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"WHAT HAPPENED TO THE RULE OF LAW IN ZIMBABWE???"

"WHAT HAPPENED TO THE RULE OF LAW IN ZIMBABWE???"
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Friday, 8 January 2010

"WHAT HAPPENED TO THE RULE OF LAW IN ZIMBABWE!" by TAFI PAPAYA.


What Happened To The Rule Of Law In Zimbabwe

By Tafi Papaya

            The rule of law is probably the most important pillar of any democratic society.  It has been one of the reasons why a lot of the countries that are economically succesful, and politically stable have prospered. There is no point in having a society of individuals that have done a good job of creating good laws; if nobody enforces them. I believe and aim to show that the lack of rule of law has been detrimental to the success of Zimbabwe.

            Rule of law is a key determinant of how democratic a society is. It is a benchmark by which societies measure their constitutionality, and their adherance to the spirit of the law. The rule of law is essential for keeping the power of the government in check. It is the basis for protecting the individual from the powers of state, and it is good for ensuring that property is kept safe.

            It is important because it ensures equality for all in the state. The law is applied indescrimantly to everybody, and everybody is subject to the law not the principles, ideas and attitudes of the state.

            One way those that abuse the rule of law is that they adhere to the letter of the law religiously; but do not care about the spirit of it. Therefore creating an environment of unfairness when the point of law is fairness.

            The law does not simply exist as an ends to its own. The law is simply a vehicle for a higher and more powerful concept and that is justice. The reasons we have laws is so that we can transmit justice in a large and complex society. The law is our means and justice is our ends. Unfortunately due to the nature of the human condition; at times justice and law sometimes tend to diverge. These kinds of divergences must be allowed to be the exception; because if these divergences become more than just exceptions they will come to be normal and accepted. If this happens injustice will most definitely prevail and that is not good.

            Injustice does not prevail smoothly. In countries where there is a lot of injustice there tends to be a lack of stability. Injustice simply does not prevail even if it driven by law; it is too much of a blight on the human spirit and people do not support it. If one looks at legal forms of injustice like slavery in the US, and colonialism in the third world they simply have not prvailed. They lasted for a long time, but the undying human spirit rose and smited injustice.

            Justice is the most clear cut pillar of law and without justice law is just a platitude. For example in Jackson Missouri lives a woman called Debbie Shank. An honest hardworking woman and the mother of 18 year old Jeremy Shank who was killed in Iraq. Eight years ago she had a car accident with a negligent semi driver; where she became mentally disabled and required a lot of financial help. At that point the now 52 year old lady was a stock shelver at Walmart; where she was enroled in their medical  insurance plan and was a very conscienscious client.(Kaye)

            Walmart paid out $470 000 through its insurance plan for her healthcare, and two years later she won a lawsuit for $417  000 from the trucking company. Now Walmart was asking for all of the $470 000 back; because its health insurance plan has a clause which says that if the patient recieves a settlement in a lawsuit; the company can take its money back. The $ 417 000 lawsuit settlement was put in trust for Debbie. When Walmart sued, the courts awarded them a settlement of whatever was left in the trust; meaning that Debbie would literally have no money to take care of her.(Kaye)

            If we are simply talking about justice; can we say that the Walmart loop hole was fair? Is it fair that someone spends so much of their paycheck to get coverage ;and they do not get any money because someone else paid for it. So all the time, effort and money put into getting good coverage should go for naught. How could that possibly be fair, and in the spirit of the law which adheres to the principles of justice.(Kaye)

            The public reacted very angrily to this sort of treatment of an individual. It became a public relations nightmare for Walmart to add the the bad corporate image that the company already has. The moral precedent of justice seemed to not be adhered to in this case, and there was an incredible societal backlash. Even though the letter of the law was clearly on the side of Walmart executives; the spirit of the law was not. That is why there is a strong case for judges; people who can act for advocates of the spirit of the law when the letter of the law is in not fair. However with most things human the nature of some of these conflicts are often not even close to being black and white.

            For example the legislature, administration and judiciary of the Republic of Zimbabwe are independent entities as in any democracy. The supreme court justices who are the top judges in the land are appointed by the President. Under certain extenuating circumstances he can take them off the bench. In 2001 President Robert Mugabe dismissed Supreme Court Sir Anthony Gubbay because of allegations of treason that were never proved and are still to be proven. In fact they were just allegations which were not based in any evidence. Even though the letter of the law says that he can do that. In a democracy that subscribes to the rule of law somebody is innocent until proven guilty. The spirit of the law was definitely not adhered to in this case.(Afrol May,5)

            The result was the country lost a Chief Justice that would challenge the authority of the President. In his place came in one that is known for his allegiance to the President's party. So the law can be manipulated by those in power in an effort to meet their ends. If a country does not have a strong precedent for adhering to the spirit of the law tragic situations can happen as the one in the Zimbabwean government.

            There is a fundemental belief in the constitution of Zimbabwe and that is a belief in the independence of the three pillars of government the legislature the judiciary and the executive. The executive is to control vehicles that the judiciary and the the legislature should be entitled to access and use to perform such independent tasks.

             Chapter five Part four of the Zimbabwean Constitution says

The President—

(a)        may at any time address Parliament; and

(b)        shall have the right to sit and speak in Parliament but shall not have the right to vote therein.

(The Constitution of Zimbabwe)

 

This is a clear indicator that the process and the independence of the parliament was clearly not meant to be tampered with by the executive.

Chapter eight of the Constitution says

 

In the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority, except to the extent that a written law may place him under the direction or control of another member of the judiciary

(The Constitution of Zimbabwe)

 

Clearly establishing and protecting the independence of the judiciary.

Part three of chapter four says

 

It shall be the duty of the President to uphold this Constitution and ensure that the provisions of this Constitution and of all other laws in force in Zimbabwe are faithfully executed.

(The Constitution of Zimbabwe)

 

            This clearly limits the roles and powers of the president to a great deal. So with this in mind why is it that the President of Zimbabwe uses tactics that are contrary to these ideals. Since independence in 1980 Robert Mugabe has used Parliament as a rubber stamping institution; to give legitimacy to his agenda however misguided. For a while the country thought the judiciary would be free of Mugabe's meddlesome hands. This only lasted until the millennium when Mugabe went haywire on the judiciary.

            In a lot of Western countries the legislature is a lot more independent than the one in Zimbabwe; because the legislature was designed in a practical measure to be independent. Not only that these countries have had a couple of centuries to perfect their system.

            The problem is that at independence Mugabe's ZANU PF party was so popular, and powerful it made Zimbabwe into a De facto one party state. So as long as you were supported by the Zanu PF brand; you were more than likely to become a member of parliament if you ran. The brand was so strong that the individual attributes of the person seeking office were never considered when running. A deaf, mute toad with the endorsement of the Party could win an election back in the eighties.

            The strong Zanu PF brand was propped up mainly by the skills and guile of Robert Mugabe. He was the principle campaigner for the party since there were only a handful of other politicians in Zanu PF; that could even conduct a decent campaign rally. So most politicians in Zanu PF owed their elected positions to Robert Mugabe; primarily due to their own ineptitude.

            Since the party was a de facto one party government, and any official running for elected office got elected. Great power rested with he who chose those that ran for office. Since Mugabe was the most powerful member of the Party it pretty much was his choice. As we all know he used it as leverage for political favors; not only that he used it as payment to those who were loyal. So in essence parliament really ended up with no real divergence of ideas but was instead a sea of Mugabe loyalists.

            Democracy is not just a system of government it is more like a way of being; a culture; one that I believe evolves from the bottom up. The people in the bottom of society politically have got to see a need for it. It cannot be imposed from the top because the main actors in democracy are the people themselves. It is only when the masses of society are willing to act as democratic citizens can any society be called a democracy.

            The founders of the United States did not establish a Democracy in 1776; how could they only white men with property could vote back then. So how is that a democratic process when it disenfranchises the majority of adults.? This by no means says that they were misguided nor did not know what they were doing. They clearly understood democracy as what it really was and that was a work in progress. They understood that that they could not institute all the tenants of democracy all at once. Chaos would have reigned if people who were not ready and qualified to take part in the democratic process took part instantly.

            They chose to do the wise thing and that was to plant the seeds of democracy and not institute everything at once; because the the pragmatic notions of the day did not allow it. How else can you explain a man who says that all men were created equal, but then says a poor man cannot vote. Its  not that he believes a poor man is unequal; its just that he does not believe that he is ready to vote because he has no education.

            This should have also been a consideration when Zimbabwe was having elections at independence; because less than  5% of the black majority in the country had a high school education at the time. How was there an expectation that the majority of people would understand democracy. How is it possible that somebody who does not understand the basic tenants of democracy be expected to be a full participant. In fact a lot of people were not satisfied by the results of the election, and members of a smaller political party ZAPU got enraged and proceeded to wage a very small civil war for the next six years. So I doubt that Zimbabwe was ready as a country for that process at that time. Maybe an unelected transitional coalition government would have done, or a benevolent dictator for a transitional period could have made the situation in the country better.

            Russia, Iraq, DRC and Nigeria are all countries  where democracy has failed at one point because they took an approach of attacking democracy cold turkey. Zimbabwe's approach was not as bad and did not have results as drastic. A better approach to accomplishing democracy is to go the Chinese route and that is to slowly democratize. The proponents of cold turkey democratization are not pragmatic and are giddy with ideology. People need to be ready for democracy before you democratize.

            The approach has been to democratize first, and that would end up with everything falling into place. The idea was that after democracy the economy would fall into place. Now as a person who has experienced and lived through third world living. I can clearly state that the tenants of democracy are not the prime objective of those that live in third world countries like Zimbabwe.

            I guess its good to have freedom of speech, and the press. I guess it is good to be able to participate in the political process without hindrance. However how is freedom of speech going to feed me? How is it going to give me a job? Does it build hospitals and roads? How could I possibly be an active participant in democracy when my basic needs are not met? Unfortunately democracy is going to take a back seat to anyone as they get myself an education, and I try to earn a living to take care of their family.

            This is the approach the average Zimbabwean took at independence and they wrote ZANU PF and Mugabe a blank cheque. The average Zimbabwean could not act as a steward for democracy because he was not educated, and he had a lot more pressing issues on his mind. The only people who could act as stewards of democracy were ZANU PF, and acting as such was not in their interests; as this would mean that they would have to accept opposition, and they were not about to do that.

            Chapter three of the Zimbabwean Constitution called The Declarartion of Rights outlines the rights of individuals and institutions, and gives the obvious exceptions where those rights are not protected. Those rights are similar to a lot of those found in the Bill of Rights of the United States Constitution. One part of the Declaration of Rights is very similar to the Bill of Rights and that is

 

Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(The Constitution of Zimbabwe)

 

            This is very similar to the First Amendment of the US Constitution. So why does it work in the United States and not in Zimbabwe?

            For starters the reasons laid out above are key, but there are a couple of major reasons that are different. The founders of the United States clearly wanted everybody to be an equal participant, and have a clear sense of freedom of expression if not at that time in the future. The founders of the new nation of Zimbabwe in 1980 did not see a future beyond their rule, and the democracy they established(quasi one party state regime) reflected that. They interpreted the tenants of democracy in such a way as to establish, and cement their position of authority over everyone in the country.

            They were only committed to civil liberties in as much as they were served by  those civil liberties. For the liberties of individuals to be asserted justly there needs to be a tacit understanding, and that understanding is that the authorities are going to act in good faith when it comes to the liberties. When I say good faith I mean that the authorities are going to interpret the law in such as a way as to be just. It is not acting in good faith when you say all men are created equal, but in an effort to justify slavery you call slaves 3/5 of a person. That clearly is ludicrous and an action done in bad faith. If interpreted in bad faith a National Constitution can go from a document of empowerment, and enlightenment to a vehicle of tyranny.

            The clause that gives one the right to freedom of expression as seen above is followed by several clauses which describe the limitations of such inherent freedom the very first clause says that the fundamental freedom of expression can be limited

 

in the interests of defence, public safety, public order, the economic interests of the State, public morality or public health

(The Constitution of Zimbabwe)

 

            Most countries that allow the freedom of expression do limit this kind of expression; for extenuating circumstances that are in the realm of the above issues. It is a public safety issue in the United States to yell fire in a crowded theater, and therefore freedom of expression is not protected under those conditions. It is a public morality issue in the Netherlands to walk around in the nude in public places; so that expression is not protected. Divulging military secrets to the Germans in World War Two by an Englishman; was not protected speech as it was an issue of defence. The above examples are of exceptions where the authorities are acting in good faith.

            However when Zimbabwean authorities arrest you for being critical of the ruling party and its human rights violations. That is definitely not in good faith especially if they use the idea that since you are talking ill of the government; you are insisting public disorder. One can make a case that under certain circumstances talking ill of the government might cause a government sympathizer to fight with you but the chances of that are slim. Or you might incite a riot, and the chances of that are even slimmer. 

            Another clause that can be used to limit the right of freedom of expression in Zimbabwe; is the one that follows in connection with electronic communication; so your freedoms can be limited when:

 

regulating the technical administration, technical operation or general efficiency of telephony, telegraphy, posts, wireless broadcasting or television or creating or regulating any monopoly in these fields

(The Constitution of Zimbabwe)

 

            The problem with the above clause is that regulating is not clarified. If one was dealing in good faith; regulation would mean things like ensuring that extreme vulgarities were left of the air. Its important for the air waves to be regulated to ensure the well being of society. This is very different from acting as a habitual gate keeper, and sleuth on the electronic media as is present in Zimbabwe.

            The Zimbabwean government has not opened up the national airways when it comes to television and radio. It is imperative in a democracy that people have access to all forms of free media, and only the government and its surrogates can broadcast on mass within the country. This is very unfortunate for any opposition party members as they cannot ever purchase any time on the easiest form of mass electronic media. This clearly is a violation in no uncertain terms of somebody's ability to actively participate in the democratic process. The reasons given for justifying the political disenfranchisement of anybody who is not from the ruling party is the theory that someone's rights can be restricted in the case of regulating the air waves. To some extent this is clearly within the letter of the law but is not in the spirit of the law.

            As noted earlier if we do things according to the letter of the law, but not within the spirit of the law at times we circumvent justice. This is a situation that cannot be sustained and will collapse as noted earlier.

            When the nation of Zimbabwe created the post of  Executive President seven years after independence; it did not create an institution that could be sustained. It created a servant to serve a master who was the then incumbent Prime Minister Robert Mugabe. Back then average people were not as educated about these matters, and thought that the powers that be would act as advocates of the people only to discover later that they did not.

            Until December 1987 Zimbabwe was country primarily run by a ceremonial President in the form of Canaan Banana, and he had a Prime Minister who was Robert Mugabe. The Prime Minister was the chief executive office,r but was not Head of State, and he served at the mercy of the President who was the Head of State. Now with the new position of Executive President that was created in 1987 the position of Prime Minister has been abolished, and prettty much absorbed into the position of Executive President.

            After 1987 a lot of changes were made to the Constitution of Zimbabwe as regards to the Head of State. A lot of these ammendments were made  without the public being concious of them even though they were public amendments. The public generally was not aware of the implications of what the president was doing. It trully was done contrary to the spirit of the law.

            One of the main tenants of democracy is that each man is equal in the eyes of the law. It creates an environment where everyone's vote counts as an equal vote. Not only that it is a tenant that leads us to believe that each man has equal rights, and they will be protected by the law. However after 1987 an ammendment was made to the Zimbabwean constitution that made the President an unequal member of the nation. This can easily be seen in Chapter 4 Part 1 of the Constitution of Zimbabwe.

 

             The President shall not, while in office, be personally liable to any civil or criminal proceedings whatsoever in any court.

             Without prejudice to the provisions of subsection (1), it shall be lawful to institute civil or criminal proceedings against a person after he has ceased to be President, in respect of—

(a)        things done or omitted to be done by him before he became President; or

(b)        things done or omitted to be done by him in his personal capacity during his term of office as President;

and, notwithstanding any provision contained in any law relating to prescription or to the limitation of actions, the running of prescription in relation to any debt or liability of the President, whether incurred or accrued before or during his term of office, shall be suspended during his term of office as President.

(The Constitution of Zimbabwe)

 

            This amendment allows for the President of Zimbabwe to not be punished for any crimes he committed. This clearly means that the President is above the law. Not only that it acts as an incentive for the President to commit crime.  Why would someone not commit crime if it was not illegal.

            This has led to numerous violations of internationally guaranteed human rights which is a shame. Immunity of this sort should never be encouraged in any democratic society. A President should be able to pardon people of crimes under extreme circumstances, but not pardon himself.

            The three pillars of government should act as checks and balances for one another. Each should perform a specific role the executive's is to govern, the legislature's is to legislate and the judiciary is to try. If one of these pillars of government gets more power than the other two then there is a problem. That pillar is subject to doing abuses without anyone stopping them. This unfortunately has become true of the situation in Zimbabwe. This is clear from Chapter 4 Part 3 of the Zimbabwean Constitution an amendement made after 1987.

 

·                  In the exercise of his functions the President shall act on the advice of the Cabinet, except in cases where he is required by this Constitution or any other law to act on the advice of any other person or authority:

·         Provided that the President shall not be obliged to act on the advice of the Cabinet with respect to—

(a)           the dissolution or prorogation of Parliament

(The Constitution of Zimbabwe)

 

                This part of the Constitution allows the President to dissolve parliament without even giving a reason. That clearly means that the president has power greater than that of the Parliament. This pretty much means that the lawmakers of Zimbabwe cannot make the President do anything he does not want to. This is because if they do he can easily pull the plug on them making them worthless.

            The issues above are the bare bones issues as to why Democracy does not work in Zimbabwe. Not only has Zimbabwe taken a legal toll for acting the way it does; it has suffered socially and economically as well. The Constitution was created so that the nation could govern with order, and governance affects all aspects of society.

            Democracy in Zimbabwe struggles because the powers that be are concerned with propagating their rule, and not creating good institutions that last into the future. To do this they stuck religiously to the letter of the law at the expense of the spirit of the law. They have managed to manipulate the constitution to suit their interests. They managed to do all of this because the public was not watching them, and the public thought that the powers that be were acting as good stewards for the nation of Zimbabwe.

 

BIBLIOGRAPHY

The Constitution of Zimbabwe. Retrieved on May 3 2008  

www.chr.up.ac.za/hr_docs/constitutions/docs/ZimbabweC(rev).doc

 

Blaustein, A.  Gisbert, H. Hackwill, G(1980) Constitutions of the Countries of the World: Zimbabwe.

New York. Oceana Publications

 

Kaye, R. Brain-Damaged Woman at Center of Walmart Suit. CNN.COM. Retrieved on May 20 2008

www.cnn.com/2008/US/03/25/walmart.insurance.battle/

 

Zimbabwe Judiciary and Government at War. Afrol.com. Retrieved on May 7 2008.

www.afrol.com/News2001/zim005_judiciary_vs_gov.htm

 

Zimbabwean Judge Gives in to Pressure. Afrol.com. Retrieved on May 5 2008.

www.afrol.com/News2001/zim009_new_chiefjustice.htm

 

Zimbabwe Legalises Communications Censorship. Afrol.com. Retrieved on May 9 2008.

www.afrol.com/articles/25760

 

Zvobgo, E. (1987) Democracy in a Socialist State.Symposium on Parliamentary and National Issues.Harare. Zimbabwe

 

United States Constitution.Cornell University Law School. Retrieved on May 6 2008.

http://www.law.cornell.edu/constitution/constitution.overview.html

 

 

                                                                                         

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     

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