell the Attorney General that his client would not be giving evidence against Roy Bennett in accordance with a statement acknowledged to have been extracted under torture. Just as remarkable, in March 2009 police had arrested a Mutare magistrate for criminal abuse of office, after he had granted Mr Bennett bail.

Friday 30: Two black farm workers and a child were shot and severely wounded at a farm north of Harare, when so-called “war veterans” invaded a white-owned farm and burnt eight of the workers’ homes.

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