On 12 October 2016, Taona Sibanda, a lawyer practising with Chinawa Law Chambers filed an urgent chamber application before the High Court on behalf of one Cynthia Maadza against a senior officer of the army, Brigadier Stanley Mangena. This followed prior threats by Mangena to unlawfully enter a warehouse at Maadzaâ€™s residence and remove property without any legal basis. Maadza was granted relief by the High Court directing Mangena and all those acting on his behalf to refrain from removing any property from Maadzaâ€™s residence. On 13 October 2016, Taona Sibanda accompanied his client together with the Sheriff and the Deputy Sheriff to serve the court order on members of the Zimbabwe National Army (ZNA) who had gained entry to his clientâ€™s residence and were in the process of removing property at the behest of Brigadier Mangena, in direct contravention of the order of High Court. The Officer in Charge at Chinamora Police Station one Assistant Inspector Chikozho openly refused to enforce the High Court order notwithstanding a direct order of the High Court instructing him to do so. One officer identified as Samuel Mwanza threatened to detain the Sheriff and Sibanda at the police station. Sibanda and the Sheriff were at this police station from 22 00 hours to around 0200 hours without assistance.
Further efforts to serve the order by the Sheriff and Taona Sibanda the following day, on 14 October 2016, were met with contemptuous disdain and resistance by the uniformed soldiers led by Colonel Nyamangora who openly defied the High Court order and continued to remove the equipment from the warehouse. The ZNA members who were present categorically threatened Sibanda with death as he left the property, saying that they would chop off his head. The use of state institutions, and in this case the military, in pursuit of essentially private unlawful enterprises must be condemned in the strongest sense.
Sensing the imminent danger and threat to their lives, from the advancing soldiers, the lawyer and client drove off at high speed, as the menacing soldiers continued to threaten to eliminate the lawyer.
The narration of events above is disturbing at several levels and should be a cause for serious concern to all law abiding citizens of the country. The brazen use of state resources and the ordering of at least a dozen military personnel by a high-ranking officer to pursue a defenseless civilian woman induces a sense of shock and fear to all peace loving citizens. The total disregard and disdain of an order of the High Court raises questions on protection and rule of law principles and tarnishes the reputation of the ZNA.
Of particular concern is the fact that the ZNA is supposed to;
- As part of the Defence Forces, respect the fundamental rights and freedoms of all persons,â€¦.and be professional and subordinate to civilian authority [section 211(3) of the Constitution];
- must be maintained as a disciplined military force [section 211(4) of the Constitution]
Most importantly, is the fact that the function of the army (as part of the Defence Forces) is to protect Zimbabwe and its people (section 212 of the Constitution). It is noteworthy that Sibandaâ€™s client was an unarmed elderly woman who had properly sought protection of the court.
Such an attack on a legal practitioner who is merely acting on instructions of his client is tantamount to associating the lawyer with the cause of his client. This has serious implications on the ability of lawyers to represent their clients without fear or favour in accordance with the Constitution.
The respect, promotion and protection of the rights of legal practitioners, is a prerequisite for the safeguarding of the independence of the legal profession as well as the judiciary.
It must be recalled that sections 70 (1) (d), 69 (4), 50 (b) (i) and (ii) of the Declaration of Rights, in the Constitution of Zimbabwe guarantees the rights to legal representation of oneâ€™s choice in criminal and civil matters as part of ensuring the fundamental right to protection of the law. Regionally, the African Charter on Human and Peoplesâ€™ Rights (to which Zimbabwe is a State Party), and the African Union Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa both reaffirm these rights.
These internationally recognised safeguards have also been laid out in various United Nations (UN) instruments binding Zimbabwe, and are expanded particularly in the UN Basic Principles on the Role of Lawyers, of which the State is well aware as a member of the UN.
ZLHR therefore calls for:
- police to promptly investigate this case and ensure justice prevails;
- Prosecutor-General to take swift and effective action to ensure the prosecution of all the offenders who carried out unwarranted attacks on a member of the legal profession, so as to discourage this practice and the growing culture of impunity;
- Commander of the National Army to take appropriate and decisive disciplinary action against his subordinates who unlawfully abused an impartial national institution, in contravention of section 208 of the Constitution;
- Zimbabwe Human Rights Commission is requested to carry out investigations in accordance with section 243(f) of the Constitution and take appropriate action;
- Law Society of Zimbabwe to take appropriate action to protect legal practitioners from attacks whilst discharging a constitutionally guaranteed mandate;
- Judicial Service Commission to trigger its powers in accordance with section 190 of the constitution to investigate this case and take necessary measures that protect the integrity of the judiciary and the administration of justice.