In the first part of his International Rule of Law Lecture to the Bar of England and Wales that we published last week, former Zimbabwe Chief Justice Anthony Gubbay posited that the colllapse of the rule of law began almost immediately after the countrys 1980 independence from Britain.
In this second segment Gubbay details how the writing was on the wall so many years ago only no one noticed. Gubbays recount of President Robert Mugabes 1982 decalaration that his government would not allow the technicalities of the law to fetter its hands leaves one wondering whether history might have taken a different course had Zimbabweans paid more attention to that statement of intent:
In the early years of independence the main area of conflict between the judiciary and the executive involved cases of detention without trial; that is, a deprivation of liberty permitted, subject to certain conditions under the law of Zimbabwe, during a declared period of public emergency.
The state of emergency, which had been declared by the Smith government at its unilateral declaration of independence on 11 November 1965 and extended repeatedly every six months, was kept in force by the new government for ten years.
The first blatant failure to comply with court orders occurred in the case of the York brothers. In January 1982, two farmers, the York brothers, were arrested and charged with the illegal possession of arms of war. The states most important witness left the country before the trial.
A statement made by one of the accused to the police, apparently admitting the crime, was ruled by the trial court to be inadmissible, because it had been made as a result of police threats to arrest his family. The state case collapsed and the brothers were acquitted.
The government, however, ordered their immediate detention. The High Court held that the detention was illegal as the state had failed to comply with the conditions of detention. The brothers were then re-detained on fresh detention orders, but had to be released a second time as the orders still did not comply with the necessary conditions. Again they were re-detained in terms of new orders.
It was only after this third attempt that the High Court ruled that the detention orders were validly made. The spurious reasoning advanced was that they were being held under investigative detention as opposed to preventive detention. Hence those rights guaranteed by the Constitution as applicable to preventive detention were not available to the detainees. Not unexpectedly this decision was criticised as being an exercise in semantics.
On the plain facts there was no conflict between the executive and the judiciary. The minister of home affairs, responsible for the police, had made a series of mistakes, and the courts were unable to uphold the detentions until those mistakes had been rectified.
However, a statement made by the minister to the court during the second detention hearing, declaring that no information would be forthcoming as to where the detainees were being held, even in the face of a court order to that effect, was indicative of just such a conflict.
The same minister, speaking in parliament, accused the judiciary of dispensing injustice by handing down perverted pieces of judgment which smack of subverting the peoples government. He went on to attack the legal profession as a whole in the following paranoid terms:
We are aware that certain legal practitioners are in receipt of moneys as paid hirelings, from governments hostile to our own order, in the process of seeking to destabilise us, to create a state of anarchy through the inherited legal apparatus.
We promise to handle such lawyers using the appropriate technology that exists in our law and order section. This should succeed in breaking up the unholy alliance between the negative bench, the reactionary legal practitioners and governments hostile to us, some of whose representatives are in this country.
The statement clearly represented a threat to both the independence of the judiciary and the rule of law. Members of the law society met the minister of justice to express their concern. The Chief Justice, after consulting the minister of justice, also issued a statement expressing concern at the attack upon the judiciary and the legal profession.
The minister of justice himself put out a press release to the effect that the government recognised the role which an independent judiciary is to play in the sustenance of democratic order; and that it was governments belief that the executive and judiciary should complement each other in the fulfilment of their functions.
Although the statement of the minister of justice contained much that could be seen as recognising and supporting the independence and effectiveness of the judiciary, confusion remained as to the exact nature of the governments position on the issue. This was because a few days earlier Prime Minister Mugabe had said in parliament:
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 as fitting; and some of the measurers we shall take are measures which will be extra legal.
Taking extra-legal measures meant disobeying the law. The words clearly conveyed that it was governments policy to disobey the law whenever it considered such disobedience necessary for the preservation of law and order.
With the knowledge of hindsight, I do not believe that this criticism and disobedience of the judiciary by the executive can be dismissed as mere teething trouble as the manifestation of a newly elected government flexing its muscles after emerging from a lengthy period of oppression under white minority rule.
Six white officers
A further controversial episode occurred in 1983, when six white officers of the Zimbabwe air force were charged with being involved in a serious sabotage attack on an air force base. The only evidence against them was signed confessions which they alleged were obtained as a result of torture.
The trial judge found that all the accused were denied access to their legal representatives prior to making the confessions; and also that the confessions were made as a result of fear after sustained physical and mental torture.
Accordingly, he held that the confessions were inadmissible, and the accused were acquitted. They were placed in preventive detention immediately upon release, but only for a short period. They were then deported from the country.
An appeal by the attorney-general to the Supreme Court which, as it happened, was comprised of three white judges, all appointed prior to 1980 (I was one of them), was dismissed. That decision was condemned by the minister of home affairs. He accused the judges of class bias and racism. No contradiction of that false statement was made by any other minister, or by the attorney-general.
There is little doubt that during this early period the frequent use of detention without trial, both in instances where the courts had previously acquitted the detainees, and to circumvent the judicial process, amounted to an erosion of the rule of law. So did the governments stance in simply ignoring court orders to pay damages to victims (considered to be political enemies) of human rights violations.
Since the State Liabilities Act prohibits execution, or attachment or process in the nature thereof, against state property, there is no legal remedy against such refusal. Furthermore, damage awards cannot be enforced through contempt orders. Thus, whether or not to compensate is left to the states discretion.
Parly vs Supreme Court
In 1988 the case that brought the judiciary into conflict with the legislature was that involving the former prime minister of Rhodesia, Ian Smith.
The facts were simply that, as a member of parliament, Smith had been found guilty of contempt of parliament in respect of utterances he had made in South Africa in support of apartheid policies, and in opposition to the imposition of economic sanctions against South Africa.
He was suspended from service of parliament for one year and, in addition, declared disentitled to receive salary and allowances during that period. Smith applied to the High Court for an order declaring unlawful the punishment depriving him of his remuneration.
At the hearing, the speaker produced a certificate which sought to stay the proceedings on the ground of parliamentary privilege. The High Court came to the conclusion that the speakers certificate was conclusive and stayed the proceedings. On appeal, the Supreme Court had no hesitation in holding the decision to be wrong.
First, it was pointed out that when a certificate from the speaker is produced, stating that the matter is one of parliamentary privilege, the court must examine the certificate in order to establish the legitimacy of the privilege claimed; and secondly, that the monetary deprivation imposed was illegal and in conflict with the Constitution. That part of the punishment (but not the suspension) was set aside.
The speaker was furious. He refused to recognise and give effect to the Supreme Court judgment. He maintained that no court of law can question a decision made by parliament. He said that he would not pay Smith unless parliament reversed its decision to suspend him without pay.
He suggested that parliament might have to liberate itself from the Supreme Court judges; that the judiciary should not interfere with the legislature because the legislature in all Commonwealth countries is supreme.
These statements could not be allowed to go unchallenged. The Supreme Court judges, the Bar Council and the Law Society, expressed concern at the attitude of the speaker which sought to undermine the authority of the court. It was said:
The judiciary is the watchdog of the countrys constitution. If the legislature or the executive can disregard it at will, there is no way that the peoples rights can be guaranteed. We may as well tear up that document we call our constitution.
It was only after he had sought and obtained the authority of parliament that the speaker paid Smith. He refused to back down. So the conflict was finally resolved.
Clearly, the gravest abuse of law and order, during the first decade of the countrys independence, occurred in the Matabeleland and Midlands provinces.
A purported threat of dissident ex-guerrilla fighters led to a counter-insurgency war, commonly known as the Gukurahundi (the word refers to the first rain of summer that washes away the chaff from the previous season).
In official operations by the national armys notorious North Korean trained fifth brigade, which was directly responsible to Robert Mugabe, several thousands of innocent civilians were massacred or simply disappeared. Some estimates put the number at up to 10 000 civilians.
Thousands more were arbitrarily detained, brutally assaulted and often tortured. In a 1982 speech to parliament, Mugabe accurately presaged the violence in these words: An eye for an eye and an ear for an ear may not be adequate in our circumstances. We might very well demand two ears for one ear and two eyes for one eye.
For the initial ten year of its life the Declaration of Rights in the Constitution of Zimbabwe could only amended by a unanimous vote in parliament.
Not surprisingly there were no amendments to any of the rights provisions. From 11 May 1990, however, amendments to the Declaration of Rights, as well as any other provision of the Constitution, may be passed upon a vote by two-thirds of the members of parliament.
During the period 1991-2000 the parliament of Zimbabwe passed several amendments to the Declaration of Rights to the disadvantage of the individual. In early 1991 parliament passed Constitution of Zimbabwe Amendment (No.11).
Two saving provisions were added to section 15 (1) (the protection against inhuman or degrading punishment or other such treatment). The first enacts that corporal punishment inflicted upon a male under the age of eighteen years shall not be held to be inhuman or degrading.
This amendment effectively overruled the decision of the Supreme Court. It also runs counter to article 5 of the African Charter of Human and Peoples rights and to the United Nations Convention on the Rights of the Child.
The second provision specifically allows sentence of death to be carried out by the method of hanging. The reason for this amendment was that the Supreme Court had been due to hear a test case in which argument was to be presented on the question of whether execution by hanging was a violation of section 15 (1).
Both the State and the defence had been required to adduce evidence as to the reliability of the various procedures and precautions adopted in execution by hanging; and to address the physical pain and mental anguish to which the condemned person is subjected by such method. The amendment pre-empted the court from deciding the controversial issue.
The minister of justice announced to parliament that the amendment was necessary in order to prevent the Supreme Court from doing away with the death sentence (a punishment sanctioned under the Constitution) via the back door.
The eleventh amendment also altered section 16, the protection against deprivation of property without compensation. It reduced the amount payable in the event of expropriation from adequate compensation payable promptly to fair compensation payable within a reasonable time. It also removed the right of an expropriatee to challenge in a court of law the fairness of any compensation awarded.
In 1993 parliament passed a further amendment to section 15 (1) in order to overcome the Supreme Court judgment that an inordinate delay in carrying out a death sentence amounted to inhuman treatment.
Constitutional Amendment Act (No. 14), promulgated on 6 December 1996, amends section 22 (which had been interpreted by the Supreme Court to permit the foreign husband of a Zimbabwean citizen to reside permanently in the country, and engage in employment or other gainful activity), so as to grant neither foreign husbands nor foreign wives, of citizens, residence as of right in Zimbabwe by virtue of marriage.
On 19 April 2000, just two months before the general election was due to be held, Constitutional Amendment Act (No. 16) was passed.
Whereas previously the owner of agricultural land compulsorily acquired for resettlement of people had to be compensated, the amendment spelt out that such obligation no longer pertained; it was the exclusive responsibility of the former colonial power to do so.
This provision, read in context, refers to compensation with respect to the soil. It does not absolve the government from liability to compensate for improvements effected upon the land, though, unfairly, such compensation may be paid in instalments over a period of time.
But the ultimate prohibition of access by commercial farmers to the courts came in the form of Constitutional Amendment Act (No.17), promulgated on 14 September 2005. It effectively vests the ownership of agricultural land, compulsorily acquired for resettlement purposes in conformity with the land reform programme, in the state; and ousts the jurisdiction of the courts to entertain any challenge concerning such acquisition.
Constitutional Amendments 16 &17 have been roundly, and aptly, condemned as being: …without modern parallel in any constitutional democracy worthy of its name.
They set Zimbabwe apart from all member states of SADC, the British Commonwealth and the African Union, which function as constitutional democracies. They violate Zimbabwes international law obligations, most immediately through its membership of the African Union.
They entail the abrogation of constitutionalism and elevate the fiat of the executive and legislature over the entrenched core provisions of the Constitution. They certify the existence of a totalitarian state.
Editors Note: Excerpt from a paper titled The progressive erosion of the rule of law in independent Zimbabwe presented by the countrys former Chief Justice Anthony Gubbay to the Bar of England and Wales, Inner Temple Hall, London. The paper was presented on December 9, 2009. (To be continued)Post published in: Opinions