Speech by David Coltart: Legal and Justice Situation in Zimbabwe: 1995

Legal and Justice Situation in Zimbabwe:  1995

By David Coltart

18th May 1995

Address to be given to the Theological College of Zimbabwe


In Nehemiah 9:13 we read:

“You came down on Mount Sinai; you spoke to them from heaven. You gave them regulations and laws that are just and right, and decrees and commands that are good.”

There is a major difference between law and justice.  Very often, we mix up the two concepts and we believe that laws must be inherently just.  God’s laws are always just.  Man’s laws are sometimes just but very often unjust and wrong.  Man’s laws therefore must always be compared with God’s laws.  Ultimately, we are called upon to obey God and his laws and standards of justice, not man and his laws.

Accordingly, as we come to study the legal and justice situation in Zimbabwe we need to do the same.  It is important that we do not take a superficial view of our laws and legal system.  On the face of it we do appear to have reasonable laws, a Constitution which is compiled by our Government and a strong justice system.  On closer inspection, and especially as we consider our laws and legal system in comparison with God’s laws and God’s standards of justice, I believe you will realise that there is very little justice in Zimbabwe. Many of our laws are wholly unjust and the legal system as a whole is faltering, and in danger of becoming unjust in itself.

Dr Makombe spoke on Monday regarding the political situation.  One of the vital points he made was that in 1990 ZANU (PF) realised that they would not be able to bring about a de facto one-party state because of the collapse of socialism.  I agree with him that they decided in 1990 that they would do all in their power to bring about a de facto one party state.  In other words, they would do all in their power to maintain the facade of democracy, to maintain the facade of a civilised, pluralistic system of Government but that in reality they would do everything to ensure that behind the facade they were in absolute control of power.  I believe that in 1990 they looked around and identified where the potential sources of political opposition would come from and they singled out opposition parties, the independent press, student movements, human rights groups and the judiciary.  I would like to briefly analyse what Government has done regarding these various manifestations of political opposition. Then I will go into more depth as I analyse how the judiciary has been undermined by Government. The purpose in doing so is to show that one cannot fully understand what is happening to the justice system unless one realises that ZANU (PF) perceives it as a source of opposition which must be crushed.

Dr Makombe made the startling statement on Monday that he believed that Mr Tekere was a pseudo opposition politician, a man actually acting in the interests of ZANU (PF).  I have felt the same for a number of years.  I am convinced that some of the political parties established since 1990 are simply designed to create the impression in the minds of the people, and more importantly in the minds of the international community, that this is a pluralistic society, that this is a vibrant multi-party democracy.  Where I disagree with Dr Makombe is that he is concerned that Dr Dumbutshena of the Forum Party may be an agent provocateur as well.  I do not believe that but what I do believe is that Government has infiltrated and undermined genuine opposition parties and has used its control over the media to complete the job.  The reality of the situation is that in 1995 there is no meaningful opposition political party and following the elections, the new parliament is to all intents and purposes a one-party parliament.

The independent press was another major threat.  It is interesting to note that in 1990 it was a Government-controlled bank, Zimbank, which enabled the buyout of Modus.  I believe the Government allowed this to happen because they realised that the Financial Gazette actually served a very useful purpose.  It is a newspaper which is expensive and which is only read by a very small sector of Zimbabwean society. In essence the Financial Gazette preaches to the converted. It does not reach the core of ZANU (PF’s) support base, namely those in rural areas.  To that extent the articles which regularly appear in the Financial Gazette which are critical of the Government are a luxury ZANU can afford.  ZANU knows that those articles will not change the thinking of the vast majority of the electorate, and it also knows that those same articles are interpreted by the diplomatic community as evidence that we have a free press.  The reality of Government’s commitment to a free press, however, was shown in the closing down of the Daily Gazette and the recent arrest of the editor of the Financial Gazette this past weekend. The Daily Gazette in the course of 1994 began growing in stature.  It was responsible for exposing the land scandal and, in the run-up to the 1995 elections, could have proved to be very damaging to ZANU (PF) and very useful to emerging opposition parties.  Three months before the election, under pressure from a Government-controlled bank, Modus closed the Daily Gazette.  And now the Financial Gazette has finally overstepped the mark in its criticism.  It is fine to criticise Government in general terms but it is wrong for it to criticise the very core of ZANU (PF), namely the President himself.  I do not have time to comment in more detail regarding the case.  Suffice to say that in my view, the arrests of these journalists were designed to intimidate them and to get crucial evidence regarding the sources of their information.  The lesson we learn is that Government will tolerate the independent press as long as it does not shake the roots of power.  The moment the press starts to shake the roots of power then we see the true face and intent of ZANU (PF).

At the beginning of 1990, University of Zimbabwe students were becoming a major problem for Government.  It was students who protested against corruption in September 1989.  It was students who continued to protest thereafter and embarrassed Government during the 1991 Chogum meeting.  The result was the promulgation of the University of Zimbabwe Amendment Act, which was designed to clamp down on student dissent. The Act has been extremely useful and students have now complied and indeed are used by Government to protest.

Since 1990 we have seen that the growth and strengthening of civil society organisations such as the Zimrights, the Legal Resources Foundation and the Catholic Commission for Justice and Peace has been a serious thorn in Government’s side.  ZANU has in the recent past been able to dismiss its claims, accusing it of being white led and non-indigenous.  The growth of organisations such as Zimrights and the Legal Resources Foundation, both thoroughly indigenous organisations, presents a more serious problem for Government.  It is interesting to note that one of the first Acts signed by the President since elections was the Welfare Organisation Amendment Act No. 6 of 1995. This Act has received very little publicity but it presents one of the most serious threats to organisations such as Zimrights and the Legal Resources Foundation since Independence.  In terms of section 20A of the new Act the Minister of Labour can, acting on information given to him (in other words without an enquiry), suspend the leadership of organisations such as Zimrights and replace the leadership with his own nominees.  In terms of the Act the leader so suspended has no right of appeal to the Minister and, in a sentence, the entire amendment is thoroughly undemocratic and draconian. Dr Makombe spoke of Minister Shamuyarira’s shift to this Ministry as being a demotion.  I am not convinced that that is so and fear that the move, as President Mugabe himself stated, was not a demotion but deliberately designed so that Minister Shamuyarira can use this Act to undermine civil society and thus weaken another potential source of political opposition. Only time will tell whether I am right or not.

One of the principal sources of political opposition, in the broadest sense of the phrase, faced by ZANU (PF) comes from the judiciary and this is the focus of my talk this morning.  In 1990 the Supreme Court of Zimbabwe, under the leadership of the then Chief Justice Enoch Dumbutshena, had established a reputation for being one of the most fiercely independent benches in Africa.  It had repeatedly handed down judgement against the Government’s wishes and had decided a number of landmark decisions which promoted human rights and checked the powers of Government.  Sadly, Dr Dumbutshena reached retirement age in 1990 and despite efforts behind the scenes to have him stay on, it was clear Government had no intention of introducing the necessary legislation to enable this.  Coincidentally, at the end of 1990, a major Constitutional Amendment was passed introducing three crucial amendments to Section 15 and 16 of the Declaration of Rights.

In 1991 I wrote an article which was published in the Financial Gazette, which stated that it was my belief that the amendments to the Constitution were not just an effort to amend to the Constitution and to bring the Constitution in conformity with ZANU’s views on hanging, whipping and land resettlement.  I argued at the time that there was an ulterior motive and that was to undermine respect for the Supreme Court and to undermine respect for the Declaration of Rights.  The hanging provision effectively forestalled the Supreme Court from making a decision regarding whether hanging was a Constitutional form of carrying out the death penalty.  The whipping of juveniles amendment reversed a Supreme Court judgement, and the land provision excluded the Supreme Court from determining a fair value for compensation of land.  Time does not permit in this speech for me to explain fully why these amendments had an ulterior purpose and perhaps in the question time I can go into that in more detail. Suffice it to say that since 1990 the Government appears to be more determined than ever to undermine the Supreme Court and to minimise the importance of the Constitution and its Declaration of Rights.
Since May 1991 Government’s conduct in this regard has been marked by the following:

  1. There have been further constitutional amendments which have withdrawn rights of citizens, rather than enhance them.  For example, Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and Others 1993 (1) ZLR, the Supreme Court ruled that a long delay in executing a sentence of death constituted degrading and inhumane punishment in violation of Section 15 (1) of the Constitution.  Shortly after the ruling, Act 9 of 1993 was passed, amending Section 15 of the Constitution again and reversing the Supreme Court’s decision.  Indeed, Section 15 (1), which reads, ‘no person shall be subjected to torture or to inhumane or degrading punishment or other such treatment,’ has now been amended so many times by Government (there are now 5 provisos to subsection 1) that it has been almost totally emasculated.  This has all happened in a space of three years.  To give you some idea of how ridiculous these frequent amendments are I should mention that the United States Constitution has only been amended 26 times since 1776.  Another recent example of Government’s attitude is given in the Minister of Home Affairs’ reaction to the Supreme Court’s recent decision regarding the right of citizens to demonstrate.  The Minister’s response was to say that legislation will be introduced to reverse, water-down or negate the decision.  It will be interesting to see whether Government does act to amend the provisions in the Declaration of Rights enshrining the freedoms of association and expression.
  2. Government has on a number of occasions in the last 18 months shown utter contempt for the Courts and the judicial system as a whole.  The most serious example was given in the Churu Farm episode which occurred in November 1993.  The Minister of Home Affairs, the Minister of Local Government and the Police effectively disregarded an order of the High Court, compelling them to allow the residents of Churu Farm to continue residing on the property.  Indeed, that contempt continues to this day.  President Mugabe’s statement reported in the Herald on 17 July 1993, to the effect that the Government would not accept a court decision against “Government Right’s” to acquire land under the Land Acquisition Act, shows very serious contempt for the Supreme Court and the judicial system as a whole.
  3. Government has also manipulated the due process of law for its own political ends.  The most obvious example of this was the President’s pardoning of the men who attempted to murder Patrick Kombayi after their appeals had been dismissed by the Supreme Court.  The pardons have attracted a lot of publicity, and I do not propose to go into them in any detail.  What needs to be said, however, is that the pardoning was an abuse of the President’s Constitutional prerogative and manipulation of our Constitution.  It also needs to be said that the pardons were but one of the long line of Government manipulations of the legal system to suit its own ends.  To give but one example, I would draw your attention to the case of Masiwa 1992 (2) ZLR 7(s). This little-known case involved a person who was brutally beaten to death after making some derogatory remarks about the then Prime Minister Mr Mugabe.  The perpetrator of this crime was indeed fortunate that the State only levelled a charge of culpable homicide, and the Attorney General declined to transfer the case to the High Court for sentence; as a result, he was only sentenced to 7 years imprisonment, which was the maximum sentence which the magistrate could impose within his sentencing jurisdiction.  This case illustrates the fact there appears to be one law for those who support Government and another law for those who do not.  The recent pardoning by the President serves to emphasise this point.

The trend of holding the courts in contempt continues.  Last year, the Bulawayo Legal Projects Centre brought a test case to challenge Government’s immigration policies to deny the foreign husbands of Zimbabwean women citizens the right to reside in the country.  This policy was discriminatory, as foreign wives were allowed to reside in the country.  The landmark Rattigan v The Department of Immigration case was decided in June last year and established the right of foreign husbands to reside permanently in the country.  Since the judgement was handed down however, the Department of Immigration has persistently sought to ignore the judgement – so much so that the Bulawayo Legal Projects Centre is now bringing a further application to order the Department of Immigration to issue permanent residence permits to the people involved.  Furthermore, in the past year we have seen very serious attacks on the Supreme Court emanating from the editorial columns of Government controlled papers.  The Supreme Court and the High Court have been directly and indirectly attacked for the McGown judgement and immigration cases.

Recently you will have all read about the so-called Nyamandlovu Kangaroo Court involving Judge Blackie and myself.  I do not propose in this forum to defend myself or Judge Blackie, as it would be inappropriate.

Whatever the rights and wrongs of that incident are, the fact is that a High Court Judge granted bail order.  It may be, although I don’t think so, that the bail order was granted incorrectly.  However, if any order of the High Court is granted incorrectly, the correct method of rectifying the order is to bring an urgent appeal to the Supreme Court.  The Attorney General, as Government’s principle legal adviser, knows this better than anyone else in Government.  Instead of appealing Judge Blackie’s order, the Attorney General and the Home Affairs Minister ordered the re-arrest of one of the men granted bail in defiance of the bail order.  No matter how wrong the Attorney General may have thought the circumstances leading to the granting of bail were, he should have brought an urgent appeal to the Supreme Court.  As it is, that appeal was never brought and the High Court order was simply ignored. To this day the public of Zimbabwe do not know whether the Judge acted correctly or not, as the Supreme Court has not determined the matter.  What everyone seems to have missed is that the Attorney General’s actions in many ways were worse than any perceived irregularity in procedure committed by the Judge.  A precedent has now been set, whereby the Attorney General and a Government Minister can simply ignore a High Court order. This attitude strikes at the heart of respect for the rule of law.  The rule of law principle dictates that once a Court order has been issued unless the order is set aside by another Court it must be obeyed by everyone, including Government.  I am afraid that the Nyamandlovu incident is yet another example of the undermining of our judicial system.

At the time when the Nyamandlovu incident hit the headlines an elder in our church, Denson Dube, came across Psalm 64 in his quiet time and he felt that the Lord had given him this scripture specifically for me. Psalm 64:4 – 8 reads:

“They shoot from ambush the innocent man; they shoot at him suddenly, without fear. They encourage each other in evil plans, they talk about hiding their snares; they say, ‘Who will see them?’  They plot injustice and say, ‘We have devised a perfect plan!’ Surely the mind and heart of a man are cunning.  But God will shoot them with arrows; suddenly they will be struck down.  They will turn their own tongues against them and bring them to ruin; all who see them will shake their heads in scorn.”

The reason I mention that verse now is because of the arrest of the Financial Gazette journalist this past weekend – I believe we will see ZANU’s tongue being turned against it.  As you are aware, the three Modus men were arrested early on Saturday morning because they were accused of criminally defaming the good name and reputation of Mr Justice Garwe and Minister Chikowore.  Whilst I do not believe that the alleged defamation of the Government Minister is sufficiently serious to warrant a prosecution, I fully agree that the alleged defamation of Justice Garwe is serious.  Any defamatory statement made regarding a Judge, if untrue, is extremely serious as it undermines respect of the judicial system as a whole.  However, if we consider this case of Justice Garwe in the light of the Judge Blackie case, we see a very serious apparent inconsistency in the approach taken by the prosecuting authorities.  As you will recall, at the beginning of March the Herald published the Nyamandlovu story regarding Mr Justice Blackie in very emotional and defamatory terms.  He was accused of conducting a Kangaroo Court and of being a racialist.  Whilst I am obviously very close to this issue I believe that objectively I can say that those comments were more defamatory of Mr Justice Blackie than the Financial Gazette’s statements were of Mr Justice Garwe, yet no action has been taken by the editor and the publisher of the Herald, Mr Tommy Sithole, in the Blackie matter.  And it is no answer to claim that the story about Mr Justice Blackie is true and that the story about Mr Justice Garwe is not.  Whether defamatory statements are true is something that the person who made the statement has to prove if he is to be acquitted.  For the prosecuting authorities, in this case the Attorney General, to decide in advance the truth of the statements (and act on that decision) is to usurp the function of the trial court.  The point I am simply making is that the Financial Gazette case once again illustrates how badly undermined our judiciary has become through political manoeuvring.

The judiciary has been further undermined by the fact that conditions of service are still relatively bad for Judges, even though they have been improved recently.  Of great concern to me is that there are several Judges who are overtly political and, at the very least, subservient to Government.  I fear that the present Supreme Court bench and other Judges have already been softened up by attacks on them by the Government-controlled media and that as a result, they may feel constrained to act as fiercely as the Supreme Court bench did under Dr Dumbutshena.  I have great sympathy for the Chief Justice especially.  He is a fine Judge, and I know he is a man of absolute integrity.  However, I believe that he cannot act as fiercely as Dr Dumbutshena did, ironically, because he is white.  In several editorials in both the Herald and the Chronicle there have been innuendos that because he is white he has handed down certain judgements which are racist in nature.  There has been no apparent effort made by Government to rein in these editors.  The Supreme Court Judges must be somewhat bemused by the alacrity and efficiency of the arrest and prosecution of the Financial Gazette journalists, whose perceived sins against Justice Garwe are far less serious than a variety of attacks made against the Supreme Court.  But what I fear even more is that when the current Supreme Court bench retires there is a strong likelihood that they will be replaced with political judges and then the entire justice system will be seriously undermined.  This is a somewhat gloomy picture I have painted, but from it you will see that Government is very close to its goals on undermining what in many ways has become the last bastion of democracy, the last check on Government power in this country.  In doing so, it has weakened a potential source of opposition.  In summary, let me say that the legal and justice situation in Zimbabwe is grave. ZANU through its dominance of Parliament can make virtually any law it likes.  The Courts are under attack, and there is the very real danger that they will lose whatever boldness and independence they have been renowned for in the next five to ten years.

There is of course one final sector of political opposition I have not spoken about. I must stress that I use this phrase political opposition in the widest sense of the word.  That source of political opposition is of course the church.  It is fascinating in my mind that the Government has not sought to crush or intimidate the church since 1990.  Why is this?
Before I answer that question, let me emphasise that I do not believe that the church should be involved in formal politics in any manner whatsoever.  I have spoken publicly on this topic and firmly believe that the church as an institution should distance itself from any individual political party or agenda.  Of course, I strongly believe that individual Christians should be involved in formal politics.  However, it is the church’s role to stand up for God’s standards of justice and to speak out whenever the Government of the day and its citizens are violating those standards.  Sadly, the history of the church in Zimbabwe in the last 30 years, albeit with a few notable exceptions, shows that it is thoroughly compromised and weak.  In the pre-independence era the white church by and large did not stand up God’s standards of justice regarding racism and discrimination.  In the 1980s the church by and large was silent on the genocide which happened in Matabeleland and indeed is still silent.  In the 1990s the church has been mute in the face of rampant corruption and abuse of power.

In October last year, I was encouraged to read that Africa Enterprise had organised a presidential prayer breakfast.  As you all know, in the breakfast his Excellency the President told the church not to be afraid to deliver “a message of light”.  In November last year, I wrote an open letter to the President in response to his challenge highlighting for areas of concern, namely:

a)     Corruption – I referred the President to Isaiah 1:23 -31:

“Your rulers are rebels, companions of thieves; they all love bribes and chase after gifts… therefore… I will purge my hand against you, I will thoroughly purge away your dross… the mighty man will become timber and his work as spark; both will burn together, with no-one to quench the fire.”
b)    Failure to compensate the windows of Matabeleland – I referred the President to Exodus 22:21 -24:

“Do not take advantage of a widow or an orphan.  If you do and they cry out to me, I will certainly hear their cry.  My anger will be aroused, and I will kill you with the sword; your wives will become widows and your children fatherless”.

c)     Perverting justice – I referred the President to Micah 3:9:

“You rulers… who despise justice and distort all that is right… therefore because of you, Zion will be ploughed like a field, Jerusalem will become a heap of rubble, the temple hill a mound overgrown with thickets.”

d)    Idolatry – I referred the President to Acts 12:21 -23:

“On the appointed day Herod, arrayed in his royal robes, took his seat on the throne and made a public address to them.  The mob shouted, “The voice of a God and not of a man!”  But instantly an angel of the Lord struck him, because he did not ascribe the glory to God.  He was eaten by words and died.”

Time does not permit me to go into why I felt that the President should take heed of the warnings contained in these scriptures.  Suffice it say that I warned that history was replete with examples of leaders who flouted God’s standards of justice and whose political careers had come to a sorry end.  The letter concluded with a quotation from Isaiah 40:23 -24:
“He brings Princes to nought and reduces the rulers of this world to nothing.  No sooner are they planted, no sooner are they sown, no sooner do they take root in the ground, and he blows on them and they wither, and a whirlwind sweeps them away like chaff.”

I need to stress that the letter was also addressed to the wider church.  I did not expect a response from the President.  What disturbs me is that I have received no response from the church.  At the very least I expected some form of criticism. Perhaps the verses I used were wrongly applied.  Whilst of course it may be that people in the church have not read the letter I am concerned by the lack of debate.  Is it that the church is not concerned about these issues?

I fear the church has become so compromised that it has lost its voice.  The only response I have seen to the Presidential breakfast is contained in the latest Zimbabwe Update published by African Enterprise.  In that there is a paragraph which reads:
“The Christian community in this country is blessed to have a State President who           can publically pronounce with his own mouth that “Jesus Christ is Lord!”  Another  national presidential prayer breakfast is in the pipeline and we must thank the Lord   for that.”

Presumably this Zimbabwe Update was printed before the revelation that the President committed adultery (and sired two children) with a woman before his wife died.  Dr Makombe spoke of the silence of the Church on this issue.  Why is it that the church has been so silent? Is it not good enough to have a State President who can pronounce with his mouth that Jesus Christ is Lord.  Once he has made that pronouncement he is proclaiming himself to be a Christian and a very public one at that.  Once he has proclaimed himself as a Christian then he must become subject to the discipline of the wider church.  I do not mention this issue to focus in on the sins of the President.  All of us have sinned; none of us are without blemish.  The point I seek to make is that the Church is in danger of becoming irrelevant if it displays double standards.  There is a price the Church has to pay for lauding somebody and yet not to seek to make that person accountable.

There are frightening parallels between the Church in Germany in the 1930s and the Church in Zimbabwe in the 1990s.  The Church in Germany collaborated with the Nazis.  It turned a blind eye to injustice and in doing so became irrelevant.

This year I have sought solace by reading a biography regarding Dietrich Bonheoffer.  Writing from a Gestapo controlled prison in1944 Bonheoffer said:

“We are once again being driven right back to the beginnings of our understanding. Reconciliation and redemption, regeneration and the Holy Ghost, love our enemies, cross and resurrection, life in Christ and Christian discipleship – all these things are so difficult and so remote that we hardly venture anymore to think of them.  Our church, which has been fighting in these years only for its self-preservation, as though that were an end in itself, is incapable of taking the word of reconciliation and redemption to mankind and the world.  The day will come when men will once more be called to utter the word of God and the world will be changed and renewed by it.  It will be a new language, perhaps quite non-religious, but liberating and redeeming- as was Jesus’s language; it will shock people and yet overcome them by its power; it will be the language of a new righteousness and truth, proclaiming God’s peace with men and the coming of his Kingdom. “They shall fear and tremble because of all the good and all the prosperity I provide for it” (Jeremiah 33:9).”

As I read these words for the first time I was struck by the fact that they could just as easily apply to Zimbabwe today.

Is there not a real danger that the reason why our Nation’s morality has become so decayed is because of the frailty of the church?  And is it not also true that one of the reasons why the church in Zimbabwe is so frail is because we have been fighting for our self-preservation? The church in Zimbabwe, and I include myself, has been compromised by materialism, selfishness, and an unwillingness to take God’s Word seriously.  Bonheoffer once wrote:

“What does it really mean to be a Christian?  It is the life described in the beatitudes, the life of the followers of Jesus, the light which lights the world, the city set on the hill, the way of self-renunciation, of utter love, of absolute purity, truthfulness and meekness.  It is unreserved love for our enemies, for the unloving and the unloved, love for our religious, political and personal adversaries.  In every case it is the love which was fulfilled in the cross of Christ.  The Cross is the differential of the Christian religion, the power which enables the Christian to transcend the world and to win the victory.”

It is necessary to come full circle back to Nehemiah.  In Nehemiah 9:26 we read:

“But they were disobedient and rebelled against you; they put your Law behind their backs.  They killed your Prophets, who admonished them in order to turn them back to you; they committed awful blasphemies so that you handed them over to their enemies, who oppressed them.  But when they were oppressed they cried out to you.  From heaven you heard them, and in your great compassion you gave them deliverers, who rescued them from the hand of their enemies.”

Is it not true that we as a church have put God’s Law, God’s standards of justice, behind our backs?  We have been timid as individuals and collectively in proclaiming God’s standards and laws.  Because we as a church have failed to do this for the last 30 years, we as individual Christians have been handed over to our enemies who oppress us.

But we must take comfort in the fact that our Lord is compassionate.  We need to learn to put His law in front of us and let it be our shield and our light.  We need to learn to analyse everything that happens in this country in light of God’s standards of justice and his laws.  When bad actions happen in Zimbabwe which violate God’s laws and standards of justice we as individuals, churches and para-church organisations have the duty to speak out boldly to proclaim God’s laws and standards and to point out where the actions of man do not meet those laws and standards.  In doing so we need not be depressed regarding the calamitous situation facing the justice system, as our Lord’s promise is that we will be rescued from our enemies.

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