THE 1998 LAW SOCIETY OF ZIMBABWE SUMMER SCHOOL

Introduction

The phrase “culture of human rights” evokes many different meanings in different people. One person’s definition of “culture” will differ very greatly from another person’s definition. Likewise the term “human rights” on its own is usually interpreted subjectively. What one person may view as a human right may be viewed by another as a crime.

Culture is defined in my dictionary as “a type of civilisation”, a “refinement”. Civilisation is defined as an “advancement beyond the primitive, savage state,” a state marked by a sophisticated, self-controlled, fair and enlightened environment. However one has a problem too with the word “civilisation” as it means many different things to many different people. For example Thomas Carlisle, wrote, in the nineteenth century, that: “the three great elements of modern civilisation are gunpowder, printing and the Protestant religion”.

The civilisation propounded by Carlisle has not exactly had the positive effect in creating a human rights culture in the world in the twentieth century; a century which has seen some of these elements used to promote ideologies profoundly adverse to a human rights culture. In sum it is very difficult to find common ground as to what we mean by a culture of human rights.

It will be obvious that there is a need to agree on what we all mean by a “culture of human rights” if we are to debate this topic effectively. What then could be an objective definition of a culture of human rights? Religious people, be they Christians, Moslems or Hindus, or whatever, would argue that there is, in the words of the late Richard Turner, “a transcendent morality which determines what a human rights culture is”. Richard Turner in his book “The eye of the needle” wrote:

“The essence of all religions lies in the concept of transcendence, that is, in the idea of something which goes beyond the present, which goes beyond what people are doing in the world at this moment, and in the light of which the present is only of secondary importance. The transcendent ethic demands that we question our taken-for-granted ways of behaving, that we continually question them”.

Jesus Christ once said that one of the principal commandments was to “love your neighbour as yourself”. Most religions, would, in one way or another, adhere to that fundamental principle. In other words at the very essence of the term “culture of human rights” must be a society which treats its people in the same way individuals in that society would want to be treated themselves. Perhaps another way of finding an objective definition would be by referring to the United Nations Declaration of Human Rights. I think that most sane people would agree that United Nations Declaration of Human Rights reflects the fundamental rights which we all, universally, cherish and would want to be applied to ourselves. We can then say that a country which enjoys a “culture of human rights” is a country which respects and enforces the fundamental rights contained in the United Nations declaration.

Against that background can we say that Zimbabwe has a culture of human rights? In other words is Zimbabwean society marked by respect for these basic rights? Are those universally accepted rights deeply ingrained in our society? Does the Government of the day promote these rights? Do our laws conform to these rights?

Sadly when we look back on the history of this country over the last hundred years since it became a defined and modern nation state, it is a reality that Zimbabwe, and before it Rhodesia, has not had a proud record of respect for human rights. Its history is such that
it was created as a modern nation state not through consensus but through the barrel of the gun in the 1890’s. Its transformation from white minority rule to black majority rule also came through violence. That violent history has not promoted a culture of human rights. On the contrary the acquisition and maintenance of power by force has created a very conservative society, a society which in many respects does not cherish human rights. And I need to state at the outset that when I talk about a conservative society I mean a society which spans the racial and ethnic divide. In other words both black and white Zimbabweans are deeply conservative. In this regard I am reminded of the words of Martin Luther King said in the American context:

“Our cultural patterns are an amalgam of black and white. Our destinies are tied together. There is no separate black path to power and fulfilment that does not have to intersect with white roots. Somewhere along the way the two must join together, black and white together, we shall overcome.”

We need to recognise that there is no such thing as a white or black human rights culture. The history of our nation has been dominated by black and white politicians and their respective systems of governance which have together stifled the emergence of a human rights culture. As you will see from this paper it is my belief that we do not have a strong culture of human rights in Zimbabwe (if at all) and that this is the result of decades of rule by regimes which have had scant respect for human rights.

If then we do not have a culture of human rights, or if our culture of human rights is in its infancy, how then do we describe our human rights culture in Zimbabwe, such as it is? I propose to look at four elements of Zimbabwean society, four elements of our Zimbabwean culture which reflect our attitudes towards human rights and influence our views regarding the constitutional debate.

1. The culture of unquestioning trust in and respect for political leaders

King Lobengula, Cecil John Rhodes, Ian Smith and Robert Mugabe are four powerful, charismatic leaders who have dominated the political landscape of Zimbabwe over the last hundred years. Very few countries in the world, let alone Africa, have been influenced so greatly by politicians such as these men. Many countries have of course endured dictators and despots; very few have had a succession of such all powerful leaders. This historical fact is partly because of the character of the individuals themselves and partly because of the culture of Zimbabwean people, black and white. The people of Zimbabwe, and before that, the people of Rhodesia, by and large have turned a blind eye to the folly of their leaders. We have developed the culture of the “chef”; men allowed to rule our nation without restraint.

This has happened in part because it seems as if the vast majority of our people believe in the inherent goodness of our leaders. We have allowed our leaders to become demi-gods and I need to emphasise that this is not a phenomenon of Zimbabwe. Rhodesians too had pictures of “good old Smithy” on their walls. Smith in many ways became a demi-god in the eyes of white Rhodesians. Robert Mugabe has perpetuated that model and refined it. His motorcades and photographs constantly remind us of his demi-god status. Young people may be forgiven for thinking that the demi-god status of Mugabe is something new in the history of this country. The reality is that the culture of this nation allowed Rhodes to beget Smith and Smith to beget Mugabe. Over the last century we have developed a political culture that holds that our rights as individuals are subordinate to the wisdom of our great leaders.

Tragically this culture has permeated throughout society. Leaders are to be revered in all sectors of society; their actions are not to be questioned. This applies to leaders in many fields from Senior Partners in law firms to the headmasters and boards of schools. In the fifteen years that I have been back in Zimbabwe I am constantly amazed by the authoritarian attitudes shown by many leaders. I am often equally amazed by the unaccountability of leaders in all sectors of society. The unpalatable reality is that we have developed a culture of unquestioning trust in, and respect for, our leaders, especially our political leaders.

It is no surprise then that all the parties to the Lancaster House conference agreed to a constitution which allowed for excessive power to be granted to the executive. Whilst it is true that the Lancaster House constitution had a more balanced separation of powers than its post 1987 amended version, the fact remains that the original constitution always allowed for a dramatic shift of power to the executive. The original Lancaster House constitution never had effective mechanisms to block this transfer of power from the legislature and judiciary to the executive. No doubt this was agreed to because virtually all those who attended the Lancaster House conference hoped to be able to rule and to use the constitution to their own best advantage. The Zimbabwean public mutely accepted that because, in my view, of the belief that their political leaders were essentially good and would do the right thing.

In this regard it is interesting to contrast the position adopted by the framers of the Lancaster House constitution with the beliefs of the founding fathers of the American constitution. Madison writing in the Federalist Papers (number 51) wrote:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection in human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Lord Acton in a letter to Bishop Mendell Creighton on the 3rd April 1887 wrote:

“Power tends to corrupt and absolute power corrupts absolutely”.

Both Madison and Lord Acton understood the tendency for man to do the wrong thing if given unfettered power. In other words both recognised that man has a natural bias towards doing the wrong thing if given an opportunity to do so. Because of white Rhodesians view that political leaders like Rhodes and Smith were near perfect, Rhodesians allowed constitutions which gave unfettered powers to its leaders. That attitude influenced the Lancaster House deliberations and resulted in a constitution for Zimbabwe which gave unfettered power to its rulers. The tragedy for Zimbabwe and President Mugabe himself is that he is now the product of that constitution. I believe that when President Mugabe first came to power he was well intentioned and was not corrupt. However he, like all politicians, was not an angel and was unable to deal with the absolute power granted to him. As a result during his tenure public office has systematically and increasingly been abused for profit.

The challenge for us as Zimbabweans in the constitutional debate is to recognise that far from having a culture of human rights which seeks to make our political leadership accountable to us, our society is characterised by an absence of this culture. Whilst it is encouraging to see the slow development of a human rights culture in this regard it is still in its infancy. There is a grave danger that the majority of Zimbabweans do not understand the link between unfettered power granted by the constitution and corruption. And there is a great danger in the constitutional debate that the ZANU (PF) hierarchy will exploit this naivety to subvert the debate: to concentrate the debate on declaration of rights issues rather than to focus on issues which relate to the diminution of power granted to the executive.

It is incumbent upon us as legal practitioners to recognise that there is this negative culture in our society which makes demi-gods of our leaders. We need to ensure that our future constitution has measures which counter this tendency; measures which counter the tendency to make demi-gods out of our political leaders, measures which encourage a culture which recognises that our political leaders are not special people, simply civil servants who are accountable to the electorate. If the constitutional debate is going to result in meaningful change to our nation it is accordingly imperative that the focus of the debate should be on redistributing power, moving power away from the executive towards the legislature and judiciary. The debate must concentrate on the limitation of terms of our political leaders, on implementing measures which ensure that our leaders do not have the opportunity to become demi-gods and which ensure that they become just as accountable to the electorate as any other citizen of Zimbabwe.

2. Culture of deviousness and tendency to obfuscate

Another historical reality of Zimbabwe is that power has often been obtained by political leaders through deviousness and trickery. Once again this goes back to Rhodes and the manner in which the Rudd Concession was obtained. There is no doubt that Rhodes and the colonials tricked Lobengula. Equally true is the fact that the deviousness of Rhodes was obfuscated by Rhodesians for decades. The politically correct interpretation of history was that Rhodesia had been colonised as a result of lawful treaties and that control was only gained over the entire country after those treaties were breached by Lobengula. The pattern of deviousness and obfuscation continued and indeed became more entrenched during the UDI period when sanctions were imposed on the country. In the white business and political community it was thought honourable to be able to break sanctions. An entire culture of deviousness was created as a result. Another casualty was transparency. If Rhodesia was to survive it was important that much of our business and political dealings should be veiled in secrecy. An entire generation of business and political leaders grew up knowing that as the only way to do business. And the black nationalist leadership was little better. The nationalist leadership ethic was moulded in the context of warfare. Guerrilla war dictates that one has to work behind a facade. There cannot be transparency in war; especially war waged using guerrilla tactics.

Both black and white Zimbabweans went through a few decades of understanding that there could not be transparency and that their leaders, to achieve their political objectives, would have to resort to devious tactics. It was this understanding which has developed a culture in Zimbabwe which I have spoken about above, namely that of unquestioning trust being placed in our leaders notwithstanding the fact that we do not know what they are up to. So it is also that Judges, Ambassadors, members of commissions of enquiry are appointed without the public having any idea as to their suitability for the job. Our members of parliament and cabinet ministers are not required to disclose their assets or sources of income. And this culture has spread throughout society.

As a nation we need to ask the question: can we say with any conviction that we have a culture of transparency and openness? I think not. I think the reality of our culture, black and white, is that we are often not committed to transparency in many of our dealings. We are often not committed to free and open debate.

In this environment it is no surprise that corruption has flourished. Once again as we approach the constitutional debate it is not as if we need a constitution which will protect pre-existing cultural norms which uphold in honest dealing and transparency. Because of the absence of regard for these ethical principles in society we have to design a constitution which will promote a positive culture, a culture which honours transparency, openness and integrity.

In this regard it is vital that the electronic media be opened up to promote open and frank debate on all manner of issues. It is equally important that we have a constitution which will impose systems on us which enforce transparent procedures for the appointment of Judges, Ambassadors, Heads of parastatals and the like. In the United States and other countries that role is given usually to the legislature. American Judges, Ambassadors and other people are subjected to scrutiny by the United States senate before their nominations by the executive are confirmed. We need the same mechanisms; we need public parliamentary investigation and open questioning of all who aspire to public office. And these mechanisms must be set out in, and guaranteed by, the constitution.

3. Judicial activism-part of our human rights culture?

Richard Turner, in his book “The eye of the needle” referred to above wrote:

“The structure of South African society today is a function of its past.”

The same applies to any country and of course Zimbabwe. Our judicial structure is certainly a function of Zimbabwe’s past. The hundred year history of the country is such that its judiciary, and legal system in general, has been perceived and very often has been (and is), simply an arm of government – an arm of government designed to protect the ruling elite at the expense of the interests of the majority. This reality was more obvious during the colonial era when white judges were clearly aligned with the white minority government. The stark record of the Rhodesian judiciary was that it upheld the status quo and was not the vanguard of a human rights movement. There were of course exceptions like Justice Tredgold; men who were not prepared to give legitimacy to an unjust system.

And it was not as if the Rhodesian judiciary had to perform the role it did. At the same time the Rhodesian judiciary was upholding the status quo the Warren Court in United States was engaged in judicial activism. The first African/American judge of the United States Supreme Court, Thurgood Marshall once said: “move, but move within the constitution, and find new ways of moving non-violently within the constitution, bearing in mind that there are many of us in this country who are not going to let it go down the drain”.

These remarks of Justice Marshall illustrate the commitment of members of the Warren Court to promote human rights. The Warren Court was lambasted by its critics for its judicial activism. The Warren Court stressed the rights of individuals and the breadth of changes brought by it was monumental. The Supreme Court, more so than the legislative and the executive in the United States in the 1960’s outlawed segregation, excluded illegally seized evidence in criminal procedure, entitled indigent criminal defendants to legal representation and restricted the right of public officials to sue the press for libel. This was achieved in a deeply conservative political environment where the majority of people were probably opposed to the civil rights movement and the development of a human rights culture. The point I’m making is that the Rhodesian judiciary did not seek to carve out a similar niche for itself. This was exacerbated by a legal profession which did not have a human rights culture. Very few lawyers were prepared to challenge the status quo and there were no human rights organisations in the colonial period formed by lawyers.

The situation has improved in Zimbabwe since independence. The 1980’s saw the emergence of a Supreme Court under Dr Dumbutshena which was judicially active. At the same time various human rights organisations emerged. Sadly in the 1990’s it has to be said that the Supreme Court has lost some ground. The High Court in particular has been undermined by what I term politically correct appointments; that is Judges have largely been appointed because of their obvious connections to ZANU PF or because of their obvious neutrality regarding human rights issues. Once again there are exceptions to this but the unpalatable reality is that there are probably a majority of Judges now who are not committed to judicial activism and the promotion of a human rights culture. The situation has been exacerbated by the executive’s will to dominate the judiciary which is well chronicled in constitutional amendments and the like. The judiciary in any country is always susceptible to this undermining.

Hamilton in the Federalist Papers (No.78) recognised this when he wrote:

“the judiciary is beyond comparison the weakest of the three departments of power; it can never attack with success either of the other two. All possible care is requisite to enable it to defend itself against their attacks. Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security”.

The new Chief Justice of South Africa, the Honourable I Mohamed, (the South African Law Journal Volume 115 part 1(1998) page 112) recently said:

“Unlike Parliament or the executive, the Court does not have the power of the purse or the army or the police to execute its will. The superior Courts and the Constitutional court do not have a single soldier. They would be impotent to protect the constitution if the agencies of the state which control the mighty physical and financial resources of the state refuse to command those resources to enforce the orders of the courts. Its ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity. No politician anywhere, however otherwise popular, would want to be seen to defy the order of a court enjoying within the nation a perception of independence and integrity; he or her future would then be at mortal risk. Judges therefore have a very crucial interest in securing and nurturing their reputation for independence and integrity. What judicial independence means in principle is simply the right and the duty of Judges to perform the function of judicial adjudication, through an application of their own integrity and the law, without any actual or perceived, direct or indirect interference from or dependence on any other person or institution.”

Justice Mohamed then went to illustrate the conditions necessary for ensuring that the judiciary is independent and occupied by persons of integrity. Amongst other things he advocates that the appointments of Judges need to be fair, transparent and reasonable. Judges’ salaries need to be fair and they must enjoy adequate tenure. They must enjoy adequate secretarial facilities. The composition of the judiciary should ensure a balance of gender, class and colour. The judiciary needs to be continually concientised to the problems of the marginalised. Judges need to ensure that justice is procedurally fair, and fair in its impact.

All of these comments equally apply to Zimbabwe. I do not believe it is an unfair criticism to say that whatever human rights culture our judiciary has is in danger of waning. The constitutional amendments since 1987 which have vested power in the President to determine the composition of the judiciary, together with the imbalance of power in favour of parliament and the executive have undoubtedly contributed to this situation. Accordingly if we are to promote a human rights culture within the judiciary we need to ensure that a new constitution enshrines the principles referred to by both Hamilton and Justice Mohamed. That will entail the public scrutiny of Judges before their appointments are confirmed. I have no doubt that that suggestion will be extremely unpopular in this country but it is a necessary measure if we are to promote a human rights culture. But the other side of the coin is of course that our Judges need to be made more independent. The constitution needs to ensure that Judges get equipment more appropriate to their jobs than Mercedes Benzes, which after all make them susceptible to political pressure (in the sense that they become aligned in the minds of the people with the ruling elite.) I am not sure that most of our Judges would necessarily have chosen Mercedes Benzes had they had more control over the allocation of their budget. In recent conversations I have had with High Court Judges complaints have been made to me about the inadequacy of libraries, a shortage of computer equipment and the need for more qualified research assistants. In the broader context of the legal system it is appalling that so little money is allocated to the publication of law reports. All of this can be achieved if the necessary constitutional protections are enacted. This in turn will preserve a human rights culture in our judiciary will in turn foster a wider human rights culture in society.

4. Do the Zimbabwean populace have a human rights culture?

Zimbabweans, black and white are among the most conservative peoples in the entire world. That is partly due of course to the tightly controlled electronic media that has dominated our political landscape and debate for the last thirty years. It is true in some respects that that conservatism works to our benefit. As I have stated above the term “human rights” is very subjective and what a person in Western Europe may consider to be a right may be viewed by a Zimbabwean quite correctly as criminal conduct. I, for example, have strong views against abortion on demand; I believe strongly in the right to life but my views in that regard would be held to be reactionary in the United States or Canada. I would hardly be recognised as a human rights activist in those countries; on the contrary I would be viewed with some suspicion. Indeed it is an indication of how deeply conservative Zimbabwean society is that a person like myself can be described in Zimbabwe as a liberal and a human rights activist. I have no doubt that in most western countries I would be described as a conservative.

The point is that when we come to debate the constitution we need to understand that the Declaration of Rights must not be viewed as a document which will protect a pre-existing culture of human rights in Zimbabwe. The reality of Zimbabwean society is that by and large we do not have a human rights culture (in a Western European or American sense) and therefore we need a Declaration of Rights which will enable the development of a culture compatible with the Universal Declaration of Rights and acceptable to the majority of our people.

I believe that one of the great dangers in the present constitutional debate is that the human rights fraternity will concentrate on a liberal declaration of rights. As I have said above ZANU (PF) is well aware of the conservative nature of Zimbabwean society and is ready to exploit that conservatism to subvert the entire constitutional reform process.

To give but one example let us consider the debate regarding the death penalty. I suspect that the vast majority of Zimbabweans are probably in favour of the death penalty. Their views in this regard flow from a simplistic understanding of judicial procedures in the country. Logically the majority of our people believe that if one man kills another and is found guilty he must therefore lose his life. We in the legal profession know the realities of the legal system: that often poor rural defendants will receive inadequate representation and that there is a much greater chance of poor rural black people than there is, say, of white, urban, wealthy people being sentenced to death. In other words people outside the legal profession have the naive belief that only guilty people are sent to the gallows. We in the legal profession know that the reality is sometimes far different. One of the reasons why I oppose the death penalty is because of the inadequacies in our legal system. I fear that innocent people may be sent to the gallows and as a result am quick to argue that the death penalty should be outlawed by our Declaration of Rights.

However I have no doubt that ZANU (PF) will exploit the conservative views of the electorate and its control over the media to entrench the death penalty. Accordingly as we approach the constitutional debate we need to bear in mind the fact that the human rights culture of Zimbabwe is at best a fledgling culture and at worst non-existent. Because of this we need to employ a wise strategy to ensure that human rights are adequately protected in the context of Zimbabwean society. So taking the death penalty debate as an example, I believe that rather than seek to outlaw the death penalty we should seek to build mechanisms into the constitution which introduce safeguards. For example I believe that we need to change the burden of proof in capital offences. The State should be required to prove its case beyond any doubt before the death penalty is imposed. Likewise the State should be obliged in terms of the constitution, to pay all reasonable charges of a legal practitioner of, say, not less than fifteen years experience to ensure the adequate defence of all people facing capital charges.

Time does not permit me to deal with other aspects of the Declaration of Rights. Suffice it so say that an extremely sensitive approach needs to be taken in tackling issues such as affirmative action, discrimination on the grounds of sexual orientation, women’s rights and citizenship rights. There is a grave danger that ZANU (PF) will exploit conservatism and its control of the media to bring about a Declaration of Rights which does not reflect universally accepted human rights values. My example of the death penalty is used to illustrate how the conservative views of the majority of the people can be accommodated and yet individual rights protected effectively at the same time.

I am generally envious of the South African Constitution and its Bill of Rights. In my view the ideal would be to push for similar rights to be included in our Constitution. But, as I have stated before, it is vital that we ensure that ZANU (PF) is not allowed to subvert the entire process by focusing on the Declaration of Rights to the detriment of the more fundamental changes that are required to the constitution such as the balancing out of powers between the three arms of the government.

Conclusion

A fairly gloomy picture has been painted of our present human rights culture in Zimbabwe, or rather the absence of it. There is no doubt that a human rights culture is emerging in Zimbabwean society but it will take decades to develop and strengthen. Given the economic woes of the nation it is no wonder that economic issues tend to dominate political discussions and human rights issues are usually dismissed as irrelevant to economic progress. However the reality of the world is that the strongest economies in the world are found in countries which have developed a deeply entrenched and respected human rights culture. It is a fact that the strongest economies in the world, namely those of North America and Western Europe, are in countries which respect universally accepted human rights. In contrast the countries with the worst economies are very often those with an under developed human rights culture. The Indonesian, Malaysian and other Asian tiger economies were, until recently, held up as examples of how economies could thrive in authoritarian regimes. Their subsequent collapse gives the lie to that argument.

We as legal practitioners in Zimbabwe have often fallen into the same trap of believing that we will prosper by focusing on our own businesses, on a positivistic approach to the law. Many legal practitioners in Zimbabwe have not understood the fundamental link between respect for human rights and strong economies. Legal practitioners in any country have a major role to play in legislative reform. All the more so do legal practitioners have an important role to play in any constitutional reform process. There is a window of opportunity in Zimbabwe to develop a Constitution which will promote the development of a strong human rights culture and consequently a strong economy. However that window of opportunity will not avail itself long and it is vital that we, as the Legal Profession, engage ourselves vigorously in the constitutional debate if we wish to practise in a country that will prosper in future.

Mr Chairman, Gentlemen,

When Bill Lewis asked me about a month ago to speak tonight I was delighted for two reasons. Firstly I looked forward to the opportunity of being able to speak to fellow members and friends. I’m afraid that that hope has been dashed somewhat because a few moments ago, the Chairman turned to me and said:

“Would you like to speak now – or shall we let them go on enjoying themselves a little longer?!”

However all is not lost because the second reason for my delight at being able to speak tonight is still present. Some thirty-one years ago, in June 1967, my father, Bill Coltart, proposed the toast to the Club’s guest on that occasion, Mr Harry Oppenheimer. It is a great honour for me to be able to follow in his footsteps. Indeed I know that your invitation has given him a great deal of pleasure. I spoke to him this morning and he conveys warm greetings to you all.

Looking back over the last thirty years much has obviously changed in Zimbabwe and in the operations of the Club. There have been positive changes in the Club. For example I believe that there is a much greater spirit of tolerance in the Club. I recall that some twenty-five years ago my father stopped putting forward names for membership after a person he had proposed was black-balled for his liberal political convictions. My father was deeply annoyed and felt that only unsociable behaviour should be grounds to cause a man to be black-balled. It is gratifying to see a club which is now open to people of all races and political persuasions. Sadly however I suspect that there are also negative changes in the Club if the Club itself is a reflection of the standard of ethics prevailing in the professional and business community today. I’m aware that one of the fine traditions of the Club in the past was that it insisted on very high standards of integrity and business practice from its members. Whilst there is no doubt that our income tax laws have made more liars out of Zimbabwean businessman than golf or fishing it is nevertheless an unpalatable truth that many in business today are not committed to the same business principles and ethics which prevailed thirty years ago. Conversely it is surprising how some things have not changed in thirty years. For example Bulawayo is still on water rationing as it was thirty years ago. In that regard do you know why Harare has the most lawyers and Bulawayo the most disastrous water situation? Because Bulawayo had first choice!

But there is something else that hasn’t changed in Zimbabwe in thirty years that is until recently. Thirty years ago it seems to me that the business sector in the then Rhodesia suffered from misguided optimism. In the late 1960”s and early 1970’s Rhodesia enjoyed an economic boom and business confidence was high. I say that that optimism was misguided because the political fundamentals of the country were not in order. In other words whilst the political conditions of Rhodesia in the late 1960’s and early 1970’s were good enough to secure short term economic goals they were not secure enough to sustain long term economic goals. Is it not true that in the same way up until black Friday last November there was similar misguided optimism in business circles in Zimbabwe? I must confess to having been amazed at the optimism shown in the business sector for the last few years and to being equally amazed by the astonishment displayed by the business community when everything started to fall apart.

The reason I was amazed was because it was all too predictable and was because we have never had the best foundation for economic growth which is true and sustainable democracy. Just as the economy of Rhodesia in the 1960’s and 1970’s been doomed to failure so too our economy in the 1990’s was doomed to failure. A study of world economies shows that the world’s best economies are founded on transparent, accountable and just systems of governance. Rhodesia did not meet those basic criteria and nor does Zimbabwe. Sadly in both Rhodesia and Zimbabwe the business community felt that it could prosper in the long term by collaborating with the Government of the day and turning a blind eye to the injustices perpetrated by them.

But there is a further reason why business optimism was misguided and that relates to the change in business ethics in Zimbabwe in the last thirty years. Evasion of taxes, paying of bribes and general involvement in corruption has become common and accepted practice in business circles.

Many no longer frown upon people in businesses who do not maintain ethical standards. The business community itself seemingly feels that it can prosper in the long term and is often guilty of fuelling corruption in society. Once again any study of the strongest economies in the world shows that good economies are founded on respect for the rule of law and abhorrence of corruption. That is not to say that corruption does not thrive in other countries. I’m simply saying that in the strongest economies of the world corruption is not an accepted mode of business practice and when found is ruthlessly dealt with. Regrettably our chickens have come home to roost in this regard.

Paradoxically as we stand amidst absolute economic chaos in Zimbabwe today there is reason for hope for the first time in decades. I say this for two reasons.

Firstly, for the first time in the last thirty years we have an opportunity to construct a suitable political foundation and structure which is necessary for long term and sustainable economic growth through peaceful means. The growing clamour for change to our constitution combined with the unpopularity of the present government provide us with a chance to build structures in this country which will effectively fight corruption and create an environment where there can be transparent and accountable governance. There is also the realization in business circles, I believe, that whatever faith they had placed in the present government and our system of governance was in fact misguided. Most importantly there appears to be a growing consensus amongst NGOs, the business community, churches, and other sectors of civil society and even within government of the need for major revision of our constitution. I do not believe that this country has ever enjoyed such a wide spread consensus regarding a particular issue and in that fact alone there is great hope.

Secondly, and this is a critical factor, that the economic fundamentals of Zimbabwe have not changed in the last year. In other words the factors which realistically gave rise to optimism prior to Black Friday last year are largely still present. Zimbabwe’s rich natural resources, its productive workforce, its system of good roads, its competent professions, its good judiciary, its wonderful climate, its minerals and superb tourist attractions have not changed. In other words if we manage to get the political environment correct Zimbabwe still has its assets intact which could spur dramatic economic progress in a short space of time in future.

An analysis of what has happened in the last year shows that the main reason why our economy is floundering is because of a total loss of business confidence. It is not because oil prices have dropped or the country is in a state of war. The economy is in trouble simply because a corrupt and unaccountable government has made foolish decisions which decisions have in turn destroyed business confidence. The point is that economy can be turned around quickly if business confidence is restored.

It is in this context that I have hope. We have a window of opportunity which has not been there for many many years. But we need to realise that that window is not opened very wide and will not remain open for very long. How then do we seize this opportunity and help create a future for ourselves and our children in this country?

Many people I speak to feel totally helpless in the present situation. They feel as if the economy is running out of control and that there is very little that they can do about it. It is probably true that as individuals there is little that we can do to reverse the calamitous situation prevailing in the country at present. However as a business and professional community and certainly as members of this Club there are two important measures that can be taken to reverse the tide.

The first measure is that as members of the Bulawayo Club we have to do everything possible to encourage our members to revert to the business ethics that were prevalent thirty years ago. It is important that we encourage our members to realise that we are, in part, responsible for the economic chaos prevailing in the country. We are responsible in the sense that at the very least we have turned a blind eye to corruption and at worst we have ourselves got involved in business practices which would have been frowned upon thirty years ago. In fact many members I have no doubt engage in business
practices which would have resulted in members of this Club losing their membership thirty years ago. I do not have the time tonight to talk about how we achieve that objective within the Club but I have no doubt that it will start with the determination of a few to honour those principles.

Secondly, I believe that the time for fence sitting has passed. In 1995 I campaigned in the Bulawayo South Constituency for Washington Sansole, who in my view, is an honourable man and would have made a first class Member of Parliament. However in fighting that election we received very little support from the business community. I recall writing a letter in about 1994 to a large company in Bulawayo requesting assistance. I received a reply from its managing director, who is a member of this Club, stating that the company would not give donations as it did not get involved in any form of political activity. I found it somewhat ironic that the letterhead on which the letter was written bore the names of at least two ZANU-PF central committee members! The response from the business community generally was extremely poor and we fought that entire election on a very small budget. In Bulawayo South we lost by a very small majority and I have no doubt that if we had had adequate funding we may well have been able to win that seat. Furthermore there was also shocking apathy shown by many people. Hardly any people attended meetings which were advertised and so they had no idea of what Washington Sansole stood for or what he would attempt to achieve in parliament. In 1995 I argued that that election was possibly our last opportunity to make a start along the road to meaningful democracy through creating an effective opposition. That opportunity was lost and I hope that we do not fail to grasp this new opportunity which avails itself to us. In this regard I believe that members of this Club need to be challenged to change the practices which have prevailed in this Club for the last thirty years, namely that of not speaking out stridently regarding unjust and foolish policies of government. Whilst I have no doubt that in our quiet discussions held over dinner or at the bar in this Club members are very forthright in their views, consideration should be given to encourage members to translate those strong, but silently expressed views, into positive and effective actions. In this regard I believe it is imperative that the Club does what it can to assist the constitutional debate going on in the country and that it encourages its members to get involved in the elections which are only eighteen months away.

In saying this, my intention is not to chasten but to encourage you. However in using that word “chasten” I am reminded of one of my father’s favourite stories about the dour Presbyterian minister who used to deliver sermons that went something like this:

“There you sit you miserable sinners, you lust and fornicate, you chase after other men’s wives, you drink to excess and play sport on the Sabbath. But the day will come when you breath your last. Then you will shuffle off this mortal coil. Then you will go to the fires of Hades. Then you will burn in hell. And it is then that you will turn to your Maker and say: We didna ken, we didna ken. And it is then that the good Lord in His infinite mercy and compassion will say: “Ye ken noo”!

Perhaps many of us may say that we have the excuse that we could not anticipate what was going to happen in our country. Well we know now, “we ken noo”. The challenge is for us not to be drowned by our own pessimism. Whilst our government may be, to paraphrase Swift “in danger of dying by swallowing its own lies” now is the time for us to be positive and to act decisively. I believe that it was President Roosevelt who once said, in the context of the American economy and stock market:
“When blood is flowing in the streets, buy”
In the same way we need to seize the opportunity to bring about the fundamental changes needed in this country to secure a future for ourselves, our children and our children’s children.

After Dinner Speech to the Real Estate Institute of Zimbabwe

By David Coltart

6th June 1998

When Craig Friend phoned me this week to invite me to speak to you tonight I think he was somewhat foolhardy because not only did he allow me to speak on a topic of my choosing by also he gave that liberty to a lawyer. I think the Chair may have realised the error of Craig’s ways because a few minutes ago he turned to me and said: “Would you like to speak now – or shall we let them go on enjoying themselves a little longer?!”

Well, like it or not, you are now stuck with me. I suppose to cheer you up a bit I should tell the mandatory lawyers’ joke. I have recently been advised that rats have been replaced by lawyers as laboratory research animals in the USA and there are three reasons for this: Lawyers are more numerous; lab assistants get less attached to lawyers so if one dies no one cares; and there are some things even the highest paid rats won’t do.

In some ways it is not surprising that lawyers are likened to rats because often our work places lawyers in similar environments to rats: they are forced to delve into the dark and seedy side of life. In my years of practice I have often been made aware of some of the murky goings on in Zimbabwe. That was certainly so during the painful Gukurahundi/ Fifth Brigade years in Matabeleland. However, in the last few months I have, in my capacity as counsel for the CSC, come face to face with a most unacceptable side of life in Zimbabwe, namely rampant corruption and disregard for the rule of law.

It is in this regard that I would like to speak to you tonight as I believe that we all have a role to play if we want Zimbabwe to prosper and all of us share responsibility in securing a viable future for ourselves, our families, our businesses and indeed our clients in Zimbabwe. Estate Agents are no exception to the rule. Indeed, people come to you for advice as to future property developments, the success of which always depends on an accurate assessment of the future of the economy and the socio-political environment generally.

But to get back to Mr Boka’s Bank and my client the CSC. If you have been following the issue through the press you will have seen that as long ago as 22^nd April I and two senior executives of the CSC advised the Governor of the Reserve Bank that the UMB appeared to be guilty of defrauding the financial market of some $758 million (it has now gone up to some $968 million). In my opinion there has been blatant fraud perpetrated by so far unknown (to us) staffers within the UMB. In early March this year officials in UMB issued over $800 million of fraudulent bills – indeed in one day alone over $700 million of unauthorised bills were issued! And yet it took the Reserve Bank almost two weeks after our meeting to react in the way it should have done immediately, and only last week it appears as if the police have been called in.

The impression I have gained from all of this is that there has been an attempt to cover up the entire issue. Regrettably I cannot in this speech explain everything in detail but suffice it to say that in my mind at least the Reserve Bank in the early stages attempted to cover up. And how does the Reserve Bank explain the delays of the last six weeks? It seems to me that we are witnessing before our very eyes not only one of the biggest scams perpetrated against the Zimbabwean public but also a well-orchestrated attempt to cover up the fraud which appears to have been ordered by the very highest echelons of power: namely the office of the President. How else does one explain the President’s extremely lame attempts to exonerate Mr Boka in Cairo? No we hear that the investigators have had difficulty in establishing the UMB’s debtors listing and it is thought that numerous senior members of Government have received large loans on extremely favourable terms from Mr Boka. If this is so it would explain the cover up, Mugabe’s speech in Cairo and Government’s recent announcement that they were contemplating funding Mr Boka’s Golden Leaf Tobacco Co to purchase a lot of the crop. All no doubt designed to, if you will excuse the pun, “bale” out Mr Boka and save their own necks in the process.

You may well be asking – what does this have to do with the Real Estate Institute and what can we do about it in any event?

The relevance is this: the business fraternity, Estate Agents and Property Developers included, have been surprised by the events of the last six months including the crash of the Zim Dollar, the riots and now the serious threat to the financial sector. Is it not correct that this time last year the general business mood was, to put it mildly, far more upbeat that it is now? The business sector was genuinely shocked by the events of December and November last year and the banking sector has been well and truly caught with its collective pants down this year. And yet I believe that it was all so predictable.

In 1992 the Financial Gazette published a speech of mine in which I expressed the view that economic liberalisation would ultimately fail unless there was corresponding political liberalisation. The World Bank at the time was touting the so-called Asian Tiger economies of the East and even went so far as to argue that Structural Adjustment Programmes, because of their austerity, were more likely to succeed in authoritarian regimes because the rulers there would have the strength to force the policies through. The collapse of the Indonesian and Malaysian economies has clearly given lie to that notion. The Zimbabwean business sector fell into the same trap. It flirted with Government and as a result has been found wanting. The collapse of the Zimbabwean economy was well nigh inevitable because some of the fundamental obstacles to meaningful economic growth and economic stability had not been overcome.

It is in this context that I will make a paradox which is that for the first time in decades we have an opportunity to turn Zimbabwe from a faltering and increasingly irrelevant Third World banana republic into a winning nation. The reason for this is because for the first time we have all had to come face to face with the reality that we are lumbered with an increasingly corrupt regime which has itself been created by a seriously flawed Constitution and system of governance. Many of us in the human rights community have been warning about this for years but we have been largely ignored. The reason: business was in bed with Government and enjoying the good life. I regret to say that this was no more apparent than in Harare where the property boom and general development has contributed to the illusion that all was well. Harare’s marble and Mercedes Benzes have created the entirely false impression that the economy was doing well. But in many ways the proliferation of marble clad high rise office blocks have simply been symbols of our Government’s profligacy and the underlying corruption in society. The Reserve Bank building in particular is a monument to profligacy. The construction of so many of these buildings was simply not justified in terms of what was happening in the wider economy and Zimbabwe is now starting to pay the price. But now that the bubble has burst we can start dealing with the underlying problems.

I have neither the time nor the inclination to deal with all the problems tonight. In any event it would be highly inappropriate for me to spoil what has no doubt been an otherwise enjoyable and entertaining day for you wall. But if I am to end on a positive note I must deal with what I perceive to be some of the major lessons we all need to learn if we are to entertain any thoughts of creating conditions for long term economic stability and growth.

The first is, I concede, a fairly radical proposition. It is that we need to understand that the ZANU-PF Government and the President himself in particular is part of the problem and not part of the answer to our problems. The collapse of UMB and the President’s defence of Mr Boka in the face of the biggest fraud ever perpetrated in Zimbabwe is just one of a string of events which point to the fact that ZANU-PF and Mugabe are thoroughly corrupt. I was one who, when UZ was last closed in 1989, felt sorry for Mugabe. I thought that he had merely lost control over the corrupt people around him. Now I think very differently: I believe he had already become another typically corrupt despot. The VIP Housing scandal (involving his wife), the cell phone scandal (involving his nephew), the Hwange YTL scandal (involving him), the War Victims Comp scandal (the biggest beneficiary of which was his brother-in-law) and now the apparent attempt to cover up the Boka scandal all point to Mugabe. And if Mugabe is corrupt rest assured that the vast majority of Cabinet is equally so. History tells us that corrupt regimes do not reform themselves because it is impossible to undo the sins of the past in this regard. And once corrupt it becomes imperative to stay in power at all costs because that is the only way one can prevent one’s misdeeds from coming to light. What history also teaches us is that corruption ultimately bleeds a Nation to death and there can be no guaranteed long term economic stability until it is rooted out.

As I have said already, business has largely collaborated with Government – whilst it has whimpered about taxation and Government spending, it has generally flirted with Government. Until all sectors of society, including the business and professional sector, understand that ZANU-PF and Mugabe must go we will continue our slide into oblivion. Business must also recognise that we now have a window of opportunity to deal with these issues but that window is not open very wide and will not be kept open for much longer.

That leads me to my second proposition and that is that the greatest danger that we face in Zimbabwe today is not the prospect of a change of Government but the prospect of a change of Government which will have access to the same laws and powers which ultimately led ZANU-PF and Mugabe astray. It is vitally important that we all work towards a new Constitution as quickly as possible so that when the new Government comes to power (and it is a matter of when, not if) it will be restrained and made accountable and transparent in a way that ZANU-PF has never been.

Which leads me to my final proposition this evening. The Real Estate Institute has a major role to play in that process of Constitutional debate and reform and you should be involved if you are not already. Let me leave you with two examples of issues I believe you should be involved in:

Firstly, it is my view that the right to freehold title in communal areas should be part of Constitutional debate. For many years ZANU-PF has steadfastly refused to give title and the reason obvious: if you give title you give power to otherwise impoverished and vulnerable rural people. But the refusal to give title has not only disempowered rural people but has also dramatically slowed down the potential growth of the Zimbabwean economy. Estate Agents know this and speak to it with authority using their experience obtained in urban areas.

Secondly, compensation for any land or property compulsorily acquired should be determined by the Courts in their absolute discretion. Much has been written about this already but let me reiterate that it is an area of Constitutional debate that you should engage yourselves in.

Let me conclude by restating the paradox that whilst this may seem to be Zimbabweans’ gloomiest hour it could be the start of a glorious new era. Fortunately, as you all know, the infrastructure of Zimbabwe is pretty much intact. We have a highly educated and motivated workforce, we have some of the best natural resources in the world. If we all play a determined and positive role Zimbabwe could reach its true potential which is huge. Now, however, is the time to act and to act quickly and boldly.

Speech Given at a Public Forum Organized by the Christian Communicators Association of Zimbabwe: Bulawayo Rainbow Hotel

Introduction

I have been asked this evening to debate the Public Order and Security Bill with the Minister of Home Affairs, the Honourable Dumiso Dabengwa. He has asked that I speak first so that he is able to rebut my critique of the Public Order and Security Bill and I welcome this.

Before commencing my critique let me make a few preliminary points. The Minister and Government generally have recently been criticised by some quarters of introducing the second draft of the Bill in its present form. It is alleged that the second draft of the Bill strengthens Government controls (when compared to the first draft) and that Government has not taken into account the views of civic society expressed when the first draft of the Bill was discussed with human rights organisations. In light of this, let me say at the outset that the second draft of the Bill is an improvement of the first draft and that Government has taken into account some of the concerns raised by civic society.

Let me also say that the Minister and Government should be commended for including civic organisations in this discussion process. Government has not always done this in the past and it is a welcome development. Likewise I am grateful that the Minister has taken the time this evening to come and debate the Bill with all of us. This is what true democracy is all about. Zimbabwe is facing enormous problems at present and none of us have all the answers. I believe that constructive, transparent and forthright debate will provide many of the answers to our present woes and this process should be encouraged.

Finally in these preliminary remarks let me stress that no right thinking person would argue that we do not need any legislation whatsoever to regulate our constitutional rights to assemble, associate and express our views peacefully. My concern is that legislation should enhance our constitutional rights not frustrate them. In this regard it is interesting that the preamble to the memorandum to the Public Order and Security Bill stated that the Bill will “replace the draconian Law and Order (Maintenance) Act “. My principal concern is that whilst the Law and Order (Maintenance) Act was certainly draconian the present Bill is also draconian, albeit somewhat less so than the Law and Order (Maintenance) Act. Indeed in many ways the wording of the preamble is yet another Government smoke screen much in the same way Government statements that the new Communications Bill is designed to liberalise the airwaves (and in many respects does just the opposite) is a smoke screen . Why then do I state that the Bill is still draconian? I do not have the time this evening to go through the Bill in great detail and I will simply highlight my main points of concern. The points are not in order of importance as I will simply go through the Bill in order of the various clauses.

Critique

1. Clause 9 Harbouring, Concealing or Failing to Report Insurgents, Bandits or Saboteurs

Clause 9 (1) makes it an offence to harbour or conceal insurgents, bandits or saboteurs. Potentially it carries a sentence of 10 years imprisonment or a fine of $50 000-00 or both. Clause 9 (2) (3) makes it an offence not to report the presence of bandits etcetera to a Government official within 72 hours. A person failing to report faces a fine of up to $25,000.00 or imprisonment of 5 years or both.

I am sure that many of us are aware of the thousands of poor rural people during the liberation struggle and Gukurahundi who were caught between a rock and a hard place. Guerrillas or dissidents would come to their kraals seeking food and other support. If they reported the presence of the guerrillas or dissidents they knew that they faced the possibility of being killed by them. That was the rock. On the other hand if they did not report the presence of guerrillas or dissidents to security forces they could at worst be killed or at best face charges in terms of the equivalent provision in the old Law and order (Maintenance) Act. Hundreds if not thousands of poor rural people were imprisoned for failing to report the presence of guerrillas or dissidents. I always felt that the old provision was extremely harsh. Most people in rural areas do not have telephones, access to a good postal service and motor vehicles. They have to report the presence of insurgents or bandits in a very visible way. Once they have travelled a long way to the nearest police station they have to return to their villages with little protection. The fact that they have reported is usually easily established. In my experience most rural people detest violence and had, in the 1970’s and 1980’s, genuine fears for the lives of themselves and their families.

Accordingly I recommend that a specific defence be introduced to the Bill stating that if a person has reasonable fears for the life of himself or his family he will have an absolute defence to this charge. In stating this, I should mention that following the discussions of the first draft a sub clause to this effect was prepared by Government lawyers but has been omitted from the new Bill. I believe strongly that this defence must be introduced before the Bill is made into law.

Clause 11

Subversive Statements and Publications

Clause 11 makes it an offence for a person to initially make subversive statements or publications which promote public disorder, public violence, the bringing down unlawfully of a constitutionally elected government and so one. It carries with it a penalty of up to $25,000.00 or imprisonment of 5 years or both.

I. I cannot take exception to most of this clause. All democratic Zimbabweans are committed to non violent change and respect for the rule of law. However there is one phrase in the clause which gives rise to concern and that is “Public Disorder”. What does this phrase “Public Disorder” means? It is not defined in the interpretation clause (Clause 2). We must ask ourselves how it will be interpreted.

The ZCTU’s recent calls for peaceful stay-aways have led to public disorder. Notwithstanding what the Herald would have us believe the recent stay-aways were extremely successful in both Harare and Bulawayo and other centres, which virtually closed down totally for two days. The Railways did not work, factories were closed and the nation pretty much ground to a halt. Surely that amounts to “public disorder”. I believe that this phrase in Clause 11 could well be interpreted, in that manner and used to stifle peaceful protest. If it is interpreted and used in this manner the effect will be to make illegal what civil rights leader Martin Luther King advocated in the United States of America in the 1960’s. Martin Luther King once said:

“Mass civil disobedience as a new stage of struggle can transmute the deep rage of the ghetto into a constructive and creative force “.

It seems to me that the ZCTU’s calls for peaceful stay-aways are in line with Martin Luther King’s philosophy. We all saw the havoc wrought by the explosion of anger in January. The ZCTU was obviously acting responsibly in trying to transmute the deep rage of poor people in Zimbabwe into a positive force and it did so by calling for peaceful stay-aways. Government should not kid itself by thinking that it can simply put a lid on the anger that people feel at present. It must leave some avenue open for peaceful protest which may well result in disorder but which should nonetheless be lawful. If it does not, the pressure cooker of Zimbabwean politics will ultimately explode to the detriment of all of us.

In the circumstances I recommend that Clause 11 (A) should be amended by the deletion of the words “Public Disorder”.

Clause 13

Organiser to Notify Regulating Authority of intention to hold public gatherings

Clause 13 makes it obligatory for the organiser of any public gathering ( which is defined as a gathering for the purpose of demonstrating ) to give the local commanding officer of the police three days written notice of the holding of the gathering. On the face of it this clause seems reasonable. Its purpose is to enable the police to organise itself and to that extent it is a necessary provision.

However I still have two concerns regarding it. Firstly there is a sub clause which states that the commanding officer of the police may, in his discretion, permit shorter notice to be given. This is a welcome provision as long as it is done fairly. Our recent experience in Zimbabwe is that the police, certainly in its higher echelons, is politicised and does not always act impartially. It remains to be seen whether this proviso is used to benefit ZANU.PF alone. In making this statement, I am not suggesting that this aspect of the Act should be amended. I am simply warning that it must be used by the police in a fair manner to benefit all Zimbabweans. Secondly, I am concerned that whilst an obligation is placed on the organiser of a public gathering to give three days written notice of the holding of the gathering, there is no obligation placed on the commanding officer to give the organiser a receipt. As we will see later, in regard to the civil liability which arises out of the failure to provide written notice, an onus is cast on the eh organiser to prove that he did give three days written notice. I fear situations arising in terms of which organisers give written notice but as a result of either incompetence or malice the commanding officer of the police looses the written notice. The organiser bears the onus of proving that written notice has been provided and this may lead to injustice if he is unable to produce the document.

In the circumstances I recommend that Clause 13 be amended in such a way that it compels the commanding officer of the police to give the organiser of a public gathering an official receipt once written notice has been submitted.

Clause 14

Control of Public Gatherings

Clause 14 gives the police wide powers to control public gatherings. Once again on the face of it this appears to be reasonable and necessary. Nevertheless I still have one major concern regarding this clause.

The clause gives the police wide powers to control public gatherings but no obligation is placed on the police to facilitate a gathering. We have to bear in mind that we have the overriding constitutional rights to assemble, associate and express our views. During the past year in Zimbabwe we have seen the spectre of the police turning a blind eye to veteran demonstrations, the beating up of opposition politicians’ and the destruction of opposition politicians property. In contrast we have also seen the police in the past year frustrating people’s constitutional rights to demonstrate peacefully. In this regard mention should be made of the difference between the demonstrations held in Harare and Bulawayo on the 9th of December 1997. As we all know there was a radical difference between the two. In Harare the police prevented demonstrators from getting into the city centre as the President was about to deliver his State of the Nation address and did not want to be inconvenienced. Violence was used against the demonstrators and they responded in a violent fashion. In Bulawayo some 50 000 people marched to the City Hall in absolute peace and several of the leaders of the demonstration delivered speeches. The huge crowd then disassembled peacefully and by 2:00pm it seemed as if it was a Sunday afternoon.

The difference of course is that in Harare the police prevented (attempted to control) the demonstration whereas in Bulawayo the police facilitated the demonstration. In Bulawayo the police concentrated all their energies on diverting and directing traffic .They mingled with the crowd and monitored the situation. There was no violence and it provided a useful illustration of the fundamentally peaceful nature of Zimbabwean people and the role that the police should perform.

In the circumstances I recommend that Clause 14 should be amended in such a way as to make it obligatory for the police to facilitate demonstrations and to act in a reasonable and fair manner in doing so.

Clause 15

Prohibition of Public Gathering to avoid serious public disorder

In terms of Clause 15 (1) the local commanding officer of the police may apply to a local magistrate to prohibit a public gathering if he believes the gathering is likely to occasion “serious public disorder”. A magistrate may issue an order prohibiting the holding of a gathering and any person who fails to comply with such a direction is liable to a fine of up to $2 500,00 or imprisonment of six (6) months or both .

This provision results in a drastic invasion of our constitutional rights and it is simply not satisfactory for a junior magistrate who, especially in rural areas and small towns, is more likely to be susceptible to political pressure, to have the power to curtail these fundamental constitutional rights. In saying this I do not dispute the need for some provision. No doubt there will be occasions when people with evil intent will attempt to hold public gatherings with the intention of bringing about violence and destruction to property. However I see no justification for a magistrate to be given the power to terminate a constitutional right. Magistrates very really rarely deal with constitutional issues and they do not have the experience or training to deal with such issues in an adequate manner. On the other hand judges of the High Court of Zimbabwe do have such experience and training.

In the circumstances I recommend that power to curtail public gatherings should be given to judges of the High Court of Zimbabwe. In passing, if the minister retorts that one has the right of appeal to a High Court judge, let me say that that provision is both time consuming and expensive and will have the effect of negating our constitutional rights.

Clause 17

Civil Liability in certain circumstances of organiser of public gathering

Clause 17 (1) makes the organiser of a public gathering liable for any damage to property occasioned by public disorder or breach of the peace arising out of the gathering if he has failed to give notice or has failed to comply with an order or direction given by a police officer or if he has incited persons that are gathering to engage in public disorder or a breach of the peace. Clause 17 (3) casts an onus on the organiser to prove that he gave notice to the police and that he complied to the best of his ability with any direction or order given by a police officer.

In my view this clause is possibly the most draconian aspect of the Bill. Not even the Rhodesian Front thought of such a measure! In saying that it is draconian let me stress that I do not argue with a provision which punishes organisers of gatherings for not giving notice. As I have said before that is a reasonable requirement but nonetheless I have great reservations about the ramifications of this clause.

Firstly Clause 17(3) states that the organiser has the onus of proving that he gave notice. As I have stated before what happens if the police losses or denies receipt of the notice? What happens if the police act in a biased manner and deliberately destroy the notice? The onus cast on organisers makes it absolutely vital that Clause 13 be amended to compel the police to provide an official receipt.

Secondly I foresee that situations could arise which would lead to most unjust application of this law. Ponder this. An organiser gives written notice that he intends conducting a demonstration down First Street. The police initially advise that that is in order. The demonstration goes ahead and some 50 000 people assemble to march down First Street. However moments before the commencement of demonstration a police officer by oral announcement ( as the police are entitled to do in terms of Clause 14 (4)(C)) gives a direction telling the organiser that they can on longer go down First Street but must go down Second Street. The organiser then frantically tries to divert the 50 000 people down Second Street but fails. The police prevent the demonstrators from coming down First Street and violence erupts. The organiser now bears the responsibility of proving that he complied to the best of his ability with a direction. This is an unreasonable onus to bear. I believe that this could lead to unjust results.

Furthermore we need to study the events of the last few months and indeed the demonstrations which occurred in November 1995,(ostensibly organised by Zimrights). There is no doubt in my mind that much of the violence that flared up this year and in 1995 was as a result of agent provocateurs. In the light of what has happened in Zimbabwe the casting of the onus on organisers of demonstrations in this manner is unreasonable. I believe that the common law is more than sufficient to protect innocent people who suffer loss as a result of unlawful demonstrations. The Clause in its present form will have the effect of deterring people from organising demonstrations. Indeed I believe that the intention of this clause is to deter people from organising demonstrations.

Conclusion

For the reasons I have outlined above, and for other reasons (which time constraints have prevented me from elaborating on), the Public Order and Security Bill remains draconian and unacceptable. Government needs to understand that it will not resolve the anger felt by the people of Zimbabwe today by trying to control them. I believe that this Bill should properly be called the “Public Control and State and Security Bill” alternatively the “Pressure Cooker Bill”. It appears that government believes that as long as it builds strong enough legislation it will be able to control people and their thoughts.

It is in this regard that another quote from Martin Luther King is apposite:

” The great masses of people are determined to end their exploitation. They are awake and moving towards their goal like a tidal wave. You can hear them rumbling in every village, street, in the houses, among the students, in the churches and at political meetings. These developments should not surprise any student of history. Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself. The Bible tells us the thrilling story of how Moses stood in Pharaoh’s court centuries ago and cried “Let my people go” “.

The same is happening in Zimbabwe to day. People are talking in every town, street and house. People are discussing in beer halls and there is a tidal wave of discontent. The process of change is inevitable. If government wants to prevent disorder whilst going through this transitional period it must tackle the fundamental complaints of the people, namely corruption, abuse of power and economic mismanagement, not imposed draconian laws on the people which ultimately will not stop the process of change in any event.

Objections to the 14th Amendment to the Zimbabwe Constitution

By David Coltart

5th August 1996

Rotary Club South

Introduction

Mr Winston Churchill, speaking in the House of Commons in 1910, spoke the following words:

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm, dispassionate recognition of the rights of the accused, constant heat-searching and a desire and eagerness to rehabilitate are the symbols, which in the treatment of crime and the criminal, mark and measure the stored up strength of a nation, and are a sign and proof of the living virtue in it.”

Those wise words spoken so long ago deal with the rights of criminals and link between respect for those rights and civilisation. Today I come to speak to you about the rights of Zimbabweans and the words of Winston Churchill ring even truer in that regard. There is without doubt a correlation between respect for the rights of a country’s citizens and the degree of civilisation. The Government which respects the rights of its citizens can justly claim to be democratic and civilised. A Government which show scant regard for the rights of citizens can be justly termed undemocratic and uncivilised.

I have been asked today to come and speak to you about an amendment to our Constitution brought by the ZANU (PF) Government which will have the effect of withdrawing rights if passed into law. The 14^th Amendment to our Constitution seeks to amend the Declaration of Rights contained in our Constitution. It needs to be said at the outset that not one of the 13 amendments to our Constitution passed already have had the effect of enhancing rights. Every one of them has had the effect of detracting from the rights of citizens and entrenching ZANU (PF)’s hold on the reins of power. The Constitution has been butchered to such an extent that we now have one of the most outdated and restricted Declaration of Rights in Africa and this process continues with the proposed 14^th Amendment.

The History behind the 14^th Amendment

The proposed 14^th Amendment can be traced back to 1^stJune 1992. On that day the Zimbabwe Congress of Trade Unions asked for permission to hold a public demonstration in Harare. Permission was refused by the police and notwithstanding that refusal the ZCTU went ahead with the demonstration on 13^th June 1992. Members of the ZTCU were arrested and subsequently charged with contravening Section 6 of the Notorious Law and Order Maintenance Act for holding a procession without permission. The trade union movement challenged the criminal prosecution in the Supreme Court arguing that Section 6 of the Law and Order Maintenance Act was ultra vires Section 20 and Section 21 of the Declaration of Rights which enshrines freedom of expression, assembly and of association respectively.

On 13^th July 1994 the Supreme Court ruled in their favour in the case re Manhemeso and others 1994 (1) ZLR 49 (S). In the course of the judgement the Supreme Court ruled that Section 11 of the Constitution was more than just a preamble. The Court ruled that it had substantive rights. At page 61 of the judgement the Chief Justice Gubbay said:

“The purpose of Section 11 – key or umbrella provision in the Declaration of Rights – is to strike necessary accommodation between the enjoyment of freedom and potential prejudice resulting from the exercise both to others and to the public interest”.

The ruling of the Supreme Court was significant in that it established that some of the rights spoken about in Section 11 were enforceable. For example the only place in the Declaration where the right of privacy is mentioned is in Section 11(c). Had Section 11 been declared to be simply a preamble then it could not have been argued that Zimbabweans had the right to privacy. The relevance of this section will become apparent later on in my talk.

The second major event leading to the proposed amendment occurred in 1994. For several years Government through the Department of Immigration had employed a discriminatory practice in terms of which female citizens were not entitled to have their non-citizen husbands reside in the country with them. Male citizens, on the other hand, were entitled to have their wives reside with them. In May 1994 the Bulawayo Legal Projects Centre challenged this policy and argued in the Supreme Court that a wife’s freedom of movement, enshrined in Section 22 of the Constitution, was infringed by Government’s policy. The argument was fairly straightforward. Women have the right to marry and the right to family life. If women are not entitled to reside with their husbands in Zimbabwe they are faced with the dilemma of either having to live apart or to live outside Zimbabwe. If wives are forced to live outside of Zimbabwe their freedom of movement is infringed.

The Supreme Court agreed with us and ruled that wives have the right to have their foreign husbands reside in Zimbabwe with them. In the judgement the Supreme Court once again stated that Section 11, the preamble provision I mentioned earlier, was the “key and umbrella” provision from which all other rights must be subsumed.

The Bulawayo Legal Projects Centre case, which we shall call the Rattigan versus Chief Immigration Officer 1994 (2) ZLR 54 (S) was followed by a further case at the end of 1994. In the case of Salem v Chief Immigration Officer 1994 (2) ZLR 287 the Supreme Court took the rights enunciated in Rattigan V Chief Immigration Officer a step further. It ruled that the right to reside in any part of Zimbabwe without the right to have one’s husband engaged in gainful employment was unduly restrictive on the wife bearing in mind that husbands are usually the main breadwinners in any family. Accordingly the right of foreign husbands to work in Zimbabwe was enshrined in this case.

After the Bulawayo Legal Projects Centre won the Rattigan case in 1994 the Department of Immigration was faced with a flood of applications brought by Zimbabwean females to have their non-citizen husbands reside in the country with them. The Department of Immigration adopted a contemptuous attitude to the judgement resulting in a number of High Court applications being brought against them. In some instances they refused to grant permanent residence permits and in 1995 the Bulawayo Legal Projects Centre commenced a further application in the High Court against Immigration Department officials to have them held in contempt of the Supreme Court. The Immigration Officials at the eleventh hour relented and permanent residence permits were granted.

The 14^th Amendment

It is in this context that Government has now brought the 14^th Amendment in the Constitution. In essence the 14^th Amendment will take away:

1. The right to be a citizen by birth if at least one of the child’s parents is not a citizen;
2. The right of privacy enshrined in Section 11 of the Constitution and;
3. The right to have one’s non-citizen/foreign wife or husband live in Zimbabwe if she or he is not a Zimbabwean.

The effect of the 14^th Amendment is to reverse the Supreme Court decision in Rattigan v the Chief Immigration Officer and to further detract from the rights of citizens. I shall deal with these three major changes individually.

The right to be a citizen by birth

At present children born of parents who are ordinarily resident in Zimbabwe are entitled to obtain Zimbabwean citizenship. The proposed Amendment will restrict citizenship by birth to children both or either of whose parents are citizens of Zimbabwe. The proposed amendment runs directly contrary to the assurance given by Government when it passed the Citizenship of Zimbabwe Act Chapter 4:01 1984. This was the Act that prohibited dual citizenship. At the time the Act was promulgated, citizens were given the assurance that the only right that would dramatically affect residents who did not keep their Zimbabwean citizenship would be the right to vote. Section 9(8) (e) states that citizens shall be entitled to do all such things as may be done by persons who are ordinarily resident in Zimbabwe. The proposed Amendment constitutes a dramatic change in this position and runs contrary to accepted international forms. It potentially will result in children of residents of Zimbabwe becoming stateless.

The right to privacy

The 14^th Amendment will re-enact Section 11 of the Constitution preamble. In other words it seeks to make clear that Section 11 of the Constitution does not have any substantive rights. Whilst most of the rights dealt with in Section 11 are covered by other sections contained in the Declaration of Rights as stated above, the right to privacy is not specifically stated anywhere else in the Declaration of Rights. Accordingly, Government is abolishing the right to privacy and one is no longer protected against the details of one’s private life being published, one’s telephone being tapped and other rights enjoyed by citizens elsewhere in the world. Government has come up with some disingenuous arguments that the right to privacy is contained in other sections of the Constitution, but the fact remains that the phrase “right to privacy” is not found anywhere else in the Declaration of Rights.

The right to have foreign spouses

As stated above, the 14^th Amendment removes women’s right to have their foreign husbands in the country. It goes further to remove the right that Zimbabwean males used to have and in theory at least a gender neutral approach will be adopted. The memorandum attached to the Bill of Rights states that “in future such foreigners will be subjected to ordinary immigration selection procedures”. The “ordinary immigration procedures” in the past have been dominated by racist, discriminatory, xenophobic and corrupt considerations. The procedures are not stated anywhere and are entirely within the discretion of the Minister of Home Affairs and functionaries within the Immigration Department.

What Motivates Government

Government has been unable to advance coherent reasons for the Amendment. At one meeting held with human rights organisations earlier on this year, immigration officials stated that the amendments were necessary to ensure that racist and criminal elements were kept out of Zimbabwe. I believe that Government is being dishonest and that the reasons for the proposed amendments are as follows:

1. Xenophobia

It is a well known fact that many males who are in the ZANU (PF) hierarchy are fiercely conservative and dislike the notion of Zimbabwean women marrying foreigners. I have no doubt that these amendments are primarily designed to ensure that the discriminatory practice employed before the Rattigan judgement will be employed again. I doubt very much whether wives of Zimbabwean male citizens will be refused permission to reside in the country. I have no doubt that this amendment will be used to frustrate Zimbabwean women from having their foreign husbands reside in the country. Although the proposed changes are gender neutral, given Government’s past performance the policy of Government will in future be sexist and discriminatory. If Government wants to deter criminal elements it can use the criminal laws. They would obviously not be bone fide marriages.

2.   Corruption

The greater amount of discretion given to any department, the greater the prospects for corruption. I am aware that the Department of Immigration is riddled with corrupt officials who have used their wide discretionary powers to extract bribes from people wishing to obtain residence permits. I am aware of two cases where substantial bribes have been paid to ensure that residents’ permits are granted. The ability to extract such bribes was withdrawn as a result of the Rattigan judgement and I have no doubt that if the 14^th Amendment goes through a big enough bribe will ensure that one’s foreign spouse will be able to reside in the country.

3.   Racism

Whilst the Rattigan judgement has benefitted many black women in the country there is no doubt that non-black women benefited disproportionately from the ruling. From my experience of practicing law over the last few years I am left in no doubt that the Department of Immigration frequently racially discriminates against prospective applicants. If you are a black Zimbabwean wishing to return to the country then permits are invariably granted. However, if you are a white, great difficulty is usually encountered in obtaining permission to return. If the discretionary powers of the Department of Immigration are widened as envisaged by the 14^th Amendment I have no doubt that these racist policies will be perpetuated and indeed expanded upon.

4.   Undermining of the Supreme Court

For a number of years I have held the view that the ZANU (PF) Government has done everything in its power to undermine the independence of the judiciary. In the past few years it has reversed Supreme Court decisions on a number of occasions and I am of the view that those amendments have often been motivated by the desire to undermine the respect with which Zimbabweans hold the Supreme Court. The amendments also have the effect of diminishing the respect we have for the Declaration of Rights itself. The Declaration of Rights is meant to embody the fundamental rights of Zimbabweans and should not be amended willy-nilly. When the Supreme Court interprets the Declaration of Rights Government should respect that interpretation.

The Need for a New Constitution

The proposed 14^th Amendment to the Constitution underlines once again the need to hold a Constitutional Conference in Zimbabwe so that the citizens of Zimbabwe, male and female, can decide on what should be contained in our Declaration of Rights. At present our Constitution is being butchered by a small clique of ZANU (PF) males who have shown no respect for human rights in the last 16 years and who show little intention of respecting human rights in the future. A meeting was held with the Minister of Justice and the Attorney General last Monday at which many of the abovementioned concerns were expressed. Government through the Minister of Justice and the Attorney General has indicated that it is determined to push ahead with the 14^th Amendment and no doubt it will become law within the next few weeks. There is precious little we can do to prevent that.

The only thing we can do is to lobby respective Members of Parliament in the hope that they will vote against the proposed amendment. Accordingly, I encourage you all to write letters to your local Member of Parliament and to encourage him or her to vote against this draconian amendment.