Monday, August 29, 2016

Whither Zimbabwe’s Judiciary?
August 29, 2016

Demonstrators who appear before the courts as peaceful, arm themselves with petrol bombs, stones, catapults and iron bars before engaging in the so-called “peaceful protests’’

Zimbabwe Herald

Zimbabwe witnessed a resurgence of terrorist activity by MDC-T on Wednesday, August 24, 2016 when that party’s youths torched a police truck, a police post and a ZBC van.

The police, themselves, a key component of the justice delivery system for which the judiciary is a part, in the context of terrorist attacks, had denied opposition parties permission to hold a demonstration so soon after the violent acts on Wednesday.

The granting of a High Court order, permitting another demonstration on Friday, August 26, 2016 — two days after the terrorist acts — as well as wanton looting of private citizens’ shops, therefore, came as a surprise to bystanders.

The decision was more baffling, especially given that the demonstration was set to commence from Robert Mugabe Square, a stone’s throw away from the Harare Agricultural Show.

Dear reader, the two seemingly unrelated issues will be dovetailed shortly.

The Judiciary chose to ignore the context of the application at a time of heightened tension, where MDC-T demonstrators had clearly disregarded their pledge to hold a peaceful demonstration.

To the chagrin of all and sundry, two days later, the same violent MDC-T, this time in cahoots with other parties, was granted permission to hold another bigger demonstration, which the Security Forces in their wisdom had denied permission.

The High Court has a duty to balance the interests of the applicant, that is the political parties, and equally those of private citizens, as well as business in coming to a conclusion.

The custodians of peace, given the terrorist context, had denied permission to hold the rally but the High Court, inexplicably granted it notwithstanding the realities on the ground. These same demonstrators who appear before the courts as peaceful, arm themselves with petrol bombs, stones, catapults and iron bars before engaging in “peaceful protests’’.

It is disheartening that soon after granting the ill-thought out order which paved the way for yet another “peaceful’’ demonstration, which was to begin adjacent to the ongoing Harare Agricultural Showgrounds at the Robert Mugabe Square, where children and foreign exhibitors were, the culprits were at it again, storming into the showgrounds.

The rowdy terrorists, who had shown their true colours two days earlier, but which the learned Judge paid a blind eye to, went on a rampage at the Agricultural Show, in the process endangering the children who thronged the show, as well as scared foreign exhibitors.

The question is, what High Court scares away and endangers the security of citizens, especially children? What kind of a High Court scares away and endangers foreign investors, exhibiting at the show? What kind of a High Court does not consider the safety of citizens? What kind of a High Court prioritises the right to demonstrate at the expense of the right to safety and being secure, as well as the economic interests of the country?

What kind of a Judiciary appears to revel in anarchy?

In Shakespearean language, “something is rotten in the state of Zimbabwe.”

The foregoing is not an isolated incident, there are other cases and instances where another arm of the wheels of justice, the prosecution, has been complicit in causing anarchy in the country.

It is worrying that most of the cases that slip through at the courts, are not necessarily because of a weak docket, but procedural bungling by the prosecution, or at times, the presiding magistrates or judges.

#ThisFlag leader, Evan Mawarire, slipped through the legal net, not because he was innocent, but simply because the prosecution in its wisdom, or lack of it, changed the charges against the accused in the courtroom. It is common cause, even to a layman, that an accused person is read his or her rights upon arrest and the charges with which he or she is being charged with in order to give him or her ample time to structure a defence.

It is shocking to say the least for legal practitioners, who pride themselves by referring to each other as “my learned colleague,” can somehow forget such a basic tenet of justice delivery, which laymen like myself are aware of.

To this day, Mawarire is gallivanting scot-free in the United States.

Some accused persons are over-detained beyond the stipulated 48 hours before being brought before the courts, rendering their cases a dud because their rights would have been infringed on.

The case of Mawarire is instructive. It ironically brings to the fore, hard and uncomfortable questions about some sections of the legal fraternity, both in public and private practice.

For instance, is it simple coincidence that for the first time, “100” lawyers thronged the Magistrates’ Courts as Mawarire’s legal team on a day that the public lawyers somehow connived to change the charges against Mawarire in the courtroom fully knowing the repercussions of their actions?

Never-mind the indisputable fact that lawyers in public and private practice are former classmates, friends and colleagues who work together daily in court.

The same ties that bind journalists from both the private and public media, who went to school together, and are friends, are true of lawyers. What can stop private and public lawyers from colluding?

No one will ever know the circumstances which led to Mawarire’s premature release, although the legal bungling smells to the high heavens.

While Zimbabwe is a constitutional democracy which prides itself in observing the separation of powers between the three arms of the state namely the Executive, the Legislature and the Judiciary, it becomes difficult when another arm appears to be out of sync with reality.

What happens when the judiciary appears to be misinterpreting the law to the benefit of a small violent section of the community at the expense of those of the peace loving majority?

Should the executive or legislature fold their arms and watch, all in the name of separation of powers?

If democracy endangers my child, endangers my business, endangers the country’s economic prospects and disturbs peace, surely it must be a bad thing, or is it?

The fathers of democracy did not have such a warped idea of the otherwise good concept of democracy and separation of powers when they coined them.

The buck has to stop somewhere.

In this instance, the buck certainly stops with the executive.

No comments: