The rule of law and democracy

Yet, even if it could not be reasonably doubted that, by the logic of numbers, the system of government of these three is a democracy, wouldnt the mathematics of this culinary ballot nonetheless offend our sense of justice, fair play, and public morality?

I would like to reflect together with you on how Law enables and facilitates that aspiration expressed so well by Immanuel Kant in his Groundwork for the Metaphysics of Morals, that we should never act in such a way that we treat humanity, whether in ourselves or in others, as a means only but always as an end in itself. The idea of humanity as an end suggests the design of public systems that are fair and thoughtful; systems that are protective of minorities; systems that defend dignity; systems that enable creative life. And, indeed, systems that protect the lone goat in her democratic life alongside her compatriot leopards.

But, before I go further, lest I be accused of committing that social crime that is so often joked about in our townships the case of the fellow who arrives wailing like a siren at a funeral, goes straight to the food section, and only after gorging himself on the food does he whisper the question to the man sitting next to him, So, who has died by the way? let me begin by acknowledging the Rule-of-Law hero in whose name we give this annual lecture.

One cold day several years ago I and a couple of colleagues in the University of Zimbabwe student leadership were having a meeting with Professor Walter Joseph Kamba, in the Vice Chancellors office. One of the agenda items was the construction that the University administration had embarked on of a perimeter metal fence around the University. During the meeting, I said to Professor Kamba that, while I appreciated that an intrinsic case could be made for fencing the University premises right round, I was concerned by the project at two levels: First, the fence was being installed at a time when several cuts in University services were being introduced books, copiers, maintenance of amenities, food, etc could not these services be prioritized instead?

Second and this was the bigger concern on my mind at a time when police brutality was intensifying on campus, the fence would constitute a cage within which students were going to be easily maimed by the riot police. After listening respectfully, Kamba responded by saying that he understood the concerns we were raising, especially the second one. Nonetheless, he claimed, he was caught between two competing points of view. Look, I am persuadable either way, he shrugged his shoulders, but I also have an argument that the University Council is making that they need to safeguard University property.

So, which side will you fall on? I demanded, in the impatient tones of a young student leader. Well, he responded, you are a Law student. This appears to me to be a kind of contest between a narrow view of Law thats emphasizing protection of property and the mandate of the University Council to so protect property, versus a wider conception that is concerned about the rights and interests of the larger community, including whether the legal force of decisions that have been made by a competent authority (in this case the University Council) can nonetheless be vitiated by an alleged lack of broad consultation with stakeholders. Let me not choose either side, except to say that since the contract on the fence is already a positive legal fact, and the fence is already in the process of being built, could you please give it a chance?

Although I came out of the meeting with empty hands, I did not come out with an empty head. On the thin platter of a mundane bureaucratic disputation, our minds had been fed a brief but thoughtful repast on the intricacies of the Rule of Law. Now, was it sleight of hand on his part? Yes, we thought so. But had we enjoyed being defeated in the argument? Yes, we had emerged from his office smiling.

Although Kamba did not convince us, and unfortunately he was famously to resign a little later, while we were still in office, yet that conversation, and his actions and utterances in national and international matters more momentous than a University perimeter fence (my last occasion of seeing him was a few years ago when we shared a platform speaking on electoral reform), suggest to me the image of a man in whose headspace lived and breathed the concerns and issues that the legal profession ought to be daily seized with, in its mandate to promote and foster the Rule of Law. – Tawanda Future Mutasah is an international lawyer and Chair of the Institute for a Democratic Alternative for Zimbabwe (IDAZIM). He delivered the Walter Kamba Rule of Law Memorial Lecture in Harare in December. The full text is available at www.thezimbabwean.co.uk

These concerns, legal practitioners and academics often soon realize, include but also go beyond turning up at the right time at Court or in the lecture theater with legal brief or treatise in hand. Rather, Law is a complex enterprise that I believe manifests itself in at least three dimensions: I find Law being, so to speak, at once subject, object, and verb: subject in that Law can have (what appears to be) an immanent presence, mobilizing its will against objects that are acted upon; yet is an object in that Law can be a double-edged blind artifact deployable in the hands of both parties to a duet, the weak and the strong; and also Law is a verb in that in its mechanics, its dynamism, its relative autonomy as a process, its creativity that is to say, in the very kinetics of law in its manifestation as legal brief by attorney, as argument in Court by advocate, as deliberation by jury, as exegesis by jurist, as discretion by arbitrator, as jurisprudential obiter by judge it is a moving, warm-bodied form whose impact is not always coextensive with the force and direction of its deployment.

It is when we look at Law in this way, as something more than Court buildings and black robes, more than policemen and women on the beat, that our profession is especially called to humility and dedication in the discharge of our work. We suddenly see how we are called to a vocation where if you are too certain about something, maybe you are a fool. We see causes that cannot be ignored. We see Law in technicolor. We begin to see relationships that we might not have thought of before. As one legal practitioner in one corner of town effects the transfer of title to some property, the action may at first blush seem unconnected to the pithier discourses of the Rule of Law, and even of constitutionalism. Yet her action, or at least hers and similar actions in aggregate, are all part of the infrastructure of impressions, ideas and facts that engender or erode the general atmosphere of legality in a country.

If one Monday morning in all the small and big towns of Zimbabwe fifty lawyers were to oversleep and not turn up at the Magistrates Courts to seek bail for their clients, perhaps what would suddenly be at stake would be more than the freedom of 50 weekend detainees. The lawyers extra hour of sleep may result in the seepage into the legal system of de facto precedents of practice following the manner in which the magistrates may proceed to act that morning. In turn, police practice with respect to Thursday and Friday arrests may get even worse than it now is. In turn, food and other resources at holding cells may be affected. In turn the perception of the system of Justice delivery by at least fifty families and their neighbors, church mates and others with whom they converse, may be fundamentally affected. In the same way that the small intangible matter of confidence in the economy may result in money being kept in the ceilings of households instead of the vaults of banks, a certain general perception that a legal system exists, that it works, and that it is fair and predictable, is a necessary aspect for the flourishing of the Rule of Law. And of a Democracy.

We know that these issues confront every society in its own way. In 1964, Lon L. Fuller published his famous The Morality of Law, which gained international acclaim as a part of his protracted intellectual duet with H.L.A. Hart. As you recall, Fuller added an appendix to his book, called The Problem of the Grudge Informer. I would like to recall this problem, for although it was written in the aftermath of the perversions of Law and Justice witnessed in National Socialist German under the Third Reich, and in Communist Russia under Stalin, it illustrates the difficult and important calling that as lawyers we are saddled with if we are to be useful in the continual development of our societies, and in the building and protection of democracies in which ordinary people can repose their confidence. To refresh our memories, the essentials of the problem are as follows:

You are a new minister of Justice in a new democratic dispensation, a dispensation which comes after a cruel reign of terror by the Purple Shirts party. During the dictatorship of the Purple Shirts, there was no constitutional restraint, no Rule of Law in any meaningful sense of the phrase. Among other problems, judges that ruled in a manner seen as unfavorable to the regime were beaten or murdered, and the Law was used selectively against political opponents.

One major legal problem that arose during the Purple Shirts regime is the problem of the grudge informer. This related to people who, using the secrecy and suspicion of the times, worked off their personal and familial grudges by reporting their enemies to the State or the Party. So, this would be like, say, during the Law Society Winter School, Mr. X, a lawyer, has an affair with Mrs Y, a married female lawyer, both acting in the process under Section 53 of the Legal Practitioners Act, whereunder the Law Society of Zimbabwe inter alia promotes social intercourse among its members. In order to put the husband of Mrs Y away, Mr. X, in the manner of a couple of years ago, then goes to the Reserve Bank of Zimbabwe and informs that the husband of his lawyer friend is externalizing foreign currency. In Lon Fullers narrative, the activities reported were such things as the private expression of views critical of the government, listening to foreign radio broadcasts, associating with known wreckers and hooligans, hoarding more than the permitted amount of dried eggs, failing to report the loss of identification papers within five days, etc. Many people were killed following such reporting, since these acts, if proven, could attract capital punishment.

In the new democratic dispensation in which you serve as Minister, there is now a public clamor for these grudge informers to be punished. You are under pressure to resolve the matter, and you have asked the opinion of your five deputies. In conference, the first one argues that you ought to do nothing about the so-called grudge informers, since the sentences that were imposed on their victims were in accordance with the laws of the time. Unlike the Purple Shirts, the deputy says, we respect legal regimes as binding even against those who may disagree with particular laws. The second deputy arrives at the same result, that nothing should be done about the grudge informers, but she arrives at this conclusion via a different route. She argues that because a legal system must have certain characteristics such as predictability, the existence of laws that are widely know by the public, etc, Law as such ceased to exist during the regime of the Purple Shirts. What the grudge informers did was neither lawful nor against the Law, for there simply wasnt any Law worth the name. The third deputy indicates his disdain of the black-or-white approach of the first two deputies, indicating that precisely because a stark either/or approach does not work, deputy one and two have absurdly arrived at the same conclusion from virtually opposing arguments. He argues for a calibrated and differentiated approach whereby acts will be punished as they deserve and those deserving to be condoned will be condoned. For instance, that in the case of Mr. X and other section 53 social intercourse actors, the Law should be harsh. The third deputy contrasts this case with situations where informers told against others simply because the informers were naturally officious busybodies that presumably meant no harm. The fourth suggests a special statute for dealing with the problem, and the fifth recommends that the government should look the other way while citizens out there exact their revenge in the unlit corners of the countrys streets. Such self-help is the only viable way forward, for is not the main purpose of the criminal law to give an outlet to the human instinct for revenge? Rather than involve government in trying to rationally resolve an insoluble problem, and perhaps discrediting the integrity of our legal institutions in the process, why not wear blinkers for a period and let the problem straighten itself through a more hot-bloodied form of actio popularis? (I must say the fifth deputy is here referring to the type of actio popularis that lawyers should NOT be thinking about!)

The Moment We Are In

What then, are the challenges today, in the quest for a just Rule of Law and Democracy in Zimbabwe? What would Professor Kamba have said/been concerned about out of the big topics of the present moment?

We face in Zimbabwe today a complex transition, even in purely legal terms, with any one of myriad legal questions raising its own headaches for thoughtful citizens and lawyers. If Amendment 19 effectively incorporated the Global Political Agreement (GPA) into the Constitution, was Mugabes presidential authority constituted prior to or under the GPA? Does the cumulative timetable of constitutional reform and related processes contemplated by the GPA add up to a self-executing lifespan for the GPA after which the instrument self-destructs, or can the timeframes for important events be set outside the GPA? If the GPA instrument self-destructs by virtue of its time thresholds, but without having indisputably achieved its substantive objectives, what would be the operational framework in the constitutional space presently occupied by the GPA, and when would such kick in? What is the constitutional effect of substantial breaches of the GPA political contract? And so on and so forth.

In confronting these questions, it is also disconcerting to note the tendency of elections in Africa to produce mayhem and bloodshed, and in cases like Zimbabwe and Kenya, patchworks of constitutional authority that mandate uncomfortable political cohabitations. A few days ago we witnessed yet again the unnecessary loss of African lives, and the erosion of public confidence in Democracy, in the Ivory Coast and in Guinea (Conakry). It is time to ensure in all African countries effective domestication of progressive regional and continental as well as international norms and standards, and to ensure once and for all the infrastructure, attitudes and culture of respect for free assembly and expression, free media, fair citizenship and other eligibility laws for the electorate and aspiring electoral candidates, democratic policing and other roles of the security forces, and, above all, the need for any African election to not result in the loss of even one limp or life.

In confronting issues of this nature, I believe that the contribution that the Law Society of Zimbabwe is making is commendable. I understand from my conversations with councilors and the leadership of the Secretariat that the Law Society is thinking of availing training to facilitate better engagement with the Universal Periodic Review, and the Zimbabwe UPR process in 2011. This is commendable. Yet, it is equally important to ensure that Zimbabwe and other African countries are held to the commitments that they have signed at the African level. Although, since the adoption of the AU Constitutive Act, and then the actual transition in July 2002 from the OAU to the AU, African treaties and protocols are signed left right and center, the practice, however, still leaves a lot to be desired. Implementation is still a major weakness. As the Africa Governance Monitoring Project (AfriMAP), a program of governance monitoring and advocacy being implemented by the Open Society Initiative for Southern Africa together with other Open Society Foundations and associates across the continent is showing, African state parties are currently simply not meeting their reporting obligations on African treaty obligations, as well as within international governance and legal frameworks. Against this background, the African Charter on Democracy, Elections and Governance obliges state parties to submit every two years, from the date the charter comes into force, a report to the (African Union) Commission on the legislative or other relevant measures taken with a view to giving effect to the principles and commitment of the charter . The only way to ensure that now that the Charter has been adopted this clause does not become a new reporting obligation that is honored in breach , is to purposefully strengthen pan-African commitment to progressive electoral standards setting and practice, and to develop viable institutional arrangements and partnerships for monitoring and advocating that this is achieved. As the Law Society works on the UPR, let us not lose sight of these African battles too.

African Contribution to the International Rule of Law

Not that the Law Society has been a slouch when it comes to Africa-level efforts such as African supranational litigation. Even amidst the trials and tribulations that lawyers have experienced in this country, I have been encouraged when we have hosted Zimbabwean colleagues at the Southern African Litigation Center to see deepening contacts and mutual assistance between our lawyers and their international counterparts. Zimbabwean lawyers have also been at the forefront of working the African system of human rights protection.

In fact, given that human rights and democratization issues are a universal challenge, Zimbabwean and African lawyers can make and are making a contribution even at the wider international level, in the development of the Rule of Law and Democracy. While degrees vary, of course challenges are truly universal, and not an African problem. As an example, with the expansion of the European Union, countries such as Hungary, Estonia, Latvia and Bulgaria have grappled with how to fulfill the Copenhagen Principles defined in June 1993 by the European Council as criteria for human rights readiness to join the EU. Consider too the fact that, today, the Strasbourg system faces problems of serious human rights abuses in Chechnya, or more broadly the alleged violations of the European Human Rights Convention in countries such as Poland, Russia, Turkey, Romania and Ukraine among these five, for instance, 57 per cent of the European Court of Human Rights docket originated, as at 1 January 2007. These real challenges elsewhere suggest that the broader international universe is a place where Zimbabwean and African lawyers have as much to learn as to teach.

With the African Court of Justice now at least institutionally in place, Africa international jurisprudence should continue to grow. Even with its limitations, the present infrastructure of the Banjul Commission has scored some gains.

Looking Ahead

In conclusion, I find it encouraging that the Law Society is thinking of a number of strategic interventions that will enhance its prestige, relevance and leadership in the next several years. These interventions include strengthening continuing legal education, outreach, self-regulation, and regional and international collaboration and partnerships. When you provide continuing training in the profession, the standard of legal skill rises. People execute wills that are more viable. When you expose Zimbabwean lawyers to how legal deals in COMESA are executed, it facilitates African regional integration. When you continue to defend the Rule of Law and constitutionalism as a Law Society, we build a humane society in which even the rights of minorities will be protected, so that our democracy does not become as that of the proverbial two leopards and one goat democratically voting to decide whats for supper. When you strengthen self-regulation of the profession, you preserve the independence of the profession. And so, as concerns the plans you already have, I say power to your collective hand.

I do not seek to convince you to add to such a menu anything that you may not be thinking of now. Indeed every international partner in the Justice sector soon learns that attorneys and judges are difficult to move against their will, or even simply beyond it. You often have to wait for them to discover each step by themselves before they can inch their way forward. Although significant resources have been put into helping law societies and the judiciary in many countries, one often finds that judicial reform, especially, is like moving a graveyard: you can do it, but dont expect help from inside. Be that as it may, there is one matter that I would like to put into your line of vision, for on it the quality of Democracy and the Rule of Law in the Zimbabwe of today may falter or succeed.

As you know, corruption, by one African Union estimate, costs Africa US$148 billion a year. Natural resource corruption is especially a menace, since we are then faced not only with the diversion of public resources into private pockets, but also with rampant abuses by security forces and greedy elites. On the other hand, if discoveries such as the Chiadzwa diamonds were subjected to the Rule of Law, were treated under regimes of transparency and accountability, given increasingly more favorable commodity prices, it would take a few years to transform the face of the African continent. It is possible. It has been done by other countries. Norway in 1902. Botswana in 1966, across the border.

We run the real risk now that with these discoveries of non-renewable resources in Africa diamonds in Zimbabwe, oil in Ghana, gold in Malawi, etc the continent may fail to take advantage of good commodity prices in the next ten years, and a helpless populace may watch as the earth under it is hollowed out to produce stupendous riches for a few corrupt locals as well as well as some transnational companies. The answer is not the autarkic nationalist rhetoric of domestic elites that are lining their own pockets behind the rhetoric of national ownership of natural resources. The answer lies in transparency of contracts that are entered into between governments and companies, the answer lies in genuine access-to-information laws, in the accessibility of information on royalties, in production sharing contracts, in appropriate tax and other arrangements that are entered into for the extraction of these resources, and in the democratic and judicious use of the dividend for the provision of first class health infrastructure, drugs, schools and textbooks for Zimbabweans.

The contribution of Law and lawyers lies in utilizing legal remedies to deal with the supply and demand of corruption in this sector, and the resultant natural resource spoliation. International networks of lawyers and journalists are also critical. In July 2004, a US Senate reported identified suspicious transactions by senior Equatorial Guinea leaders through accounts at Riggs Bank, based in Washington DC, and this opened up actions that are continuing now. Following investigations into the way Elf Aquitaine contracts in countries such as Gabon, Angola, Cameroon, Congo-Brazzaville had been signed on the back of massive bribes to public officials both on the French side and in these African countries, in 2003, thirty-seven defendants stood trial in France. Three former Elf executives were sentenced to five years imprisonment for misuse of company assets. This is an area that requires action in resource-rich countries as well as in the countries in which some of the extracting companies are domiciled. Today there is a growing infrastructure of laws that could aid lawyers and the media in exposing natural resource corruption, including the SADC Protocol Against Corruption of August 2001, the US Foreign Corrupt Practices Act of 1977, and whistleblowing legislation such as the UK Public Interest Disclosure Act, 1998, and, in the US, the 2002 Sarbanes-Oxley Act,.

In addition to program plans the Law Society already has, perhaps a creative program of legal action in this area could also be brainstormed. It would constitute a significant contribution by the legal community of today judges, attorneys, legal academics, lawyers in private practice and in civil society, etc to some of the newer problems of the Rule of Law and Democracy in todays world. It is a unique challenge for todays generation of lawyers.

I thank you.