New approach needed

A new approach to upholding and respecting the rule of law may be needed in Zimbabwe if a lasting solution is to be found, according to a new report launched last Wednesday in Johannesburg by the International Bar Association’s Human Rights Institute.

Unity Dow from Botswana, a member of the IBAHRI delegation.
Unity Dow from Botswana, a member of the IBAHRI delegation.

The report puts the Global Political Agreement at the centre of both the challenges and solutions affecting Zimbabwe. As a result, the delegation representing IBAHRI that travelled to Zimbabwe in June this year and contributed to the report met several key stakeholders whose work revolves around the issues concerned with the agreement. As well as visiting Harare, the delegation also travelled to Mutare and Bulawayo. Meetings were also conducted in Johannesburg, South Africa.

In the report, IBAHRI notes that: “In assessing the GPA and the problems with its implementation, the delegation considered the role played by the international community, in particular the SADC institutions, the African Union and foreign states and donors in monitoring the GPA and restoring the rule of law in Zimbabwe and how this could be improved. It also considered the impact that the recent discovery of a large seam of diamonds has had on the rule of law, human rights and political process in Zimbabwe.”

Selective law application

Respect of the rule of law in Zimbabwe has remained a hugely contested terrain, even in the aftermath of the signing of the GPA and consequent formation of the Government of National Unity. Several offices, not least among them the office of the Attorney-General, have been seen to be apply the law selectively.

Addressing the urgent need for an independent and well-resourced judiciary, the report notes that a lack of resources has hampered the effectiveness of the judiciary in Zimbabwe. More importantly, it notes that some of the benefits that have been offered to judges under controversial circumstances have impacted negatively on the operations of the judiciary and also how it is perceived by the citizens it represents.

Speaking at the launch of the report, renowned Legal Practitioner and Solicitor, Sternford Moyo, stated that there existed, in Zimbabwe’s courts of law, “an element of incompatibility between farming and presiding over legal matters” in an apparent reference to judges who had taken over farms seized during the chaotic land reform exercise in Zimbabwe. Moyo went on to reveal that there were instances whereby judges had failed to pitch on time to hear cases because of engagements on their farms.

Encounter with AG

One of the most revealing parts in the report regarding the state of rule of law in Zimbabwe is the IBAHRI delegation’s encounter with Attorney-General, Johannes Tomana who was appointed by President Robert Mugabe in December 2008, two months before the GNU was sworn in. Critics suggest that Mugabe made this appointment at this time in order to avoid consulting Morgan Tsvangirai who would become Prime Minister early 2009. Regardless, such an appointment is just but one of the many GPA violations recorded since September 2008 by various stakeholders.

“The delegation met Tomana,” the report states, “who said that he saw no need for a separation of his political and prosecutorial functions as he felt that his office performed both functions professionally and impartially. He completely rejected any suggestions of political bias and said that ‘our understanding of the rule of law is that our laws apply equally without discrimination or reference to politics or ethnicity.’”

Interestingly, the report also makes a very telling observation: “On the same day that he met with the delegation, Tomana gave an interview to a newspaper on which he was quoted as having stated that he is a Zanu (PF) supporter and that the discretion on who his office should prosecute ‘is entirely in my hands.’”

The report further observes: “In both the newspaper interview and the meeting with the delegation Tomana declared that his office was committed to prosecuting those responsible for breaking the law on an impartial basis.

Tomana’s two faces

“In the newspaper interview he implied that any discrepancy between the prosecutions of Zanu (PF) supporters and MDC supporters was simply down to timing.

Lawyers protest over the selective application of the law in Zimbabwe.
Lawyers protest over the selective application of the law in Zimbabwe.

‘Everyone is judge of his own misdeeds,’ he commented. ‘The MDC people have not said they are not committing offences. They are saying Zanu (PF) and them are offenders and complaining that they cannot be arrested alone leaving Zanu (PF) out. If you are guilty does it matter whether I have started with you leaving others?’ asked Tomana.”

Despite the seeming gloom ushered in by the ineffectiveness of the judiciary and the glaring failure to uphold the rule of law in Zimbabwe, respected former High Court Justice Unity Dow who headed the IBAHRI delegation to Zimbabwe said there was new “energy and hopefulness” about the future of Zimbabwe when she spoke at the launch of the report. She was, however, cautious and observed that “it’s not just about the legal processes but also about the political will and the attitudes of those who make laws towards their upholding and respecting.”

The full IBAHRI delegation consisted of Unity Dow from Botswana; advocate Pansy Tlakula, chief electoral officer of South Africa; Professor Bartram Brown, Professor of human rights and international law at Chicago-Kent College of Law, Illinois Institute of Technology, in Chicago, USA; Daniel Leader, Barrister at Leigh & Day in London; Professor Christina Murray, professor of Constitutional and Human Rights Law at University of Cape Town and former member of the Kenyan Committee of Experts appointed by the Kenyan Parliament to draft a new constitution; Marie Pierre Olivier, Senior Programme Lawyer at the IBAHRI; and Connor Foley, humanitarian aid worker and author, who also acted as rapporteur for the delegation. The Open Society Institute for Southern Africa (OSISA) funded the mission.

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