INSTITUTE OF CHARTERED SECRETARIES AND ADMINISTRATORS:- MANICA HOTEL, MUTARE

I have been asked to speak to you today about recent developments in the legal field. I suppose that normally Chartered Secretaries would expect to be addressed on developments in law which directly affect the business sector, such as the recently enacted Private Corporations Act or the proposed changes to the Law of Insurance. However when your Chief Executive invited me to speak to you, she gave an extremely wide mandate and I propose to exploit that to the full. I am further fortified in doing this by the theme of this seminar: “Update on Current Affairs” and by the proposed title of my talk being “Recent Developments in the Legal Field” as opposed to “Developments in Zimbabwean Law”. I do not propose to delve into the minutiae of various legislative changes which have occurred in the past year or so. I would like to discuss what I believe to be a much more profound development in Zimbabwe which could affect every aspect of our lives and certainly our prospects of enjoying meaningful economic development.

In last Thursday’s Financial Gazette (27 May 1994) the editorial concluded with the following sentence: “Economic reform must be accompanied by far reaching political reform to cultivate a stable, open and accountable democratic process”. When I addressed a similar conference in May 1991, I said: “ESAP will stand or fall on the degree of genuine democracy brought to Zimbabwe”. I also said: “any undermining of the judiciary will inevitably affect not only the internal economy but also the confidence of foreign investors”. I thought then that the Government had seriously undermined the judiciary and respect for our Declaration of Rights by virtue of Act 30 of 1990 which, amongst other things, amended section 15 of the Constitution. At the time I argued that the amendment was not just an issue of reintroducing corporal punishment for juveniles (reversing the Supreme Court’s decision in A Juvenile 1989 (2) ZLR 61) but that it displayed a more serious ulterior motive. That motive was to undermine the Supreme Court and to emasculate the Declaration of Rights. I further argued that this action could adversely affect the success or otherwise of the Structural Adjustment Programme.

I have not changed my views in any way and am heartened to see the Financial Gazette saying the same thing. The business community in Zimbabwe has in many instances been naive in thinking that economic reform is unrelated to respect for the Supreme Court and the Declaration of Rights. Many in the business community cannot see the link between pronouncements on whipping, hanging and demonstrations on the one hand and the success of economic reforms on the other. And yet the two are inextricably intertwined. It is logical that prospective investors will look for a stable political and judicial environment. An essential element of stability is certainty. Any prospective investor wants to know that, if he reaches an agreement with Government or a local company, that agreement will be honoured. He can only have confidence that agreements will be honoured if fundamental laws are not changed frequently and if there is a completely independent judiciary to adjudicate over any dispute arising out of any investment agreement. All rights and obligations in this country ultimately flow from the Constitution and accordingly the Constitution is pivotal as far as the interests of the prospective investor are concerned. Likewise, the Supreme Court is the final arbiter on any dispute and it is vital that its decisions be honoured in the letter and the spirit by all, especially the Government.

In 1991 I feared that Government did not recognise the link I have referred to now. In other words, I feared that Government felt that the Constitution was just another body of law without any particular significance, one which could be changed at its whim. Likewise, I was concerned by the seemingly illogical reversal of Supreme Court decisions. I do not propose to explain why the amendments, were illogical. Suffice it to say, however, that most of the amendments to the Constitution appear to be motivated by a desire to put the Supreme Court in its place.

Today I would like to analyse Government’s actions vis a vis the Supreme Court and Constitution since May 1991. It appears as if Government is almost more determined than ever to undermine the Supreme Court and to minimise the importance of the Constitution and the Declaration of Rights. Since May 1991 the 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 an inhuman punishment in violation of section 15 (1) of the Constitution. It is pertinent to note that this decision was approved by the Privy Council in ——- v ——– Shortly after the ruling, Act 9 of 1993 was passed, amending section 15 again and reversing the Supreme Court’s decision. Indeed, section 15 (1), which reads
“no person shall be subjected to torture or to inhuman 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 3 years. To give you some idea 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 the Governments’ 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 9 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’s rights” 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 (see State v Kanengoni & Another – S—– 94). The pardons have attracted a lot of publicity (see Legal Forum March 1994 pp 3 – 10) 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 a manipulation of our Constitution. It also needs to be said that the pardons were but one of a 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 the 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 that 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 that 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.

I believe that all Zimbabweans, especially businessmen, and those intending to invest in the country, need to realise that they are not immune from the effects of these governmental actions. Like it or not these, actions impact upon the investment climate of the country. It is necessary for us to consider the consequential effects. I would suggest that there have been the following ramifications:

1. The Executive has created a constitutional crisis in Zimbabwe. I do not believe that I am overstating the point when I say that it is fortunate for the nation that our Supreme Court bench has not resigned en masse. The actions of Government in reversing carefully considered judgments of the Supreme Court, interpreting fundamental human rights provisions, pardons for no obvious reasons of criminals whose appeals have just been dismissed by the Supreme Court and holding judgments of the Courts in utter contempt, as has happened in the Churu Farm matter, are serious slaps in the collective face of the Judiciary. All, these actions speak of a Government which does not respect the Judiciary. The Judiciary is under attack by the Executive, directly and indirectly. Through these actions, the Judiciary has been seriously undermined and weakened. We must not forget that the doctrine of separation of powers is the foundation of any democratic state. The doctrine is designed to balance power amongst the Judiciary, Legislature and Executive. The Legislature is there to make the law, the Executive is there to put it into practice and the Judiciary is there to interpret the law. The moment one of the arms of Government is weakened a very serious situation arises in any country. From a business perspective, it means that we can no longer have certainty that our business affairs will be determined fairly and fearlessly.

To give you an example of the danger which faces businesses, I need only refer to a recent defamation case I handled a case on behalf of the Deputy Sheriff, Kwekwe, against a local businessman. This businessman alleged that the Deputy Sheriff, in attaching his property in execution of a judgment debt, had acted as a racist. Reports were made to political heavyweights who fortunately declined to act on behalf of the businessman. The courts backed the Deputy Sheriff to the hilt and granted him defamation damages. As a result the Deputy Sheriff still feels strong enough to execute judgment debts, which of course are all grist to the mill of business. The moment Deputy Sheriffs are not prepared to execute on judgment debts is the moment the business sector is seriously jeopardised. Deputy Sheriffs will only continue to operate as long as they are backed by a fiercely independent, strong Judiciary.

We are fortunate still to have men and women of integrity and boldness on the bench. The danger is that Government will overstep the mark and that these great judges will either resign, to be replaced with sycophants, or lose heart. If that happens, much of the certainty that we have taken for granted in our justice system will go. We must not forget that our judiciary has been held up as one of the best in Africa, if not the world, and that no doubt is most attractive to any prospective investors. Take that element of the business environment away and prospective investors may think twice about coming here.

2. The entire legal system has been undermined. The moment it appears as if there is one law for one person and another law for another set of persons, two things happen.
Firstly, local Zimbabweans tend to lose some, if not all, respect for the laws of the country and the legal system. Once the perception that some people are above the law gains a foothold in the psyche of the citizenry, unlawful activity and corruption begin to flourish even more than they have in the past. I have no doubt that members of the CIO and rank and file members of ZANU (PF) believe that they can literally get away with murder as far as acts of political violence are concerned. If they can get away with acts of murder, they will think they will be able more readily to get away with acts of corruption, fraud and theft? Corruption is rampant in this country and is bleeding the economy to death. I have no doubt that millions of dollars of state funds have been siphoned out of State coffers by, people powerful enough to be immune from investigation and prosecution. How much more immune those people will feel now!

Secondly, we must not minimise the effect that this perception, that some people are above the law, will have on potential foreign investors. It will have a two-fold effect: it will scare off genuine investors of integrity and competence, who will fear that their business interests will be jeopardised unless they are prepared to pay bribes; conversely, it will attract devious businessmen, who can only compete by paying bribes. The Third World is bedevilled by incompetent contractors who build substandard structures, having gained contracts only by bribing a suitably powerful politician. We cannot afford to have this happen in Zimbabwe.

3. The Declaration of Rights has been seriously undermined by Government. As I have stated above, almost every time the Supreme Court has sought to expand the rights of Zimbabweans in interpreting the Declaration of Rights it seems as if Government has sought to retract those rights. There has not been an amendment which increases personal rights. It is important to remind ourselves that our Declaration of Rights reflects the fundamental human rights contained in the international agreements such as the Universal Declaration of Human Rights and the African Charter. These, fundamental rights are not similar to any other legislation. No one questions the right of Government to amend laws. Most laws should be flexible and governments must change laws to address the changing circumstances in any country. However, the rights contained in our Declaration of Rights constitute the core of rights which allow any given society to operate in a peaceful and civilised fashion. Government has treated the Declaration of Rights as if it is nothing special, as if it is similar to any other piece of legislation, as something subjective, malleable and not part of natural law. The dangerous flaw in our Constitution is that whilst our Supreme Court can interpret personal rights, Government can reverse the court’s decisions and change the Constitution at the drop of a hat.

In this regard, our Constitution stands in marked contrasts to two of Africa’s newest Constitutions. For example, the Ghanaian Constitution, which came into force on 7 January 1993, entrenches fundamental human rights. section 2 (4) of that Constitution states that any enactment of Government inconsistent with the Constitution can be declared unlawful and that the failure to carry out any Supreme Court ruling in terms of Section 2 (4) shall constitute a ground for the removal from office of the President. Section 290 of the Constitution entrenches the fundamental rights contained in the Constitution. They can only be changed if the proposed changes are submitted to a referendum in which 40% of those entitled to vote do vote and 75% of those who vote, approve of the changes. To give another example closer to home, Article 25 of the Namibian Constitution states that no-one can amend the fundamental rights contained in the Constitution, other than to increase them; they are entrenched forever.

Sadly, our Constitution was flawed from the very beginning. One of my principal criticisms of the Lancaster House proceedings is that far too much attention was paid in securing what I would term “white rights”. Little was done to ensure that universally accepted fundamental rights were entrenched. As a result, our Constitution was flawed from the beginning and Government’s scant regard for it has exacerbated the problem.

Government is quite right when it says that it is acting constitutionally in amending the Constitution. They are acting within the terms of the Constitution but in effect they are continually making the rules of the game as they go along. They are not abiding by fundamental internationally accepted human rights and norms. To give an extreme example, Government can, in terms of the Constitution, act constitutionally to amend the Constitution to bring about a one party state or to acquire compulsorily urban business property. All it needs to do is to get a sufficient majority in parliament and they will be acting entirely “constitutionally”. It is an excuse to claim that they are acting constitutionally. Many appalling things have been done by governments acting constitutionally. For example, Hitler came to power and exercised power constitutionally.

The business community is by its very nature conservative and traditionally not interested in “human rights”. As long as the economy is being liberalised the business community is generally happy. Certainly this is the case in Zimbabwe at present where the business community has shown little disquiet over most of the acts of Government I have described. For example the Confederation of Zimbabwe Industries, business houses and the like have been deafeningly silent in not condemning the assault on the Judiciary and the Declaration of Rights. What the business community has failed to recognise is that life in Zimbabwe, including business life and its survival, is at present ultimately not determined by universally accepted standards of conduct but by what is convenient to Government. The playing field for all of us is not laid out in terms of entrenched rights in the Constitution giving us certainty, but by the mere whim of Government. The business community must wake up to the fact that whilst today we may be dealing with reversing Supreme Court decisions relating to the death penalty, tomorrow we may be dealing with the reversal of a Supreme Court decision outlawing the compulsory acquisition of urban factories. Section 16 of the Declaration of Rights, which deals with compulsory acquisition can be changed just as easily as section 15 has been changed in the past. And as long as this situation prevails there can be no absolute certainty in business practice in Zimbabwe. These recent developments in the legal field must mean that we remain a relatively unattractive investment option.

I have painted a fairly gloomy picture but it does not have to be. Our most urgent need in Zimbabwe at present is to campaign for the enactment of a new Constitution. Why Zimbabweans should be left behind when countries we are closest to both geographically and spiritually, such as Namibia, South Africa and Ghana, are enacting constitutions which quite frankly are light years ahead of ours? Our Constitution is outdated; it was cobbled together to bring a war to an end. The situation in the country and in the region has changed dramatically. The Cold War has ended and the world is a different place. We need a new constitution which:

(a) entrenches certain fundamental rights, agreed upon by the citizens of Zimbabwe, which cannot be changed at the mere whim of the Government in power at the time;

(b) empowers and effectively confirms the independence of the Judiciary, so that once there has been a ruling on a case involving fundamental human rights that decision cannot be changed or interfered with in any way;

(c) introduces severe penalties for anyone, including the President, who shows contempt for the Courts or attempts to ignore or subvert constitutional provisions.

Only when we get a constitution which includes these non-negotiable provisions can the business community and potential investors have absolute confidence that they are investing in a country with a level playing field. The challenge is yours. The Judiciary, Human Rights groups, the Law Society of Zimbabwe, trade unions and students have done their bit in trying to protect the Constitution. Now is the time for the business community, for people like Chartered Secretaries, to recognise the role that they can play. We have a very good example of what can be achieved. When the business community in South Africa finally realised that apartheid was going to jeopardise their long term business interests they acted very strongly to bring the South African Government to its senses. And now in Zimbabwe it is imperative that the business community uses its considerable muscle to impress on Government that there can be no meaningful economic progress in the long term without far reaching legislative changes which cultivate, in the words of the Financial Gazette, “a stable, open and accountable democratic process”.

Forum Party of Zimbabwe Meeting

20^th April, 1994

Kumalo

It is good to see so many faces I recognise well and I see that some of you were at the meeting last time I was here in October last year. Colonel Dube and I have swopped roles. Those of you who were at the last meeting will recall that I introduced him then and he was the main speaker. For those of you who weren’t at the meeting let me say that Colonel Dube was a high ranking member of Zipra, who has had a distinguished career in the Zimbabwe National Army and is doing wonderful work in the Forum Party of Zimbabwe. It is a great privilege for me to be at this table with him this evening. I last addressed some of you, as I say, in October last year. Six months have gone by since then. Those of you who were here will recall that in my introductory remarks last year I spoke about corruption in Government, the need for accountability in Zimbabwe and the lack of accountability plaguing this nation. What I would like to do initially this evening is to review the last six months since October 1993 with specific reference to those topics of corruption and the lack of accountability. I want to raise four incidents which have occurred since then to illustrate my concerns.

The first is that of Churu Farm. You may recall that at the end of October and the beginning of November last year Government moved into Churu Farm with Police and helicopters. They sealed the farm off, started threatening the inhabitants of Churu Farm and told them to get off. The inhabitants obtained an order through the High Court of Zimbabwe preventing Government from evicting them. In defiance of that High Court order, in contempt of that order, Government continued to act unlawfully. It put landless and homeless people out on the street. Many of those people are now destitute. If you go to Harare along Amalinda Road you will see that a squatter camp has sprouted. There is disease and there are major social problems. You may have read about the so-called squatter camp organised by Government, where some of these people have been moved. Even the Herald, the Government’s mouthpiece, is saying their conditions are worse than they were at Churu. We need to recall that this is the first time that the Government acted in terms of the Land Acquisition Act; the Act is designed, if we are made to believe what they say in Parliament, to provide land for the landless. But it was used for the first time to get poor people off land and it was used to settle a personal feud between Ndabaningi Sithole and President Mugabe.

The second incident was the pardoning of the two men who were convicted of attempting to murder Patrick Kombayi, who is the National Organising Secretary of the Forum Party of Zimbabwe. Much has been said in the press about that pardoning. Very little has been done to put that pardoning in its proper context. We need to cast our minds back to March 1990 when the last general elections were held. On the Sunday before the elections commenced, the Sunday when Patrick Kombayi was shot in Gweru, I watched the evening news on ZBC. ZANU-PF placed two campaign advertisements, one just before the 8 o’clock news and one at the end. The one before the 8 o’clock news had a film of a coffin being taken out of a church and had the inscription “AIDS kills, so does ZUM!” (which was Patrick Kombayi’s party), “ Vote ZANU-PF and live”. After the news they had a film of a car coming over a hill, down a road and smashing into another car with the inscription, “This is one way to die, another is by voting ZUM – Vote ZANU-PF and live!” And of course in the body of the news bulletin they mentioned that Patrick Kombayi had “initiated” a fire fight and had been wounded in the process. We then come to January 1994 when the Supreme Court considers all the evidence and the Supreme Court says: “no”, it wasn’t Patrick Kombayi who initiated this. This was an act done by the head of the CIO in Gweru and the head of the ZANU-PF Youth League in Gweru and they intentionally attempted to murder an opposition political leader. The ink was hardly dry on the judgement when the President of this country comes full circle and pardons them. By saying full circle, what I mean is that ZANU-PF were responsible for those advertisements in March 1990 which foretold the fate of people who oppose ZANU-PF. The pardoning of those two men confirms the complicity of ZANU-PF in those crimes and the complicity of the President himself.

The third incident concerns the salary increases which were granted by Government to itself around about the same times as the Kombayi pardoning. You may recall in July last year civil servants were told, “You have got to tighten your belts,” and because of that some of you are only going to get a 2% pay increase. Low and behold, come January this year the President, the Cabinet Minister and everyone else award themselves salary increases, some as much as 64%. Most of us would be embarrassed.

The fourth incident concerns the recent land scandal exposed by the Daily Gazette. It is important to trace how this scandal has been exposed. When it first came out the Minister of Lands, Mr Kangai, denied it. He said that these reports were false. Of course, that lie was ultimately exposed and it was absolutely shocking that when the lie was exposed we found that people like Perence Shiri, responsible directly for thousands of deaths in Matabeleland in 1983, was rewarded by being given a farm. The Minister who was responsible for pushing the Land Acquisition Act through Parliament and in doing so – whilst saying that the Act was designed to give land to landless people – took one of the designated farms for himself. Doctor Utete, the President’s personal secretary, was also given a farm. We are now told that the President did not know about this! He has called for an enquiry. He is cancelling the leases. With the utmost respect for President Mugabe, I don’t believe him! How can a President whose private secretary has got a farm not know about it? I knew about Perence Shiri getting a farm in November last year.

We have gentlemen from the CIO present this evening. Welcome to you. I mean that. These gentlemen attend meetings like this. They report directly to the President. They are in the President’s office. I know of another incident which has not been exposed yet where a local MP in Matabeleland has taken over an ARDA farm that is a parastatal. He has taken it over. The CIO, to give credit to them, actually tired to move him off but he is back on the farm. Now the CIO know about most cases of corruption. Rest assured they knew about P Shiri. Rest assured they knew about Dr Utete. If they are doing their job as I am sure they are doing, they report back to the President. If he reads their report he must have known about these matters. What I have to say about the President’s Commission of Enquiry is that the enquiry should be public; it should be chaired by an independent judge and whatever happens the Minister responsible, Mr Kangai, who lied, who tried to cover up, should resign! Minister Mangwende, the Minister who benefited from this scheme should resign! P Shiri, the Commander of the Air Force, should resign! That is the least that we can expect in a democratic society. That is what happened after Willowvale: Governor Mudena, whose crime was far less serious than these, Enos Nkala and Callistus Ndlovu all resigned.

Now, I have mentioned these four incidents – Churu Farm, the pardoning, the salary increases and the land scandal – for a specific reason. All of them show that Government, ZANU-PF, has become excessively arrogant. It believes it can do anything. These men are either stupid and power has gone completely to their heads, or they are supremely confident that they can do anything, literally anything – murder, steal, or give themselves benefits – and get away with it. It also teaches us, if we haven’t learnt this lesson before, that ZANU-PF is putting its interests before the interests of the country and there are dangerous ramifications as a result.

I have spoken on this topic many, many times before. May I say, firstly, that corruption is bleeding this country to death and when a Government is so arrogant that it thinks that it can get away with corruption, a country is going one way. No country can afford money to be used in non-productive ways like that, because ultimately the entire economy will flounder. Secondly, the Structural Adjustment Programme, which is a much watered-down form of what it should be, will fail if Government doesn’t cut down on its size and corruption. If present trends continue, not only will we be facing economic decay, by we will also have massive World Bank loans to repay. The third ramification – and this is very close to my heart – is that Government at present is completely unaccountable. They have been able to get away with all of these things. Nothing has happened. If we don’t have either a viable opposition to expose these things or a change of Government they will continue to be unaccountable after 1995 for another five years.

What are the people of Zimbabwe doing? The tragedy of Zimbabwe is that democracy, which was what the struggle was all about after all, is in ICU. We have all read about the voters’ registration exercise going on at present. We all go past these booths and see no one there. It is characterised by massive voter apathy. What are the reasons for this? I think, firstly, in Bulawayo certainly, and Matabeleland generally, that people fear what would happen if ZANU-PF lost, for a variety of reasons. There have been threats in Matabeleland in the by-election last year. It was in our own paper, the Chronicle, last year that people campaigning for ZANU-PF said that if ZANU-PF lost in Matobo South Gukuruhundi would happen again. I was speaking to Sir Garfield Todd yesterday. He was saying that he cannot get his domestic workers to go and register. Friends of my parents here in Bulawayo are saying the same thing. Their domestic workers will not go and register because they are fearful. A second reason for this apathy is that, and let’s be frank about it, people are sceptical about politicians and the whole political process in this country, and that doesn’t just mean ZANU-PF. It includes the Forum; it includes opposition parties. Many people have said, especially young people, “At least ZANU-PF leaders have made their money. If we let someone else in they will have to start feathering their nests right from the scratch”. Given the history of politics in Africa, that is quite a reasonable assumption. There have also been internal wrangling in parties, and the Forum especially in recent weeks has been wracked by internal divisions. As a result, for these two reasons, fear and scepticism regarding the political process, people, especially young people, are throwing their hands up and saying “What’s the use?”; “Why bother registering?”

I want to give you a few reasons why you should register if you haven’t registered yet and why you should go out as a matter of urgency and get your friends and fellow workers, employees, everyone you know, to register. Firstly, as Harold Wilson once said, “A week in politics is a long time”. It is April 1994. The election is unlikely to happen before April 1995. The President can wait until August 1995 before calling an election. A year is much longer than a week. A great deal can happen in Zimbabwean politics within the next year, and let me just speak positively about the Forum in this regard. You have all read about the internal wrangling. We believe that within the Forum much of this strife has been orchestrated by ZANU-PF. As a lawyer I have worked with the CIO and against the CIO and the Police since 1983. I believe I can see someone who works for the CIO a mile away.

When the Forum was first set up in 1992 I warned Dr Dumbutshena, saying “so and so and so and so cannot be trusted – just believe me”. Being the gentleman that he is he didn’t take note of what I said and sure enough these people have been within the Forum and dividing, causing strife. You know if I was in ZANU-PF, if I controlled the purse strings, if I wasn’t committed to democratic principles, I think I would do exactly the same. The CIO in last year’s budget was given 90 million dollars. That is an enormous amount of money. I am involved in the Legal Resources Foundation. We run legal aid clinics throughout the country. We operate countrywide on a budget of three million dollars a year – we give legal advice to thousands of people countrywide on three million dollars! The CIO last year was given 90 million dollars and it seems absolutely logical to me that they would pay people to go in to act as agent provocateurs in opposition parties to disrupt and destabilise. That has happened within the Forum. But the good news is that we have now recognised this problem. The Forum has undertaken a cleansing process. We are identifying the people who are genuinely committed to democracy and to establishing a viable opposition party and we are starting to get our act together. We are the first to admit that we haven’t had our act together.

Last week we won our first victory. ZANU-PF tried to put up a candidate against us in Ward 5 in Bulawayo. I know two eminent white people were approached: the one was not prepared, the other was prepared to stand by was disqualified. They battled to get a candidate to stand against us and at the end of the day they couldn’t find one and we won. The Victoria Falls Town Council elections are taking place on 7^th May. We have been organised for weeks. I was speaking to someone on the telephone this afternoon. I am told that ZANU-PF are in total spin. They only submitted their nominations at 3.40 yesterday afternoon. They had a Cabinet Minister up in Victoria Falls running around furiously trying to find candidates. The Forum is starting to move. Let me also say that we are involved in unity talks with other opposition parties. At the end of 1992 I went to Kenya as part of an American observer team and one thing I learnt there was that if you are divided you fall. There are many in the Forum Party who recognise that. We are engaged in serious unity talks with other opposition parties so that we can try to present to the electorate a cohesive unit. So that is the first reason. The Forum is getting its act together. It is going to have its act together by the time the elections come. That will be no use at all if you don’t register.

The second reason, and contrary to what ZANU-PF and its various organs would have you believe, is that the Forum Party does have policies and they are radically different to ZANU-PF’s policies. ZANU-PF is unable to implement the policies that this country desperately needs. We have a manifesto. We don’t have the money sadly to publish it widely, but it is all down there in a detailed document and I just want to spend a brief amount of time highlighting three areas bearing in mind the topics I have spoken to you about this evening.

Firstly, the Forum believes in small government. We have one of the largest cabinets in the world. We spend an enormous amount of money on different Ministries which do absolutely nothing at all. Let me give you one practical example. Last year some Z$ 34 million was allocated in our budget to the Ministry of National Affairs and Employment Creation. One would hope that the bulk of that money would go to employment creation. That is the pressing need in this country! A friend of mine, who is involved in a venture capital company, recently went to ZANU-PF’s headquarters in Harare where this Ministry is located to get involved in discussions regarding employment creation. Do you know what it comprises of? It comprises of the Minister responsible for employment creation and his secretary! So much for employment creation! So much for the 34 million dollars going to that! The bulk of that money is going to ZANU-PF. Our taxpayer’s money which could be put into productive enterprise is going to non-productive enterprise. We have Governors all over the place, who all live with Ministerial status. A couple of weeks ago Government spoke about enhancing their status. They all drive around in Mercedes Benzes worth $400,000 each. So that is the first fundamental difference between the Forum and ZANU-PF. The Forum says it will have 14 Ministries – no more. We believe we can run this country on 14 Ministries; we believe we can slash Government expenditure. We don’t have to rely on this system of patronage that keeps Robert Mugabe in power. The reason he has got such a large Government is because he has got so much internal division and wrangling. He has got to have two deputies, two vice-presidents, so that he keeps a balance. He has got to have all the other Ministers so that they are all happy and don’t make public what happened in Mozambique. We don’t have that problem. We do not have skeletons to hide.

The second policy difference is important. It is a strong anti-corruption policy. We have studied anti-corruption legislation introduced throughout the world. We say that we will bring in a Corruption Commission headed by an independent person so that we don’t have to rely on the Daily Gazette, which is doing a sterling job, to expose corruption on its own. In the meantime we hope they will continue to perform this function. We will have a permanent Corruption Commission with wide powers to investigate. We say we want a Freedom of Information Act. This is an Act used in Australia, the United States and other countries. It gives citizens the power to have access to Government records. Minister Kengai would not two months ago have been able to deny that there was a land scandal because in terms of this legislation, if it was enacted in this country. The Daily Gazette would have been able to force its hand. It would have been able to say, “We want to see all 98 leases and we want to see them now”. This legislation is used in Canada and Australia to do a myriad of things. For example, citizens and the press can investigate how the budget is drawn up and how the money is being spent. They are entitled to see Government documentation and that in itself combats corruption. ZANU-PF wouldn’t dream of having a Freedom of Information Act. We say that we want a new Bribery Ordinance similar to the one in Hong Kong where civil servants have to explain why their standard of living exceeds their income. I would love to get General Mujuru to explain how he owns half of Bindura, having been in the employ of the National Army of Zimbabwe. I would love to find out how some of these ZANU-PF supporters in Harare have accumulated so much wealth on civil servants’ salaries in such a short space of time. ZANU-PF would not dream of introducing such a Bribery Ordinance. We say we will introduce it.

We will introduce a policy which encourages openness. One of the first things that has to be done is the disbanding of the Mass Media Trust. We will make sure that the Herald and the Chronicle are owned by the people and are used in the interests of the people and not in the best interests of ZANU-PF. Then we will amend the Broadcasting Act to permit the establishment of private radio and television stations not controlled by ZANU-PF. There are other policies which we will introduce to encourage open government.

These three general measures are fundamentally different to ZANU-PF. ZANU-PF wouldn’t dream of introducing them. The Forum says we will introduce these measures and what we say in our manifesto is that we will record what we are going to do in the manifesto. If we don’t do it, vote us out. We encourage you to vote us out if we don’t do it.

But is this all pie in the sky? These are laudable policies, I am sure you will say, but what are the scenarios facing us? Well, let me give you a world case scenario and a best case scenario. The worst case scenario is that the apathy we see today will continue; that ZANU-PF will win the bulk of the seats. I say even in that worst case scenario, go and register because there are certain areas where the Forum can still win individual seats. The Forum could get 5, perhaps 10, seats in Parliament. If we get those 5-10 seats, those parliamentarians, those Forum parliamentarians, will immediately obtain parliamentary immunity. Parliamentary immunity is vital for the debate of serious problems facing any country. I can only say certain things on this platform, because if I not absolutely sure of my facts, if I am relying on the word of someone else, there is always a danger that I will be sued for defamation or worse. The moment you get into Parliament you enjoy parliamentary immunity. You can say what you like and you cannot be touched. If we get competent Forum Members of Parliament into power, even in this worst case scenario, when we only win 5 to 10 seats, those Forum Members of Parliament can do two things: they can start to expose corruption by mentioning in Parliament those matters involving facts we are not absolutely sure of and perhaps can set the ball rolling in exposing corruption. The other thing that they can do is to start pushing some of the Forum’s policies. One can introduce Private Members’ Bills. Sure, they can be outvoted, but we are talking about a process of democracy here. If you introduce certain concepts into Parliament there are people in ZANU-PF, good people, men and women of integrity, who will latch onto some of those ideas and foster them. So even in the worst case scenario, go and register because in Bulawayo South we stand a very good chance of winning. In Gweru Central, in some of the Harare Central constituencies and in Mutare we have a very good chance of winning. If you don’t register you don’t have a hope.

How about the best case scenario? What if the Forum wins? For those sceptics I want to remind you of what happened in Zambia. In October 1991 the MMD came to power in Zambia. Do you know that the MMD was first set up in the Garden Hotel in Lusaka in July 1990? It gathered together people opposed to UNIP. President Kaunda acted in a very similar fashion to the way President Mugabe is acting now. He did not believe that he could lose. Do you know that the MMD believed that they could not win? When they won they were hopelessly disorganised because they only expected to become a viable opposition – they never expected to come into power. I quote Harold Wilson’s view again: “a week in politics is a long time”. It is not beyond the realms of possibility that Forum could win if the Forum could link up with other political parties; that the electorate could get so fed up with what is going on that they decide to change government. If we don’t register that will never happen.

Ladies and Gentlemen, in conclusion let me just express the danger we are facing at present is that the elections could be lost by 4^th May 1994. Let us not kid ourselves; ZANU-PF doesn’t mind having a low voter registration turn-out. I know Minister Dabengwa has been talking about it. He is a man of integrity and I think he wants to do what is right and is encouraging people to register. But have you heard a single word by the President of this country encouraging people to go and register? Did he say a word about it on Independence Day when he had an audience of 50,000? I didn’t hear him. Perhaps I missed something. Did any of you here mention a word about people needing to register? I didn’t hear it from the President of the country! What I am saying is that it is not necessarily in the interests of ZANU-PF for people to register.

I want to tell you in closing a little story. I was down in Botswana in February and I had a bit of run in with the Registrar General, Mr Mudede. We were both at a conference looking at the electoral process and before I had the run in I have a couple of private chats with him and he told me two things. I approached him and I expressed my concern about the voter registration exercise which wasn’t happening then, and he told me not to worry because two things were happening. He said to me that we have already got mobile voter registration teams in rural areas, and secondly that all those who are turning eighteen before the elections will automatically go onto the voters’ roll. He explained to me that the moment you register, you get your identification documents and you get your number, it goes into a computer and he said that registration will automatically put you onto the voters’ roll. Now what has happened since then? Since February this year we hear that everyone has to re-register again and we are told that the registration process hasn’t happened in the rural areas. But where lies the truth? Have they been registering the rural people or haven’t they? And why aren’t these young people going to be automatically registered? I wonder if we are seeing another scam developing here. Let’s face it, ZANU-PF are happy if rural people register; they know they lack support in urban areas. So, firstly, they want rural votes. Secondly, the last thing they want are votes from young people. People who have turned eighteen in the last five years haven’t got a single reason to vote for ZANU-PF and they’ve got millions of reasons to vote for other people. Now, what I am saying in all of this is that there is a grave danger that if a disproportionate number of voters register in rural areas, but young people don’t register, ZANU-PF could win by default. What happens if ZANU-PF wins by default is that they will have another 5 years of unaccountable government, another 5 years of corruption, another 5 years of the system of patronage, of bloated government. The question I want to leave you with is can democracy in this country survive another 5 years? I fear that it can’t. I fear that ultimately the strains on our society will become so great that people will lose all respect for the democratic process, and what happens then is that we get a Liberia or a Rwanda or a Burundi, where young people take to the streets.

Ladies and Gentlemen, you have a duty to go and register if you haven’t registered yet. If you have registered and know of people around you who haven’t, go and tell them to register. Don’t beat around the bush – we have until 4^th May to register. Your future is in your own hands.

SPEECH TO BULAWAYO WOMEN LAWYERS ASSOCIATION

I have been asked to kick off the debate on the question “Should HIV positive women be allowed to abort under existing laws, namely the Termination of Pregnancy Act”? In my allotted time of 10 minutes I shall give you my general views on abortion and then I shall turn specifically to the provisions of the Termination of Pregnancy Act No. 29 of 1977 in an effort to answer the specific question raised in this debate.

A few thousand years ago the Psalmist wrote (in Psalm 139: 13 – 16): “For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place. When I was woven together in the depths of the earth, your eyes saw my unformed body.”

From this passage we can glean that every person from the moment of conception is a person in God’s eyes, and somebody who has been fearfully and wonderfully made. I discovered this for myself last year when my wife had a scan. Her pregnancy was hardly noticeable and yet there revealed on the screen was a tiny baby sucking its thumb. Indeed tests using ultrasound have revealed that babies in the womb are startled by bright light, jump at loud buzzes and when a soft rattle is shaken they often suck their thumbs.

Lest I be accused of being emotional regarding this topic let me outline the physical facts regarding the person-hood of babies in the womb.

By the time a baby is 18 to 25 days old (that is after the union of sperm and egg to give 46 chromosomes, and long before the mother is sure that she is pregnant) the heart is already beating. After four weeks the head and body are visible and there are rudimentary eyes, ears and mouths. At six to seven weeks there is brain functioning. Significantly at eight weeks there is not only a brain, but the fingerprints on the hands have already formed and except for size, will never change. All the limbs are apparent at this stage including fingers and toes. It is at this stage, that is at eight weeks, when abortions normally begin to be performed. At nine to ten weeks the baby can squint, swallow, move his tongue and the sex hormones are already present. By twelve to thirteen weeks, the baby has finger nails, sucks his thumb and can recoil from pain.

I understand that abortions are normally carried out between seven and twelve weeks of pregnancy. At this stage procedures of DNC or suction are used. After sixteen weeks abortion using the salt poisoning method is used.

The reason I mention these facts is because I believe we cannot duck the problem that this entire abortion debate is ultimately about weighing up the lives of two people: The mother and the child. My belief is that every life is precious and sacrosanct. Section 11 of the Declaration of Rights in the Zimbabwe Constitution enshrines life as being the most fundamental right of any individual. Section 12 (1) of the Constitution states:

“No person shall be deprived of his life intentionally saving in execution of a sentence of a court in respect of a criminal offence of which he is being convicted”.

In terms of Section 113 of the Constitution a “person” means “any individual”. One test of individuality, in criminal law at least, is a person’s fingerprints. A person’s fingerprints mark him as an individual for life. A baby has fingerprints at 8 weeks. Now we have DNA testing which is all the more comprehensive. I understand that a person’s DNA make-up is absolutely individual and is present from the time of conception. In my view life begins at conception and killing a human life is justifiable only when it is necessary to save the mother’s life. I firmly believe that that view is supported by the Zimbabwe Constitution.

The debate today however is not on the Constitution. It is whether the Termination of Pregnancy Act No. 29 of 1977 allows for HIV positive women to have an abortion. These are the parameters of the debate today and accordingly we must all put aside our personal views and analyze whether the Act, in its present form, allows for abortions to be carried out on HIV positive women.

Section 4 of the Act sets out the grounds on which an abortion may be performed on a woman. Our debate today turns on the interpretation of two of the three grounds for abortion contained in the Act namely Section 4 (a) and Section 4 (b). I will discuss each of these provisions separately.

Section 4 (a)

Section 4 (a) states that a pregnancy may be terminated:

“where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of her physical health that the termination of the pregnancy is necessary to ensure her life or physical health, as the case may be.”

We need to consider the following:

1. Does continuation of the pregnancy so endanger the life of the woman or constitute a threat of permanent impairment that the abortion is necessary to ensure her life or physical health? I can see that the determination of this question is primarily a medical matter and that as a lawyer I am not qualified to answer it. However I would raise the following questions that any medical practitioner doing an abortion will be obliged to consider in terms of Section 5 of the Act.

(a) Is it the pregnancy that endangers the life of the woman? In other words is it the pregnancy that endangers the life of the woman or the HIV infection? Surely the principal thing that endangers the life of the woman is her HIV infection not the pregnancy. To use another example should we extend this measure to women suffering from terminal cancer. If an abortion is granted to a woman because she is going to die from HIV then do we extend that right to women dying from cancer? The point I am simply making is that doctors will have to say that it is the continuation of the pregnancy that will bring the woman’s life into danger and not her HIV infection before this provision can be used to allow an abortion. I understand that in the early stages of HIV infection a pregnancy does not in itself endanger the life of a woman or constitute a serious threat of permanent impairment of her physical health. Accordingly the Act certainly does not allow for the automatic right of a woman who is HIV positive to have an abortion.

(b) But there is a further insurmountable hurdle in my view regarding this section. The termination of pregnancy must be “necessary to ensure her life or physical health”. Sadly Aids is at present a terminal disease. If a woman has a child in the early stages of her HIV infection I understand that neither her life nor physical health is seriously threatened by pregnancy. If a woman is so far down the road with an HIV infection, or perhaps has full blown Aids, she, sadly, will die shortly anyway. In other words what I am saying is that doctors will have to answer this question: can an abortion ensure the life of a woman or her physical health? If the continuation of the pregnancy is not the principal threat to the woman’s life or physical health and the termination of the pregnancy will not make any difference to the woman’s life expectancy or physical health, then this section cannot be used.

There is a further Constitutional point to consider regarding this Section. I fully believe, as I have said before, that where the abortion will save the mother’s life it should be done. However HIV infection is a terminal disease. The woman, as medical science stands at present, will die. As I will show you later the child however in her womb has a 50% chance of survival. The abortion will not save the woman’s life but it will certainly kill a child with a 50% chance of not getting HIV. In the circumstances we have a conflict between Section 12 of the Constitution and Section 4 (a) of the Act. The Constitutional provision must prevail and I believe that the abortion should not go ahead.

Section 4 (b)

Section 4 (b) of the Act allows a pregnancy to be terminated where
“there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped”.

This section obviously must be interpreted to deal with the question of a child that may possibly be infected with HIV virus as a result of their mother’s infection. Before I analyse this section I believe that a number of facts need to be placed before you before we come to interpret this section. I understand that the foetal blood circulation system is separate from the mother’s blood circulation. Thus it does not follow that a child of a mother who is HIV positive will automatically get the HIV virus. I understand that transmission of the virus can occur as follows:

1. it can occur in utero although as I have said this is not automatic;

2. it can occur during child birth;

3. it can occur through breast feeding and I understand that the HIV virus has been found in breast milk.

There are no accurate studies done in Africa but I am advised that according to studies done in Europe approximately 50% of babies born to HIV positive mothers are HIV positive themselves. No doubt our medical colleagues can give some idea of the position in Zimbabwe.

Bearing in mind the abovementioned facts we must now come to consider the provisions of the Act.

1. The Act says that there must be “a serious risk” that the child to be born will suffer from a physical or mental defect. How are we to interpret this phrase “serious risk”?

I have strong views on capital punishment and I believe that there is a useful analogy that can be drawn. My opposition to capital punishment stems from the fundamental belief I have in the sanctity of life. In particular I believe that because of the flaws in our legal system I would rather run the risk of having a guilty man remain in prison for life than have an innocent man hang. All the more so I believe this for innocent babies. I would rather give an innocent child the benefit of the doubt and let it take its 50% chance of being a normal healthy child. I have been advised that in Zimbabwe at least there is no accurate way of determining whether a child is HIV positive until it is born. Can doctors honestly say that 50% chance is a “serious risk”? I believe not. I believe that even if there is only a 25% chance that a child will be born normal, that chance should be taken.

Technically it is almost impossible for doctors to determine whether a child will be HIV positive. But there is another aspect to it. The chance must always remain that the child will be normal no matter what the circumstances are. Over 100 years ago a woman fell pregnant under the following circumstances. The father was syphilitic, she was tuberculosis. Of the four children born the first was blind, the second died, the third was deaf and dumb and the fourth also tuberculosis. The doctor was asked “what would you have done?” His response “I would have ended the pregnancy”. Then that person would have killed Beethoven.

2. But there is a further, and what I believe to be an insurmountable, hurdle to be overcome before this section can be used to allow an abortion. The section says that there must be a serious risk that the child will suffer “from a physical or mental defect of such a nature that he will permanently be seriously handicapped. I think that the words “defect”, “permanently” and “seriously handicapped” must be scrutinized closely. I believe that the intention of the legislature was to allow abortion to terminate the life of a child that has a defect that can
never be repaired. In other words if the child does not have a brain or several limbs or vital organs then an abortion can be performed. In other words there must be a serious risk of a defect that is permanent that can never be repaired, never cured, never rectified.
Aids is a disease not a defect. One day there will be a cure for Aids. There will never be a cure for a baby without a brain. I come back once again to my argument about giving a child a chance. As long as there is a chance that a cure will be found for Aids surely an innocent child should be given the benefit of that chance? Accordingly my view is that Section 4 (1) (b) cannot be used to abort a child of a mother who is HIV positive because it was not intended to be used for this purpose.

In conclusion my view is that Section 4 of the Termination of Pregnancy Act does not automatically allow abortions to be performed on HIV positive women. My view is that in answer to the question raised in this debate the Termination of Pregnancy Act, as it is presently constituted, does not allow HIV positive women to abort.

FACTS SHEET

1. 1993 United States Survey. 1 900 women 7% (hard cases) made up as follows:

3% – danger to mother’s health

3% – problem with babies health

1% – rape/incest

93% – birth control/social reasons made up as:

16% – didn’t want child

21% – not ready for responsibility

21% – can’t afford

12% – relationship problems

11% – not mature enough

8% – enough kids

4% – other reasons

2. Abortion is big business in the United States. 1,5 million abortions are performed a year at approximately US$300.00 each. Generating US$450 million dollars a year.

3. Los Angeles people want a certain kind of child. In some clinics 99% of abortions are to ensure a male child.

4. Legal abortion can also be fatal.

5. Does male support for abortions signal respect for women’s rights. Males benefit greatly from abortions. Consider maintenance in Zimbabwe. Abortion is “a way to legitimize irresponsibility for men”.

6. Choice? Do women receive adequate counselling. Can they make an informed choice. All the facts about abortion should be given to mothers before an abortion is concerned. It should be mandatory for mothers to see an ultrasound of their baby before the abortion is given. 90% of counselling in the United States gives few facts and are heavily biased in favour of abortion.

7. Rape and abortion. A study in Minneapolis of 3 500 consecutive rapes revealed not a singly pregnancy. In Czechoslovakia, out of 86% induced abortions, 22 were done for rape.

Recent Developments in the Legal Field

By David Coltart

Tuesday 15^th March 1994

Institute of Chartered Secretaries and Administrators, Bulawayo

I have been asked to speak to you today about recent developments in the legal field, and I suppose that normally Chartered Secretaries at a function like this would expect to be addressed on developments in law which directly affect the business sector. For example, an exposition of the recently enacted Private Corporations Act or proposed changes to the Law of Insurance may seem the most appropriate thing to consider. However, when your Chief Executive, Mrs Julie Kuhn, invited me to speak to you she gave an extremely wide mandate and I propose to exploit that to the full. I am further fortified in doing this by the theme of this seminar: “Update on Current Affairs” and the proposed title of my talk being “Recent Developments in the Legal Field” as opposed to “Developments in Zimbabwean Law”. I do not propose to delve into the minutiae of various legislative changes which have occurred in the past year or so. I would like to discuss what I believe to be a much more profound development in Zimbabwe which could affect every aspect of our lives and certainly our prospects of enjoying meaningful economic development.

In last Thursday’s Financial Gazette the editorial concluded with the following sentence: “Economic reform must be accompanied by far reaching political reform to cultivate a stable, open and accountable democratic process”. Almost three years ago when I addressed a similar conference to this, organised by KPMG Peat Marwick, I said: “ESAP will stand or fall on the degree of genuine democracy brought to Zimbabwe”. In the same speech I also said: “any undermining of the judiciary will inevitably affect not only the internal economy but also the confidence of foreign investors”. In May 1991, when I gave the speech, I thought that Government had seriously undermined the judiciary and respect for our Declaration of Rights by virtue of Act 30 of 1990 which, amongst other things, amended Section 15 of the Declaration. At the time I argued that the amendment was not just an issue of reintroducing corporal punishment for juveniles (reversing the Supreme Court decision in State v A Juvenile S-64-89) but that it displayed a more serious ulterior motive. That motive was to undermine the Supreme Court and to emasculate the Declaration of Rights. I further argued that this action could adversely affect the success or otherwise of the Structural Adjustment Programme.

I have not changed my views in any way and am heartened to see the Financial Gazette saying the same things. The business community in Zimbabwe has in many instances been naive in thinking that economic reform is unrelated to respect for the Supreme Court and the Declaration of Rights. Many in the business community cannot see the link between pronouncements on whipping, hanging and demonstration on the one hand and the success of economic reforms on the other. And yet the two are inextricably intertwined. It is logical that prospective investors will look for a stable political and judicial environment. An essential element of stability is certainty. Any prospective investor wants to know that if he reaches an agreement with Government or a local company that that agreement will be honoured. A prospective investor can only have confidence that agreements will be honoured if fundamental laws are not changed frequently and if there is a completely independent judiciary to adjudicate over any dispute arising out of any investment agreement. All rights and obligations in this country ultimately flow from the Constitution which is pivotal as far as the interests of the prospective investor are concerned. Likewise the Supreme Court is the final arbiter on any dispute and it is vital that its decisions be honoured in letter and spirit by all, especially Government.

In 1991 I feared that Government did not recognise the link I have referred to now. In other words, I feared that Government felt that the Constitution was just another body of law without any particular significance; a body of law which could be changed at its whim. Likewise I was concerned by the seemingly illogical reversal of Supreme Court decisions. I do not propose to explain why the amendments were illogical. Suffice it to say, however, that most of the amendments to the Constitution appear to be motivated by the desire to put the Supreme Court in its place.

Today I would like to analyse Government’s actions vis a vis the Supreme Court and Constitution since May 1991. It appears as if Government is almost 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 enhanced them. For example, in the case Catholic Commission for Justice and Peace in Zimbabwe v the Attorney General and Others SC-73-93 the Supreme Court ruled that a long delay in executing a sentence o death constituted degrading and inhuman punishment in violation of Section 15 (1) of the Constitution of Zimbabwe. It is pertinent to note that this decision was approved by the Privy Council which decided on a similar case shortly after our Supreme Court had ruled on the matter. Shortly after the ruling, Act 9 of 1993 was passed in Parliament amending Section 15 of the Constitution again and reversing the Supreme Court’s decision. Indeed, Section 15 (1) of the Declaration of Rights (which reads “no person shall be subjected to torture or to inhuman 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 3 years. To give you some idea of how ridiculous these frequent amendments are I should mention that the entire United States Constitution has only been amended 13 times in the last 200 years. Another recent example is given in the Minister of Home Affairs’ reaction to the Supreme Court’s recent decision regarding the right of citizens to demonstrate. The knee jerk response was to say that legislation will be introduced effectively 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 9 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. As you are all aware, 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. Furthermore, President Mugabe’s statement reported in the Herald on 17^th July 1993 to the effect that the Government would not accept a Court decision against “Government’s rights” to acquire land under the Land Acquisition Act constitutes a very serious show of 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 mentioned, however, is that the pardoning was an abuse of the President’s constitutional prerogative and a manipulation of our Constitution. It also needs to be said that the pardons were but one of a 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 the State v Masiwa in 1992 (2) ZLR 7 (Supreme Court). This is a little known case involving 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 that 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. As I have said, this is a little known case but it illustrates the fact that 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.

I believe that all Zimbabweans, especially businessmen and those intending to invest in the country, need to realise that they are not immune from the effects of these governmental actions. Like it or not, these decisions taken by Government adversely affect the investment climate of the country and it is necessary for us to consider the consequential effects. I would suggest that there have been the following ramifications:

1. The Executive has created a constitutional crisis in Zimbabwe. I do not believe that I am overstating the point when I say that it is fortunate that our Supreme Court bench has not resigned en masse. The actions of Government in reversing carefully considered judgements of the Supreme Court, interpreting fundamental human rights provisions, pardons for no obvious reasons of criminals whose appeals have just been dismissed by the Supreme Court and holding judgements of the Court in utter contempt, as has happened in the Churu Farm matter, are serious slaps in the collective face of the Judiciary. All of these actions speak of a Government which does not respect the Judiciary. The Judiciary is under attack by the Executive directly and indirectly. Through these actions the Judiciary has been seriously undermined and weakened. We must not forget that the doctrine of separation of powers is the foundation of any democratic state. The doctrine is designed to balance power amongst the Judiciary, Legislature and Executive. The Legislature is there to make the law, the Executive is there to put it into practice and the Judiciary is there to interpret the law. The moment one of the arms of Government is weakened a very serious situation arises in any country. From a business perspective it means that we can no longer have certainty that our business affairs will be determined fairly and fearlessly.

To give you an example of the danger which faces Government I need only refer to a recent defamation case I handled on behalf of the Deputy Sheriff, Kwekwe, against a local businessman. This local businessman alleged that the Deputy Sheriff, in attaching his property in execution of a judgement debt, had acted as a racist. Reports were made to political heavyweights who fortunately declined to act on behalf of the businessman. The Courts backed the Deputy Sheriff to the hilt and granted him defamation damages. As a result the Deputy Sheriff still feels strong enough to execute judgement debts, which of course are all grist to the mill of business. The moment Deputy Sheriffs are not prepared to execute on judgement debts is the moment the business sector is seriously jeopardised. Deputy Sheriffs will only continue to operate as long as they are backed by a fiercely independent, strong Judiciary.

We are fortunate still to have men and women of integrity and boldness on the bench. The danger is that Government will overstep the mark and that these great judges will either reign, to be replaced with sycophants, or lose heart. If that happens much of the certainty that we have taken for granted in our justice system will go. We must not forget that our Judiciary has been held up as one of the best in Africa, if not the world, and that no doubt is most attractive to any prospective investors. Take that element of the business environment away and prospective investors may think twice about coming here.

2.  The entire legal system has been undermined. The moment it appears as if there is one law for one person and another law for another set of persons two things happen. Firstly, local Zimbabweans tend to lose some respect, if not all respect, for the laws of the country and the legal system. Once the perception that some people are above the law gains a foothold in the psyche of the citizenry unlawful activity and corruption begin to flourish even more than has been the case in the past. I have no doubt that members of the CIO and rank and file member of ZANU-PF believe that they can literally get away with murder as far as acts of political violence are concerned. If they can get away with acts of murder they will think they will be able more readily to get away with acts of corruption, fraud and theft. Corruption is rampant in this country and I have no doubt that these acts of corruption are bleeding the economy to death. I have no doubt that millions of dollars of state funds have been siphoned out of state coffers by those people powerful enough to be immune from investigation and prosecution. How much more immune those people will feel now. Secondly, we must not minimise the effect that this perception, that some people are above the law, will have on potential foreign investors. It will have a two-fold effect: it will scare off genuine investors of integrity and competence who will fear that their business interests will be jeopardised unless they are prepared to pay bribes; conversely, it will attract devious businessmen who can only compete by paying bribes. The third world is bedevilled by incompetent contractors who build substandard structures after gaining contracts to perform work by bribing a suitably powerful politician. We cannot afford this in Zimbabwe.

3.  The Declaration of Rights has been seriously undermined by Government. As I have stated above, every time the Supreme Court has sought to expand the rights of Zimbabweans in interpreting the Declaration of Rights it seems as if Government has sought to retract those rights. It is important to remind ourselves that our Declaration of Rights reflects the fundamental rights of human beings contained in the International Bill of Rights documents. These are fundamental rights which are not similar to any other legislation. No one questions the right of Government to amend laws. Most laws should be flexible and Governments must change laws to address the changing circumstances in any country. However, the rights contained in our Declaration of Rights constitute the core of rights which allow any given society to operate in a peaceful and civilised fashion. Government has treated the Declaration of Rights as if it is nothing special and as if it is similar to any other piece of legislation. It has treated the Declarations as something subjective, malleable and not part of natural law. The dangerous flaw in our Constitution is that whilst our Supreme Court can interpret their Rights, Government can reverse decisions taken by the Supreme Court and change the Constitution at the drop of a hat.

In this regard our Constitution stands in marked contrast to two of Africa’s newest Constitutions. For example, the Ghanaian Constitution, which came into force on 7^th January 1993, entrenches fundamental human rights. Section 2(4) of that Constitution states that any enactment of Government inconsistent with the Constitution can be declared unlawful and that the failure to carry out any Supreme Court ruling in terms of Section 2 (4) shall constitute a ground for the removal from office of the President. Section 290 of the Constitution entrenches the fundamental rights contained in the Constitution which can only be changed if the proposed changes are submitted to a referendum in which 40% of those entitled to vote must vote and 75% of those who vote must approve of the changes. To give another example close to home, Article 25 of the Namibian Constitution states that no one can amend the fundamental rights contained in the Constitution; they are entrenched forever.

Sadly, our Constitution was flawed from the very beginning. One of my principal criticisms of the Lancaster House proceedings is that far too much attention was paid in securing what I would term “white rights”. Little was done to ensure that universally accepted fundamental rights were entrenched. As a result our Constitution was flawed from the beginning and Government’s scant regard for it has exacerbated the problem. Government is quite right when it says that it is acting constitutionally in amending the Constitution. They are acting within the terms of the Constitution but in effect they are continually making the rules of the games as they go along. They are not abiding by fundamentally internationally accepted human rights and norms. To give an extreme example, Government can, in terms of the Constitution as it is framed at present, act constitutionally to amend the Constitution to bring about a one-party state or to acquire compulsory urban business property. All it needs to do is to get a sufficient majority in Parliament and they will be acting entirely “constitutionally”.

The business community is by its very nature conservative and traditionally not interested in “human rights”. As long as the economy is being liberalised the business community is generally happy. Certainly this is the case in Zimbabwe at present where the business community has shown little disquiet over most of the acts of Government described in this speech. For example, the Confederation of Zimbabwe Industries, business houses and the like have been deafeningly silent in not condemning the assault on the Judiciary and the Declaration of Rights. What the business community has failed to recognise is that life in Zimbabwe, including business life and its survival, is at present ultimately not determined by universally accepted standards of conduct but by what is convenient to Government. The playing field is determined by the mere whim of Government. The business community must wake up to the fact that whilst today we may be dealing with reversing Supreme Court decisions relating to the death penalty, tomorrow we may be dealing with the reversal of a Supreme Court decision outlawing the compulsory acquisition of urban factories. Section 16 of the Declaration of Rights, which deals with compulsory acquisition, can be changed just as easily as Section 15 has been changed in the past. And as long as this situation prevails there can be no absolute certainty in business practice in Zimbabwe. These recent developments in the legal field must mean that we remain a relatively unattractive investment option.

I have painted a fairly gloomy picture by it does not have to be. Our most urgent need in Zimbabwe at present is to campaign for the enactment of a new Constitution. Why should Zimbabweans be left behind when countries we are closest to both geographically and spiritually such as Namibia, South Africa and Ghana are enacting constitutions which quite frankly are light years ahead of ours? Our Constitution is outdated – it was cobbled together to bring a war to an end. The situation in the country and in the region has changed dramatically. The Cold War has ended and the world is a different place. We need a constitution which:

(a)    Entrenches certain fundamental rights, agreed upon by the citizens of Zimbabwe, which cannot be changed at the mere whim of the Government in power at the time;

(b)   Empowers and effectively confirms the independence of the Judiciary, so that once there has been a ruling on a case involving fundamental human rights that decision cannot be changed or interfered with in any way;

(c)    Introduces severe penalties for anyone, including the President, who shows contempt for the Courts or attempts to ignore or subvert constitutional provisions.

Only when we get a constitution which includes these non-negotiable provisions can the business community and potential investors have absolute confidence that they are investing in a country with a level playing field. The challenge is yours. The Judiciary, Human Rights groups, the Law Society of Zimbabwe, Trade Unions and students have done their bit in trying to protect the Constitution. Now is the time for the business community, for people like Chartered Secretaries, to recognise the role that they can play. We have a very good example of what can be achieved just south of the border. When the business community in South Africa finally realised that apartheid was going to jeopardise their long term business interests they acted very strongly to bring the South African Government to its senses. And now in Zimbabwe it is imperative that the business community uses its considerable muscle to impress on Government that these can be no meaningful economic progress in the long term without far reaching legislative changes which cultivate, in the worlds of the Financial Gazette, “a stable, open and accountable democratic process”.

FORUM MEETING: BULAWAYO

Introduction

Zimbabwe has never been in such an economic crisis as it is at present. Never before in our history have so many people been out of work, never before have our people battled to survive as they are now. The Z$ is a worthless currency, its spending power is minimal.

ZANU blames the economic crisis on drought, world recession, apartheid and the colonial legacy. Others blame ESAP for our plight.

Tonight I want to leave you with 2 principal thoughts:

1. ZANU (PF) is responsible for the economic plight we are in more that anyone or anything else; and

2. having got us into this mess, having created this mess, ZANU is not able to get us out of it.

ZANU created this mess

People are only given strong, unpleasant medicine when they are sick. ESAP is the strong, unpleasant medicine prescribed for economies that are seriously ill as ours was in 1990 and still is. Botswana does not have ESAP because it has pursued sensible economic policies over the last decade.

ZANU, however, has in 13 short years, almost destroyed what they themselves described in 1980 as the jewel of Africa. How have they destroyed it? I will give you a few examples:

1. By their ruinous half baked socialist policies.

ZANU’S policies of:

– socialism

– tight central Government controls

– hostile attitude towards external investment

– high taxation rates

effectively prevented foreign investment prior to 1990.

2. ZANU has actually promoted disinvestment. Many of you no doubt wonder how it is that ZANU (PF) and quasi ZANU (PF) organisations such as the Development Trust of Zimbabwe have acquired massive interests and shareholdings in companies such as Tregers, National Blankets, Woolworths and Nuanetsi Ranch. Through their control of the Reserve Bank, and therefore our foreign exchange reserves, they have been able to buy local companies, or major shareholdings in local companies for a fraction of their real worth.

External shareholders have only been too delighted to be paid in foreign exchange for their shares, even though they have been paid in some cases only 30% of the worth of the companies.

In the process ZANU and its leaders have acquired great wealth but at enormous cost to the country. The damage to the nation’s investment climate over the years is almost incalculable. No investor worth his salt is going to invest in a country where existing foreign investors are disinvesting and making great losses in the process.

The result of these ridiculous policies is that most people are poorer now than they were 13 years ago, we as a nation have missed out on the boom economic years of the “80’s” and the country is in a serious economic crisis.

ZANU (PF) are not capable of pulling us out

One of the greatest potential tragedies facing Zimbabwe today is that most people have their heads in the sand and are just hoping that somehow Mr Mugabe and ZANU will be able to extract us from this mess. I fear that the Nation may have to sink even further into the mire before people realise that as long as we have Mr Mugabe and a ZANU government we are doomed. I do not believe that ZANU is capable of pulling us out. Why? I advance the following reasons:

Like it or not ESAP is the medicine prescribed to us for economic recovery.
The harsh reality is that if we hope to receive the support of the international community we must continue with ESAP.

But ESAP is a recipe and all the ingredients must be used if it is to work. Leave out one or two of the ingredients required for a cake and you will find that you have a bigger mess at the end of the baking effort than one had at the beginning. ZANU (PF) has left out 2 vital ingredients:

1. It has failed to cut down on the size of Government and Government expenditure. ESAP will only work if Government tightens its belt first.

For some years ZANU has been urging people to tighten their belts but it has not tried to do so itself.

– The President lives like a King – travels to N. Korea (where we won’t get a cent of investment) on an Air Zim Boeing 707.

– When he is in Zimbabwe he has an 18 vehicle entourage.

– 2 Vice Presidents. Spending 4 million on one of V.P.’s houses in Harare

– Cabinet “reshuffle” a joke. Elevation of 8 Governors to full Ministerial stations has effectively increased size of cabinet and expenditure.

– ZANU allocated Z$20 million to itself and this is on top of the vast cost of the so called meet the people visits by the President (thinly disguised political rallies) and ZANU’s investments – where did ZANU get the money to

– build its luxurious H.Q

– buy major shareholding in Tregers, National Blankets, Woolworths, the Kadoma asbestos factory?

Where do the profits go?

In essence there is a rat in the kitchen. Whilst we all work hard by day the ZANU rat devours our wealth by night. At a time when everyone else is suffering ZANU cynically spends money on itself and its leaders’ luxurious life styles. The President’s recent calls for employers to reemploy workers now that the drought has ended reminds me of Marie Antoinette’s alleged statement “let them eat cake”. Mr Mugabe can only be dangerously out of touch with the critical state of the Nation to make a statement like that.

Worse still corruption is rampant in the country. What I have mentioned above is the money we know has been taken by ZANU and its leaders. What about the money which has been drained from our economy by corrupt hidden means?

Everywhere one turns one hears of corruption – the LORAC scandal, Zimpapers, CSC are the tip of the iceberg. Why is it that the names of politicians involved in the LORAC scandal have never been made public? The reason is simple; those involved are too close to the heart of power and the ZANU edifice will come tumbling down if their names are revealed.

The point is that as long as ZANU is allowed to drain the country of its life blood through lawful and unlawful means, the economy will not recover.

ESAP will not work unless money is put in the hands of the productive sector to create wealth rather than in the hands of those who steal it or waste it as ZANU is doing.

2. ZANU is dangerously out of touch with the World’s attitude towards investment. The success of ESAP depends to a large extent on Zimbabwe attracting significant foreign investment. ZANU naively thinks it will attract investment by tinkering with the investment code. In reality its recent actions have killed most prospects of investment. Within a couple of weeks of Dr Chidzero announcing new investment policies in April this year ZANU did the following:

A. Vice President Nkomo announced at the Trade Fair that ZANU would take white and asian businesses if they were not shared. The following points need to be made in this regard:

– he could not have chosen a worse occasion or time to make this statement

– the Trade Fair is the one time in the year when Zimbabwe has the highest number of potential investors in the country, attentively listening to the voice of Government.

– any talk of compulsory acquisition of any business makes foreign investors look elsewhere.

– the irony is that ZANU itself directly or indirectly controls a much greater proportion of the economy than local whites and asians – DELTA, ASTRA, IDC, Tregers, Zimpapers, Hunyani, Zimbabwe Commercial Bank of Zimbabwe, The Reserve Bank, Wankie Colliery, Zisco, Zesa, CSC, NRZ, Forestry Commission, ZBC, Zimbabwe Tourist Development Corporation and Air Zimbabwe.

The fact of the matter is that the Zimbabwean economy is mainly controlled by ZANU (PF) and multinationals. If there is any doubt let me give you 3 very vivid examples:

1. Sansole and Delta

2. Dlodlo and CSC

3. House in Magpie Road, IDC and ZESA – lights.

B. 70 farms were designated many of which are productive and occupied by their owners. Land is an emotive issue. But like it or not Zimbabweans have to make a choice – they cannot have investment and compulsory acquisition of land at Government determined prices. Zimbabwe will not attract significant investment as long as potential investors fear that their investments will be taken over.

C. The President made a well publicised trip to N. Korea. N. Korea is a pariah state in the world. It has refused to sign the nuclear non proliferation treaty. It consistently violates human rights.

We cannot expect investment if we continue to foster such relationships. The trouble is that deep down Mugabe admires KIM ILL SUNG and the rest of the world knows it. No sane investor is going to risk his money in a country run by a person with such totalitarian and megalomaniac tendencies.

The combination of half hearted investment policies and ZANU’S recent actions mentioned above mean that we will not attract the investment required to make ESAP work.

I hope I am wrong in my assessment. I genuinely do. The political reality is that the next election will probably only be in 1995 and much more damage can be done to the economy before then. Only time will tell.

But I challenge the Zimbabwean electorate to watch ZANU to see whether there is any sign of them changing. Your first indication will be soon with the announcement of the Budget in July. Let us see whether:-

– the Ministry of National Affairs is abolished

– the Cabinet vote is slashed (indicating a radical cut in the size of the cabinet)

– the President’s Office’s vote is slashed (indicating that he too will be tightening his belt)

– there is any indication that Government expenditure will be cut from the top down.

Our economy is terminally ill – we need radical measures to save it not tinkering. Watch to see whether ZANU is up to the task. The Forum’s policies are what is required.

I do not have time tonight to speak of the Forum’s economic policies in detail.

I would like to speak briefly about some of the Forum’s key policies:

1. We will cut Government expenditure starting at the top and work down

– Cabinet will be cut to 14

– there will only be 1 Vice President

– Deputy Ministers posts will be abolished

– Governors will be cut from 8 to 5

– the President’s entourage of 15+ cars will be cut

– State visits will be reduced dramatically

– taxpayers money will not be used to fund the ruling party

– once the Nation has seen that sacrifices are being made at the very top the civil service will be reduced proportionably.

2. The Forum will reduce the budget deficit and simultaneously indigenise the economy by:

– selling off parastatals and Government’s shares in public companies to the people

– mechanisms will be implemented to ensure that when shares are sold preference will be given to disadvantaged members of society including blacks, women the disabled and ex-combatants.

3. The Forum will improve the overall investment climate by:

– dramatically reducing taxation

– introducing a variety of new measures to make Zimbabwe more attractive to potential investors

– bringing an end to statements and policies such as grabbing businesses.

The policies have been designed by leading economists and business people and welcomed by leading economic analysts.

These policies alone will mean that ESAP has a much greater chance of succeeding. In any event these policies will have the effect of putting more money in the pockets of ordinary Zimbabweans and will give them more control over their lives.

But time is running out. The time for kidding ourselves that things under ZANU could come right is past. I am convinced that unless we act boldly now to stop the rot much of what we hold dear in Zimbabwe will be lost for ever.

This is a great country. We have wonderful, hard working and intelligent people; we have magnificent resources and an infrastructure which although creaking badly is not beyond repair. If we act boldly now Zimbabwe could once again become a great Nation. The Forum is the only option we have and its success or failure depends on the support you give it.

Talk to the National Railways of Zimbabwe Education Seminar

INTRODUCTION

I have been asked this afternoon to speak on “the legal framework for labour relations in Zimbabwe”. The topic is far too broad to do justice to it in 30 minutes; indeed students at University spend an entire year studying labour law. Accordingly I propose to take a brief look at the changes to the appeal procedure and dispute resolution procedure and then shall consider some aspects regarding termination of employment in the broadest possible terms.

Changes to Legislation

As you are aware the Labour Relations Act has been substantially amended by the Labour Relations Amendment act no 12 of 1992. Likewise Statutory Instruments 368/1985 being the Labour Relations (General) Regulations 1985 and Statutory Instrument 369/1985, being the Labour Relations (Labour Relations Tribunal) Regulations 1985 have been repealed recently and replaced by Statutory Instrument 31 of 1993, the Labour Relations (General) Regulations, 1993 and Statutory Instrument 30 of 1993, the Labour Relations (Settlement of Disputes) Regulations, 1993 respectively. This afternoon I intend concentrating on the Labour Relations Amendment Act itself and statutory instrument 30 of 1993.

I shall concentrate on three changes to the act and regulations, namely changes to the appeals procedure, the prescription of disputes and employment codes of conduct legislation.

Appeal Procedure

Zimbabwean workers and businesses have been burdened by the cumbersome 5 tier appeal procedure first instituted in 1985. I am sure that you will agree with me when I say that the former procedure was detrimental to the interests of workers, management and productivity in Zimbabwe. To illustrate my point I should mention that tomorrow I am handling a case on behalf of the Railways before the labour relations tribunal (in terms of the old regulations) in connection with a Railways employee who was dismissed after being absent from duty in December 1987 without permission. Five years have gone past and this worker still does not know where he stands through no fault of the Railways. And the procedure isn’t finished yet as any party aggrieved by the decision of the tribunal can still appeal to the Supreme Court which will take at least another year. Here we have a case involving a simple matter which has taken at least five years to resolve. Justice delayed is justice denied; the worker in this case has been held in limbo for five years; the Railways face the prospect of having to pay the worker five years in back pay when no work has been done. Clearly the law was entirely unsatisfactory and government is to be commended for shortening the appeal procedure.

In Hong Kong there is only a 2 tier procedure. One first appears before a labour hearing officer who considers legal and factual issues. Thereafter there is only an appeal to a higher body on matters of law and cases are determined extremely quickly. I would of course have liked a similar appeal procedure to be introduced in Zimbabwe as I believe it is the cheapest and quickest method for all concerned. Government has reduced the 5 tier procedure to a 3 tier procedure as follows:

1. Initially disputes are still handled by labour relations officer whose powers are somewhat extended save for the fact that they cannot now issue an interim order in terms of section 109 the Labour Relations Act as amended by section 24 of the Labour Relations Amendment Act 12 of 1992. The labour relations officer can either make a determination himself or he can refer the matter for determination by senior labour relations officer.

The labour relations board has been dispensed with although its activities will continue until approximately mid this year to finalise matters already in the pipe line. Likewise the regional hearing officer’s position has been dispensed with.

2. Any party aggrieved by a decision made by the labour relations officer or senior labour relations officer may appeal to the Tribunal direct which in terms of Statutory Instrument 30 of 1993 has similar powers to those conferred on it in terms of the now appealed Statutory Instrument 369/1985.

3. An appeal from the tribunal to the Supreme Court in terms of section 108 of the Labour Relations act is still allowed.

The Labour Relations (general conditions of employment) (termination of employment) Regulations 1985 (Statutory Instrument 371 of 1985) continue to be in force. Although the regulations are not clear it appears as if a determination will be made by a labour relations officer with an appeal direct to the tribunal. In other words it does not appear as if senior labour relations officers will be involved in termination matters unless labour relations officers feel they cannot handle it themselves and refer the matter to a senior labour relations officer for determination in terms of section 8(e) of the labour relations (settlement of disputes) regulations 1993.

Whilst dealing with termination of employment matters let me stress that the landmark decision arrived at in the case of Masiyiwa versus T M Supermarket 1990 (1) ZLR166 (SC) will not be affected in any way by the change to the Act or the Regulations. In this case the Supreme Court decided whether the labour relations officer or the tribunal has any discretion to vary the punishment imposed on an employee once a ground of suspension relied upon by the employers has been approved. The Supreme Court decided that neither a labour relations officer nor the tribunal has any discretion to impose a lesser punishment on the employee than the one imposed by the employer. In other words once labour relations officers or the Tribunal has found the employee guilty of the misconduct alleged they are obliged to serve a determination terminating the contract of employment and cannot substitute some lesser form of punishment.

There seems to be considerable confusion regarding this case and it appears as if employees, unions, lawyers representing employees and the tribunal itself are not aware of the full implications of this case. This week I argued a matter where the opposition lawyer sought a ruling from the tribunal lessening the punishment imposed. The sooner that everyone concerned realises that neither the labour relations officer nor the tribunal has any discretion to impose a lesser penalty the better.

A major concern I have regarding these termination disputes is that an enormous amount of money is wasted and the only people that are benefiting are the lawyers on both sides! Whilst undoubtedly the new appeal procedures will cut down on costs we are still faced with a 3 tier appeal procedure. In past years we have done precious little else on behalf of the Railways other than represent them in termination of employment disputes. In the vast majority of these cases employees have been guilty of serious misconduct. Union representatives have sought to argue that a lesser punishment should be imposed. Often unions have employed legal practitioners to argue in the same manner. None of these cases have come to the Supreme Court yet, but I am confident that if they do the Railways will be successful. But in the interim the Railways, the unions, the employees and the country suffers through indecision, unnecessary legal bills and uncertainty. The new 3 tier system will undoubtedly cut down on time and money but it is imperative that if the Railways is going to be a profitable organisation then some form of agreement must be reached with the unions that they will not unnecessarily pursue these actions.

Let me stress that I am not saying for one moment that employees should not vigorously appeal their case on the merits of the matter. By this I mean when the allegations levelled against the employee concerned are not clear or in dispute that is a different matter. Then morally speaking it is in everyone’s interests to have the issue fully aired. However where the facts are clear and misconduct is established showing that the employee is liable to summary suspension in terms of section 3 of the labour relations (general conditions of employment) (termination of employment) regulations 1985 then time and money should not be wasted by the unions in defending such employees.

Employment Codes of Conduct

I think that part of the reason why the unions and employees have sought to argue that the tribunal should impose lesser punishments is because there has often been no uniformity of punishment imposed by the Railways. I have argued many cases where union representatives and employees have placed evidence before the labour relations officer or the tribunal showing that different employees have received lesser punishments than termination. Whilst morally it seems only fair that there should be uniform punishments imposed on everyone, as the law stands at present the labour relations officer and the tribunal have no discretion to impose a lesser punishment. Once the misconduct is established then, as far as the law is concerned the termination of employment must follow. This lead me onto the second major change I wish to discuss introduced by Section 25 of the Labour Relations Amendment Act 1992 which introduces a new Section 117A(1) to the Labour Relations Act. In terms of this section an employment council or works council may apply to register an employment code of conduct that shall be binding in respect of a particular industry.

Section 117A(3) (c) interests me the most. It states that a code shall provide for penalties for any breach of the code, which may include oral or written warnings, fines or reductions in pay for a specified period, suspension with or without pay or on reduced pay, demotion and dismissal from employment. Whilst the National Railways of Zimbabwe has set-up various punishments which may be imposed it has not so far, as far as I am aware, to tie these punishments to various misdemeanours. The appropriate punishment is largely left to the discretion of the senior management person involved in making the decision. Inevitably this procedure does lead to instances where different penalties will be imposed fro the same offences. In my experience people who have done wrong are usually satisfied that the punishments imposed on them are fair if they know that everyone else has received the same medicine. Whilst I recognise that it is difficult to categorise all the different misdemeanours I believe that some effort should be made to tie penalties to particular breaches of an employment code within the National Railways of Zimbabwe. It goes without saying that the various penalties should be agreed to by both the management and the workers representatives. In this way I believe that many of the lengthy disputes regarding termination of employment can be resolved at an early stage. At the very least employees who have been dismissed will have to fight matters on their own without the assistance of the unions if the unions are satisfied that the employment code has been followed.

Prescription of Disputes

The third and final change to the act and regulations which I would like to discuss this afternoon concerns the introduction of a prescription period for disputes. In terms of section 110 of the act amended by section 24 of the labour relations amendment act no 12 of 1992 no labour relations officer shall entertain any dispute or unfair labour practice which has been referred to him after 180 days have elapsed from the date when the dispute or unfair labour practice first arose. This is a most welcome change to the act and both management and the unions need to take careful note of it.

It has come to my attention in two recent cases handled by us that management has waited up to six months after the misdemeanour occurred before suspending the employee and applying for his dismissal. This section will prevent the Railways from bringing such cases before the labour relations officer and the worker will have to be reinstated. Likewise it will prevent an employee from resurrecting an issue which happened a long time ago. It goes back to the principle mentioned earlier that justice delayed is justice denied. Any delay in bringing an employee before the labour relations officer is fundamentally unfair and the management will in future have to make an immediate decision whether or not to suspend an employee and apply for his dismissal in terms of the regulations.

Conclusion

In conclusion I would like to leave you with a few general comments. I spoke earlier about my belief that the legal framework of the resolution of dispute is still far too cumbersome and I would far prefer the Hong Kong system which I think benefits both employee and employer. However no matter what legal framework one has in place there is a more fundamental issue and to illustrate what it is I shall give you two examples. Firstly in Hong Kong I understand that they have very few cases which come before the equivalent of our labour relations officers. The reason for this is because it is a disgrace for a worker to have to argue his case before a labour relations officer. In other words if there are any allegations levelled against a worker that he has been lazy, negligent or incompetent workers generally consider it to be a disgrace and do not want to compound their disgrace by having their dirty linen aired before a public tribunal. Likewise Clem Sunter the South African economist and writer tells the story of his visit to Japan and in particular when he took the famous Bullett Train. The Bullett
train as you may know is renowned for its punctuality; in fact I understand that in Japan their Railway system as a whole is renowned for its punctuality. On the day that Clem Santa took the train there had been a typhoon which had disrupted the rail and as a result the Bullett train was late. When Clem Santa enquired about the delay the station manager did not seek to make any excuses; he did not blame the typhoon – instead he apologised profusely and said that the Japanese Railways were entirely responsible for the delay!

These two stories illustrate an ingredient missing in Zimbabwe. That ingredient is commitment to efficiency in service. That commitment must be displayed not only by the workers but also by management. The legal framework I have spoken about this afternoon should be seen by everyone working for the Railways as a last resort. All those working for Railways should take tremendous pride in the Railways and display that pride by showing commitment to efficiency and top rate service; then these regulations will become largely irrelevant. It goes without saying that as long as everyone relies on the legal framework as the main-stay of their rights the longterm economic viability of the Railways will be in jeopardy. The railways can only become a viable economic enterprise if ALL working for it and associated with it are committed to providing a first class service!

What Sort of Men Are We Preparing for Our Society?

By David Coltart

23^rd October 1992

Christian Brothers College: 31^st Annual Prize Giving

My Lord Bishop, ladies and gentlemen. It is a great honour 17 years after leaving CBC to be asked back to speak this evening. I have very fond memories CBC and have been encouraged by its growth over the last 12 years. Much of course has changed since 1975. At that time it was much smaller: there were only some 270 boys and the school went from Standard 3 to Upper Six.

The school played a major role in moulding my thinking and most of the principles I hold today were ingrained in those formative years. For example, at that time the school was one of the few multi-racial schools in the then Rhodesia and we as young boys had to grapple with the issue of racial intolerance and hatred unlike many of our white counterparts who were in Government white schools. I recall one incident in particular: a good friend in my class, Phillip Hendricks, was coloured and was one of the finest cricketers the school has ever produced. My class had a particularly strong cricket side; in 1974, 8 of the 11 Matabeleland players came from CBC and the bulk were from my class. However, Government schools refused to play us if Phillip was included in the team and I recall vividly when we as a school stood together and refused to play unless Phillip was included. In doing so we were taught to judge people not by the colour of their skin but by their talents and integrity.

Another abiding memory was the tremendous spirit of the school and our class in particular: the commitment to each other was superb. I think I can say without fear of contradiction that that spirit has continued amongst us over the years. It is shown in the fact that our class spawned a disproportionate number who are still in Zimbabwe when compared to other schools such as Milton, Falcon and the like. Of the 11 prefects in my final year, 7 are still in the country, 3 are in South Africa and 1 is in Britain. We keep in touch with each other regularly. It was the school which taught us the quality of commitment.

Another memory was the mix of rich and poor at the school. Most of the staff there were Brothers who lived on a pittance. The school also had a healthy mix of poor and wealthy boys. There were sons of doctors and there were sons of engine drivers. Flamboyant displays of wealth were frowned upon by the Brothers and we were taught to judge a person by his character, not the size of his parents’ bank balance. The Brothers taught us that it was better to be honest and poor than dishonest and rich. I believe that that teaching had a remarkable impact on the boys.

As we look forward to the next 17 years and the year 2010 I would like to ask a question of all of us: “What kind of young men are we producing in our private schools in Zimbabwe today?”: this question is addressed not just to teachers of our private schools but also the parents and the children going through private schools. My fear is that Zimbabwe is severely afflicted at present not just by drought but by fundamental moral decay. The soul of this Nation is in a bad way. Sadly I believe that the business sector, the professional sector and other sectors which form the backbone of the private schools in Zimbabwe are also to blame for the current state of the soul of the Nation. As we look to the future I would urge all of us to now consider the part that we are playing in moulding the future of this nation and its young people. In facing the tremendous crisis we face at present it is important to look back to see where we have gone wrong. Many of us spend our time blaming others for the woes of the Nation and it is high time that we consider the part that we all have played in bringing Zimbabwe to its present plight. We also need to consider how we can change our attitudes to ensure a brighter future for ourselves and our children.

Firstly consider the influence of corruption and general disrespect for the law in our society. Edmund Burke once said: “Corrupt influence, which is itself the perennial spring of all prodigality, and of all disorder, which loads us, more than millions of debt, which takes away vigour from our arms, wisdom from our councils, and every shadow of authority and credit from the most venerable parts of our constitution.” Corruption ultimately destroys the fabric of any society.

I am aware that many of those that send children to private schools have adopted the attitude that Government is corrupt and all pervasive and the only way they can survive is by participating in corrupt activities. Very few people in our society are scrupulously honest regarding the payment of taxes. Non-payment of taxes and wheeler-dealing are considered almost legitimate means of getting on with life in Zimbabwe. Whilst I am the first to understand why so many in our society have adopted this attitude, my concern is that we are inculcating these attitudes in the minds of our children. Many of our children going through our schools are taught by their parents that the tax system is so iniquitous that it should be beaten at all costs: they are taught that because others are corrupt, corrupt activities are the only way of doing business. To put it another way, the end is all that matters not the means.

I have just returned from a business trip to Canada, the United States and Britain. Whilst corruption is alive and well in those countries the difference between the business communities there and here is that corruption and tax evasion are still unacceptable practices as far as the vast majority of people are concerned in those countries. The world is getting smaller and it is becoming a global village. Are we raising young men who will go into this global village with different standards to those practised in the vibrant economies of the world? What sort of young men are we raising?

Another characteristic of our society which is afflicting us at present is what I would term negative thinking and the lack of courage displayed by our society. Of course, there is much to be negative about and much to fear in our Nation. I am reminded of Churchill, who when told that one of his opposing politicians was a modest man responded that that person had “much to be modest about.” We certainly have much to be negative about. But once again what I fear is that we are ingraining these characteristics in our children. I guarantee that 95% of you here tonight have openly whinged about corruption in Government, lack of action regarding the water situation and other issues in front of your children. I am prepared to bet that most of us have spent little energy in actually trying to do something about the problems.

A challenge for us is to ensure that we come through these dark times stronger. In this we must draw on the wisdom of the ages. Let me give you a few examples. The Chinese used the same word to describe both problem and opportunity. In other words a problem can also be an opportunity. President Roosevelt once said in the context of dealing on the Stock Exchange, “When blood is running in the streets: buy!” The book of James in the Bible contains the statement that we should “rejoice in our trials” because they “develop perseverance.” Perhaps, however, the most apt quotation this evening comes from Virgil who wrote “Blessings on your young courage, boy: that’s the way to the stars.” Are we encouraging our young men to face up to the problems of our society, or are we encouraging them to run away?” One thing that I learnt from my recent trip is that the entire world has its problems, albeit different to the different problems we are facing in Zimbabwe, but nevertheless severe. Eric Bloch, I understand, spoke at Falcon’s speech day and encouraged us all to be more positive in our outlook. I agree with him; whilst the problems are immense and the challenges great, we do need to recognise that the trials we are facing can present us with tremendous opportunities in the future. I fear that we are encouraging our life blood, that is our children, to leave the country and that can only lead to the eventual destruction of this country as we know it today. We adults need to be more positive and more courageous.

A third affliction that Zimbabwe is enduring at present is greed in society and the spread of materialism. In the 1960s Martin Luther King said “We are prone to judge success by the index of our salaries or the size of our automobiles, rather than by the quality of our service and relationship to humanity.”  I fear that a direct result of the spread of corruption and disrespect for the law will be that our young people will be encouraged to focus on the end regardless of the means. The end is the good life; to have to good disposable income. How we obtain that good life is immaterial both in terms of our ethics and how we treat other people affected by our activities along the way. What kind of young men are we producing in Zimbabwe today? Thomas Eddison once said “Genius is one percent inspiration and ninety-nine percent perspiration.” Are we as parents and teachers conveying that to our children? Teaching the principle that there is more to life than simply making money; that if we do aim to make money that it must not be at any cost; that the best way of making money is by working as hard and diligently as one possibly can rather than by taking shortcuts. Until we do so I fear that we will breed a generation of children driven by materialism and greed.

In conclusion, there is no need for me to recount the challenges that Zimbabwe is facing at present. The problems facing all of us are only too evident. I believe however that until we all recognise that we too have contributed to these problems we will not be in a position to tackle them effectively. I fear that many families and young people graduating from school are thinking of leaving Zimbabwe. Many other countries appear to be extremely attractive when compared to Zimbabwe at present. However, having just been to four industrialised nations I am fully aware of the major problems that they face. As I said earlier, the world is rapidly becoming a global village and there is only so far we can all run away from problems.

We need to be reminded of the words of Martin Luther King: “As long as there is poverty in the world I can never be rich, even if I have a billion dollars. I can never be what I ought to be until you are what you ought to be. This is the way our world is made. No individual or nation can stand out boasting of being independent. Rather let us face up to our problems.” I firmly believe that if we decide that we are going to tackle corruption at home, if we decide that we are going to stand up for justice and integrity and if we decide that we are going to work diligently bearing in mind the conditions of others, that can be our, in Virgil’s words, “way to the stars.” This country can still be God’s own. It is rich in human and natural resources. With rains, a change in our attitudes and with a transition to democracy we can still make the Nation great.

To the boys here tonight who are writing their ‘A’ levels and ‘O’ levels and thinking of moving on to greener pastures I would like to leave you with a challenge. Are you going to face up to the major challenges this Nation presents you with? I would encourage you to do so. I believe that if you persevere through the trials we are facing you will be so much the stronger and better for it.

Likewise, there is a challenge to us as parents and teachers. Are we training our young men and women to respect the law, to act with integrity and honesty? Are we encouraging our young people to stand up boldly for what they believe in and thus make an impact on society? If not I believe that now is the time, more than ever before, for us to set an example as the Christian Brothers who taught me some 17 years ago. May their legacy continue into the 21^st Century and beyond, and may Christian Brothers College continue to go from strength to strength.

Zimbabwe: The establishment of independent and public enquiries

By David Coltart

Elimination and Terror: International Conference on Political Killings and ‘Disappearances’ organised by Amnesty International

4-6 September 1992

In the period since 1982 Zimbabwe has been the scene of some of the worst political killings and “disappearances” in Africa. Whilst the situation has undoubtedly improved since 1987, when the two opposing political factions of ZANU PF and ZAPU reconciled their differences under duress, very few of the perpetrators have been held accountable for their actions. This paper will concentrate on agenda topics 5 and 6, namely the crucial role impunity plays as a key factor why political killings and “disappearances” continue, and means of strengthening civilian judiciaries and legal systems.

TYPES OF POLITICAL KILLINGS AND DISAPPEARANCES IN ZIMBABWE SINCE 1982

There are four broad types of political killings and “disappearances” which have occurred in Zimbabwe since 1982 which are as follows:

1. Mass killings of civilians by the Army

In the first three months of 1983, in the Matabeleland region of Zimbabwe, hundreds, possibly thousands, of civilians, including women and children, were killed by soldiers of the Fifth Brigade of the Zimbabwe National Army. Estimates range from several hundred to as many as 10,000 people. A very conservative estimate is 1500[1]. Whilst the intensity of the killing waned after March 1983, sporadic killings of civilians by members of the Zimbabwe National Army continued in the Matabeleland region until the end of 1987.

2. Sporadic killings of civilians by political dissidents

Between July 1982 and December 1987 ex combatants loyal to Mr Joshua Nkomo’s opposition ZAPU party committed sporadic assassinations of civilians in the Matabeleland and Midland regions of Zimbabwe culminating in the massacre of 14 missionaries (including women and children) just south of Bulawayo in November 1987. Since the signing of the “Unity Accord” between President Mugabe’s ZANU PF and Joshua Nkomo’s ZAPU there have been no further killings of this nature.

3. Election related political killings

Both Zimbabwe’s post-independence parliamentary elections held in 1985 and 1990 have been characterised by violent political killings almost entirely at the hands of the ruling ZANU PF party and its supporters. Both in the run up to and in the aftermath of the 1985 elections opposition ZAPU functionaries and their relatives were murdered by ZANU PF supporters and Special Police Constabulary. The 1990 elections saw the ruling ZANU PF placing campaign advertisements in the Government-controlled television service with slogans such as “AIDS kills, so does ZUM – vote ZANU PF” (ZUM being the principal opposition party). The 1990 election also saw the attempted assassination of the Deputy leader of ZUM, Mr Patrick Kombayi, who was ambushed and shot several times by members of the Central Intelligence Organisation and the Police.

4. Sporadic suspected political killings and attempted political killings

In the last few years, there have been at least three suspected political killings of opposition politicians[2].

IMPUNITY OF OFFENDERS

Save for political dissidents who were captured and convicted of murder, all those responsible for the abovementioned political killings and “disappearances” have not been held accountable for their actions. For example:

1. A special commission of enquiry to investigate allegations of atrocities committed by the Fifth Brigade was held between January and March 1984. Despite statements made by Sydney Sekeremayi, then Minister of State (Defence), in late 1983 that the Commission’s findings would be made public, the findings have never been made public. In the last few months mass graves have been discovered in Matabeleland and bodies have been found dumped down mine shafts. Coins and other personal items found with the bodies have established that the bodies were dumped during the time of the Fifth Brigade’s activities. Government had done everything in its power to stifle further investigations; for example, a local television documentary called “Outreach” which investigated the issue was prevented from being shown on national television on 3 July 1992.
2. Government at times has announced wide ranging amnesties exonerating all those responsible for the killings. On occasions the President has pardoned individual members of the security forces; for example Robert Masikini of the CIO was released a few days after being sentenced to death in 1989 by the High Court for murdering a political detainee just outside Bulawayo.
3. There has been a distinct lack of enthusiasm in the investigation of certain political killings and attempted political killings. For example Patrick Kombayi was shot several times in broad daylight in Gweru in 1990. It has taken two years for the docket to come to court. When the docket came it was not complete and it took the bravery and energy of the Public Prosecutor to complete the docket. The docket has now been recalled by the Attorney-General’s Office. It is suspected that the trial will be far too politically sensitive for it to go ahead. Likewise the recent death of Christopher Giwa in June 1992 (see footnote 2 above) was reported in a very matter-of-fact way as if there was nothing suspicious in the fact that he died when his vehicle drove into the back of an unlit stationary army vehicle left in the middle of a main road at night. Thus far at least the police have shown no enthusiasm to investigate whether Mr Giwa’s death was politically motivated.

The greatest danger of the current situation is that Government, from the President down to individual security officers, have acted with impunity and with no threat of sanctions there is every chance that the political killings experienced in the last 10 years will continue in the future. Even more worrying is the fact that the intensity of the political killings and disappearances in Zimbabwe has usually been in direct proportion to the threat to Government’s hold on power. The history of post-independence Zimbabwe has shown that when the ZANU PF government feels it has a firm grip on power the level of violence diminishes; likewise when its power is threatened violence increases. As recently as Sunday 28 June 1992 President Mugabe was reported in the Sunday Mail as urging “party members to be prepared to meet violence with violence”. He also warned: “Don’t dare to talk about the armed struggle because we fight better”. These statements have to be seen in the context of opposition groups pleading for peaceful democratic change. With ZANU PF’s popularity waning by the month there must be a very real danger that the number of political killings and “disappearances” will increase especially in the run up to the 1995 elections. It is thus a matter of urgency that consideration be given to make Government responsible so that the perpetrators are brought to justice. One of the most vital components in bringing people to justice is the establishment of independent public enquiries. What needs to be done in Zimbabwe before the independent and public enquiries can make human rights violation as accountable for their actions? There are two broad problems in this regard: (1) the problem of getting sufficient evidence together to place before an independent enquiry; and (2) the problem of ensuring that the enquiry is not simply an end in itself.

ANALYSIS OF FACTORS HAMPERING INDEPENDENT AND PUBLIC ENQUIRIES

1. Media

The Zimbabwean Government has literally been able to get away with murder because the internal media has not had the ability to expose fully what has actually gone on in the country. Indeed in many respects people outside the country are better informed about the details of the Fifth Brigade atrocities and other political killings. The 1984 Commission of Enquiry into the Fifth Brigade activities has never been published. Recently press freedom has loosened up and at least one monthly magazine has resuscitated the investigation itself. The July 1992 edition of Horizon Magazine details incidents which occurred in the Tsholotsho region of Matabeleland. Had magazines such as these been operation at the time when the atrocities took place no doubt there would have been internal exposure of what was happening and more pressure on Government not only to investigate but to act on the results of the enquiry.

However the Government still controls the entire electronic media and all the daily newspapers. They have other means to curtail the activities of independent monthlies and weeklies. The danger is always there that Government will once again crack down on independent newspapers.

Recommendations

(a)    Local newspapers and magazines need to be supported through external funds and international protests when attempts are made to close them down either directly or indirectly.

(b)   International human rights groups should make every effort to ensure that incidents such as the Fifth Brigade activities in Matabeleland are not allowed simply to be forgotten.

(c)    Continued pressure should be brought through the international press media to keep the focus on atrocities like these until the perpetrators are brought to book.

(d)   A variety of other measures can be employed and more support needs to be given to supporting films such as “The Killing Fields” to portray, dramatically, events which have occurred; such pressure should be kept up with the specific goal of coercing Government to establish independent public enquiries into such incidents.

2. Amnesties

Whilst the amnesty declared by the Zimbabwean Government in 1988 was no doubt a sensible move to bring dissident problems to a speedy conclusion it has meant that the atrocities committed by both sides during those years have not been fully investigated. The amnesty was a necessary evil, the price to pay for bringing an end to the carnage and it was right that the culprits should not face criminal charges if that was what was necessary to prevent any further lives being lost. However the amnesty was of such wide application that people who committed the most horrendous acts have subsequently been promoted and now hold high office in the Zimbabwean security forces. The danger is that because they acted with impunity in the past they could feel that they could act with impunity in future.

A further problem is that the President of Zimbabwe pardoned certain individuals who did not fall in terms of the amnesty. For example Robert Masikini, a member of the Central Intelligence Organisation referred to above, was released just days after he had been convicted of murder and sentenced to death. This ad hoc application of the amnesty seriously undermined the courts and respect for the rule of law. The President, in pardoning Masekini after the trial had been concluded, effectively undermined respect for the court and respect for the general principle of independent and public enquiries into human rights violations. People should be encouraged to fear the sting of an independent public enquiry; if human rights violators know that they can go through an enquiry only to be pardoned, and thereafter promoted, much of the impact of the enquiry will be lost.

Recommendations

(a)    General amnesties should only be declared where absolutely necessary; for example where an amnesty is one of the only ways of brining civil conflict to an end then it should be considered.

(b)   However, where general amnesties are announced it is suggested that they should apply only to criminal prosecutions and should not prevent public enquiries taking place; perpetrators of human rights violations need to feel the stigma attached to their conduct even if they do not face criminal sanctions; likewise Government employees responsible for human rights violations should face some sanctions on their careers; in other words Government employees whose criminal activities are exposed in public enquiries should be dismissed or refused promotion.

(c)    Government should be discouraged from pardoning human rights violators after they have been convicted by the criminal justice system.

3. Police Investigations

One of the fundamental reasons why there have been very few prosecutions in Zimbabwe of human rights violators has been because the police either do not have the will themselves to investigate human rights violations or their investigations are interfered with by politicians. Both these hindrances have blighted the investigation of the Patrick Kombayi case referred to above. The police were very reluctant to investigate their colleagues. Eventually it was left to a public prosecutor (a lawyer) from a separate ministry to flesh out the docket. Had it not been for the drive and energy of this one man the case would have been stillborn. Notwithstanding the man’s drive and energy, when the matter was due to come before the High Court at Bulawayo in June this year, suddenly the docket was recalled by the Attorney-General and Minister of Home Affairs for “further investigation”. Court officials in Bulawayo suspect that because the case could involve Vice-President Muzenda, Government is using all means within its disposal to prevent the case from coming to court.

Likewise the deaths, following suspicious road traffic accidents, of Amos Dlamini, Mr Christopher Giwa and others have not resulted in any serious police investigations. They have all been treated as routine road traffic accidents without any special investigations being undertaken. The situation has been compounded by the fact that there is little tradition of respect for human rights within the Zimbabwean police. The vast majority of the police were either trained in the colonial era (and spent much of their time in paramilitary units) or ex combatants. Violence for many of them is second nature; in the Zimbabwean context they know that Government came to power through the barrel of a gun and presumably they are not surprised or concerned when Government tries to hold on to power through the barrel of a gun.

It goes without saying that the independent and public enquiries in the form of criminal proceedings will not even get off the ground without an independent, motivated and professional police force.

Recommendations

(a)    In Zimbabwe the Legal Resources Foundation has since 1989 conducted Law Enforcement Agencies lecture programmes on human rights. These programmes have been designed to re-educate police officers regarding international standards of justice and respect for human rights. In these courses police officers are not only encouraged to investigate matters in an impartial fashion by they are also designed to encourage police to resist political interference in their investigations. The courses need to be continued and strengthened to encourage the police to investigate political killings and “disappearances”.

(b)   Even if a criminal matter is sub judice the press can maintain pressure on the police to investigate fully the matter. If the police are regularly questioned by the media as to how their investigations are progressing or whether investigations have been commenced at all there is more likelihood of an enquiry taking place. Towards the end of 1988 a local newspaper in Zimbabwe exposed a corruption scandal; whilst the example is obviously not directly relevant to political killings the fact is that criminal convictions resulted from the corruption scandal because the press did not let go of the issue. Regrettably the press has not pursued many issues in Zimbabwe concerning political killings and disappearances and as a result there has never been sufficient pressure on the police to start investigations or to bring their investigations to a conclusion. The local and international press need to keep pressure on the police to ensure that political killings are properly investigated.

4. Ombudsman

Most of the political killings and disappearances in Zimbabwe have been perpetrated by members of the army, Central Intelligence Organisation and police. Regrettably in Zimbabwe the Ombudsman is specifically excluded from investigating any complaint involving these three arms of Government. As indicated above it is sometimes very difficult for the police to investigate their own members even with the best will in the world. Family and friends of the victims of political killings and disappearances often lack courage, the necessary stature in society and finance to mount their own investigations. The Office of the Ombudsman is used very effectively in the investigation of relatively uncontroversial matters. If the Office of the Ombudsman was strengthened and the Ombudsman’s powers extended there is no doubt that another channel of independent and public enquiry would be opened up.

Recommendations

(a)    Ombudsmen should be allowed to investigate complaints against the police, Central Intelligence Organisation and the army.

(b)   Further international pressure should be brought to bear on Governments throughout the world to give further powers to quasi government investigatory bodies such as Ombudsmen and human rights commissions.

5. Legal Profession

Legal practitioners need to be more innovative in exposing and investigating political killings and “disappearances”. In Zimbabwe lawyers have been adept in using the civil court procedure to expose matters which should have been exposed, but have not been, in the criminal courts. For example lawyers acting for the Catholic Commission for Justice and Peace in Zimbabwe have petitioned the courts for orders presuming the death of people. The petitions contained detailed information regarding the persons killed and those responsible for the killings. The petitions then become matters of public record. Once orders have been handed down relatives can sue the individual perpetrators and Government for loss of support claims.

I am handling two such cases at present: for example Fraser Gibson Sibanda, a man in his 60s, was arrested by the police during a Sunday morning church service in November 1985. He was never seen again by his wife and children. Because his wife was never able to establish whether her husband was dead she could never sue anyone for damages for loss of support. In the Sibanda case affidavits were obtained from all those who witnessed his arrest (and some who were in detention with him). Once those affidavits became part of the court record it was very difficult for the police to rebut the evidence and they actually chose to remain silent. They did not have any other option; they could not deny the arrest and yet they could acknowledge liability. Proceedings are now being instituted on behold of Mrs Sibanda to claim fairly substantial damages against the Government. Regrettably in this case we did not have the names of the individual police officers responsible for the arrest. In other cases I have handled (related to detentions, not killings) I have cited police officers in their individual capacities and have sought to recover damages from them individually. If the same could be done in a killing or “disappearance” case it would obviously increase the deterrent effect of these civil actions by government employees concerned.

Recommendations

Lawyers in private practice and those working for human rights organisations should be encouraged to institute civil actions wherever possible to expose the conduct of government agents where those agents are reluctant to investigate and prosecute criminal charges.

6. Non-Governmental Organisations

One of the main reasons why the Fifth Brigade was able to conduct a reign of terror for so long and with impunity was because the people in the rural areas of Matabeleland has at the time very few structures through which they could channel reports of human rights violations. It is because of this as well that there has been so little public exposure of what happened from 1983 until the present time. The Catholic Church and its Catholic Commission for Justice and Peace were the only organisations to report effectively at the time and which have done their best to keep what happened in the public eye. If public enquiries are to take place in future it is important that religious and human rights groups establish structures or reporting mechanisms in remote areas so that any future atrocities can be responded to immediately. In this regard the Legal Resources Foundation is in the process of establishing legal advice centres throughout the rural areas of Zimbabwe. In Matabeleland three rural advice centres have been established to date and another two will be opened within the next six months. These advice centres are staffed by full-time paralegals who are trained to identify human rights abuses and to channel information back to the cities. In this way it is hoped that should any further human rights abuses take place similar to those which occurred in 1983, human rights organisations may be able to react much quicker with far more accurate information.

Recommendations

Support should be given to human rights organisations which are involved in setting up structures in remote areas which promote the efficient and affective flow of information from the remote areas to the cities and the media.

7. Individual Responsibility

At a press conference held in Harare on 1 July 1992 President Mugabe, speaking about President de Klerk’s responsibility for the Boipatong massacre in South Africa, said the following: “President de Klerk must have known to what use they (that is the Buffalo and Koevoet battalions of the South African Army) would be put when they were deployed to that region”. Unwittingly President Mugabe may have in that statement given weight to Lyal S Sunga’s argument contained in his recent book “Individual Responsibility in the International Law for Serious Human Rights Violations”.[3] He argues that there is an emerging general rule in international law which can be stated as follows:

“Any person who commits, or is an accomplice in any act amounting to serious human rights violations in international law shall be responsible and therefore liable to punishment, notwithstanding that the act committed is not a crime under domestic law, notwithstanding that the official was a head of state or public official, or that he or she acted pursuant to an order of his or her government or to an order of the superior.”

A serious human rights violation in international law means any violation of human rights for which international law stipulates individual responsibility, including the following acts: war crimes, grave breaches “as defined in the 1949 Geneva Convention, genocide, torture, inhuman or degrading punishment and slavery”. In my view as long as Heads of Government and cabinets are allowed to get away with gross violations of human rights, such as what happened in Matabeleland in 1983, effective independent and public enquiries will never be able to be convened. This is particularly so in Zimbabwe where the course of time has shown that President Mugabe at the very least condoned what was going on in Matabeleland and possibly initiated and directed the operation, albeit from a distance.

Consider the following:

1. The January 1992 edition of the Zimbabwe Defence Forces magazine celebrates the 10^th anniversary of the setting up of the Fifth Brigade. It reveals that the Fifth Brigade was first mooted by then Prime Minister Mugabe in a 1980 trip to North Korea. Thereafter the unit was set up specifically to quell the internal dissent and North Korean instructors were purposely brought in to train the soldiers in effective methods of quelling internal dissent. At the end of 1982 then Prime Minister Mugabe was present at the passing out ceremony of the Fifth Brigade just weeks before they were deployed. At the passing out ceremony the defence force magazine recounts that Prime Minister Mugabe spoke to soldiers, spelt out their duties and handed over the brigade flag inscribed “Gukurahundi” (Shona word describing the whirlwind which precedes spring rains).[4]
2. The Fifth Brigade were deployed into Matabeleland in 1983. In a speech to a rural Ndebele audience near Nkayi in Matabeleland in April 1983 Prime Minister Mugabe articulated Government strategy by saying:

“Where men and women provide food for the dissident, when we get there we eradicate them. We don’t differentiate when we find, because we can’t tell who is a dissident and who is not.”[5]

1. On July 10 1983 in the Tsholotsho district, north of Bulawayo, a band of about 15 Fifth Brigades, identifiable by their uniforms and red berets, descended on a village on the Silongwe Line in Tsholotsho. They herded some two dozen people into a thatched roof hut and set it on fire. 21 people were burned alive, including 9 women and 6 children.[6]
2. Given these facts and these statements it is no wonder that the results of the Commission of Enquiry into the 1983 atrocities have been kept quiet. The Fifth Brigade was Prime Minister Mugabe’s brainchild, was sent into the area with his specific blessing and mandate and even while it was there, he, as Head of State, supported their strategy.
3. Ironically President Mugabe himself in last week’s press conference has acknowledged the responsibility that leaders have for the actions of their subordinates. If President de Klerk must have known what his Buffalo Battalion would do in South Africa and be held accountable for their actions likewise President Mugabe needs to be held accountable for the actions of the Fifth Brigade in 1983. Indeed if anything President Mugabe is more culpable; President de Klerk has at least denied responsibility and called for peace whereas the then Prime Minister Mugabe ratified the conduct of Fifth Brigade and even today persists in using inflammatory language (as indicated above in the statement of President Mugabe as reported in the Sunday Mail on 26 June 1992).

Undoubtedly the majority of the mass political killings throughout the world are the result of executive orders. Ad hoc political killings can be blamed on over-zealous individual policemen and soldiers. Sustained mass political killings and “disappearances” very rarely happen without, at the very least, tacit approval of the Head of State. As long a public enquiries fail to identify and prosecute the initiators of such actions, the real culprits will get away with impunity. It is obviously very difficult to encourage the setting up of enquiries that will trace the blame to the Head of State. It is only international collective action that can make this a reality.

Recommendations

(a)    Where Heads of State are linked to political killings and “disappearances” they should be treated as pariahs on all international trips. Pressure should be brought to bear on host governments not to host such leaders. International organisations, such as the Commonwealth Secretariat and the United Nations, should be lobbied by international human rights groups to investigate and censure such leaders.

(b)   Consideration should be given to setting up international commissions of enquiry to investigate specifically the responsibility of governments and Heads of State for political killings and “disappearances”.

(c)    Related to “b” above, work must progress towards codifying a general rule stipulating individual responsibility of serious human rights violations. In particular urgent attention needs to be given to the implementation of the International Law Commission’s Code of crimes against the peace and security of mankind.[7]

CONCLUSION

From the above it will be apparent that independent and public enquiries can only come about in the first place if allegations of political killings and “disappearances” are brought forward by the media, the police, the legal profession and non-Governmental organisations. Zimbabwe has been blessed with an independent judiciary and accordingly has the necessary structures in place to conduct independent and public enquiries. However, much remains uncovered because of the weaknesses of the organisations and institutions mentioned above. No matter how strong, fearless and independent a nation’s judges are, they are powerless unless cases are brought to their attention. Likewise even if independent and public enquiries take place, if the Head of State or Government is allowed to negate the recommendations and effect of the enquiries, the perpetrators of political killings will know that they can act with impunity in future. It is thus fundamental that if independent and public enquiries are to be effective any interference by Heads of State or Government must be severely criticised and sanctioned by the international community. As has been stated above very often the root of the problem is the Head of State or Government itself and until the international community develops ways to punish the authors of political killings and “disappearances”, those political killings and “disappearances” will continue.

SUMMARY

Some of the worst political killings and disappearances in the last ten years in Africa have taken place in Zimbabwe, especially in the mid-1980s. These have included mass killings of civilians by the Army, sporadic killings of civilians by political dissidents, election related political killings and sporadic political assassinations.

Very few of those responsible for the political killings and “disappearances” have been held accountable for their actions. A Commission of Enquiry held in 1984 has never had its results published. Wide-ranging amnesties have exonerated those responsible for the killings and ad hoc Presidential pardons have exonerated certain individuals. The problem has been compounded by a reluctance by the police to investigate and prosecute political killings and “disappearances”. The entire situation is further aggravated by the fact that the Government itself has been responsible for instigating and exacerbating incidents of political killings and “disappearances”. In this environment it is difficult to launch enquiries and to make them effective.

Recommendations:

1. The media needs to be strengthened and encouraged to investigate and report on political killings and “disappearances”.
2. Government announced amnesties should only be declared where absolutely necessary and should be restricted to exonerated perpetrators from criminal charges alone.
3. Programmes must be implemented to encourage police officers to investigate and prosecute political killings and “disappearances”.
4. Powers of Ombudsmen and other quasi-Government investigatory bodies should be strengthened.
5. Lawyers should be encouraged to be innovative in their methods designed to expose political killings and “disappearances”.
6. Non-Governmental Organisations need to be encouraged to set up structures and reporting mechanisms in remote areas to enable the speedy and effective reporting of human rights violations.
7. International organisations, the United Nations in particular, need to consider and implement the draft report of the International Law Commission entitled “Draft Code of Crimes against the Peace and Security of Mankind”.
8. It must be recognised that often the root of the problem of political killings and “disappearances” is Heads of State themselves and Government. Until means are developed to sanction Heads of State and Governments which commit or allow political killings and “disappearances”, these political killings and “disappearances” will continue.

[2] Christopher Giwa was, at the time of his death, the Secretary for Youth Affairs of the recently formed Forum for Democratic Reform. In the weeks before his death he had received various threats. On the night he died he was driving back to Harare on the main Mutare/Harare Road on his own in a passenger vehicle. According to the police, his vehicle rammed into the back of a stationery army vehicle which had been left in the middle of the main road without its lights on. There are two further puzzling aspects regarding the accident: firstly the huge army vehicle ended up upside down having been hit by a light passenger vehicle and, secondly, Giwa’s face was unmarked. Some of his family and members of the Forum for Democratic Reform feel that he was assassinated. To date there has been no detailed police investigation into his death. In 1991 two members of a Bulawayo based political group the Open Forum, Amos Dlamini and Mr Ncube, were killed in equally suspicious circumstances. Once again the police investigation into their deaths was minimal.

[3] Individual Responsibility in International Law for Serious Human Rights Violations by Lyal S Sunga: published by Martinus Nijhoff 1992.

[4] Zimbabwe Defence Forces magazine, Vol 7 No. 1 at pages 33 to 37.

[5] Lawyer’s committee for human rights: Wages of War page 38

[6] Lawyer’s committee for human rights: Wages of War page 38

[7] Lyal S Sunga page 169.

Lecture given to the Bulawayo Presbyterian Church

The first response most people have when the relationship between the Church and politics is discussed is to cry that the Church should steer clear of politics; “Religion and politics do not mix” and “it is wrong for an Evangelical Church to have any involvement in politics.” Tonight I would like to question this knee-jerk reaction. Thereafter I would like to examine the role of the Church and individual Christians in politics in Zimbabwe at present.

Definition of Politics
There is a need to define the word “politics”. The words politics and political may be given either a broad or a narrow definition. Broadly speaking politics denotes the life of the city and the responsibilities of its citizens. It is concerned therefore with the whole of our life in human society. Politics is the art of living together in a community. According to its narrow definition, however, politics is the science of government. It is concerned with the development and adoption of specific policies with a view to their being enshrined in legislation.

Bearing in mind these broad and narrow definitions at the outset we need to consider whether Jesus was involved in politics. In the latter and narrower sense he clearly was not. Jesus was never a member of a political party, never formed a political party, never adopted a political programme or organised a political protest. Much to the disgust of many Jews he advised them to render unto Caesar what was his. However in the other and broader sense of the word his whole ministry was political. The Kingdom of God he proclaimed and inaugurated was a radically new and different social dispensation whose values and standards challenged what was held dear by the existing regime. He challenged the status quo and provided an alternative to it. Indeed his very ministry was perceived as a challenge to Caesar and to the existing order and he was therefore accused of sedition.

The point I wish to stress is that Jesus, whilst not being a member of any political party nevertheless stood up boldly for God’s standards of justice. In doing so he suffered. Jesus always knew that what he proclaimed would deeply upset the religious and political leaders of the time. Shortly before his betrayal when he prayed on the Mount of Olive he said:
“Father if you are willing take this cup from me”. (Luke 22:42).

From the passage we can assume that (a) Jesus knew the trial that awaited him and (b) hoped that God the Father might provide an easier route to achieve His purposes. Jesus however did not falter and was prepared to speak boldly when he was later arrested and appeared before the Council of Elders, Chief Priests and teachers and Pilate. Likewise in Acts 7 we read how Steven stood up to the High Priest in the Sanhedrin.
“You stiff-necked people, with uncircumcised hearts … was there ever a Profet your Fathers did not persecute? They even killed those who predicted the coming of the righteous one and now you have betrayed and murdered him – you have received the law that put into effect through angels but have not obeyed it”

Steven was standing up for what he believed and he suffered the ultimate penalty for that belief. The New Testament is full of examples of men and women standing up for their faith against the political and religious hierarchy.

The early Church was also filled with extreme stubborn and inflexible Christians. Listen to what Pliny had to say about Christians in approximately AD98 :
“I have asked them whether they were Christians. Those who confess I have questioned again and a third time, having threatened them with punishment. Those who persisted I have ordered to be led off to execution. I did not at all doubt, whatever it was what they confessed, that their obstinacy and inflexible stubbornness ought certainly to be punished.”

There are of course more recent examples of Christians standing up to the existing political order. Wilberforce fought a long and hard battle to bring about the abolition of slavery in Britain and finally succeeded. Likewise Dietrich Bonhoeffer almost single handily stood up to Hitler and the Nazi regime. He ultimately was executed for his beliefs.

Clearly there are many Biblical and historical precedents which show that Christian individuals and groups may, and indeed must, get involved in political thought and action. But should the Church itself as the Church get involved in politics? Martin Lloyd Jones when preaching on Ephesians 5 had this to say:
“If I want to help the State, this is my way: Try to fill the State with Christian believers, new men and women in Christ Jesus. That is the way to help the State. I say that everything else is the business of the State, it is the sphere of the State, appointed by God to do different work. But the two tasks, as we must see, are very different. At the same time, I agree that Christian men and women should play their part in the State. Then Christian men and women become members of Councils, let them go into Parliament, let them do everything they can to influence the enactments of the State.

Wilberforce and Shaftesbury in the l9th Century set an example to others. It is not Ministers occupying pulpits who should be preaching political sermons. Let them preach the gospel to the Wilberforces and the Shaftesburys, to encourage them, to build them up in the faith, to give them confidence, then those who are called to such a work can go into Parliament, to speak and act and to organise movements. It is the laymen who are to do this, not the Church!”

I agree with Martin Lloyd Jones that it is not the role of the Church as a body to get involved in politics or to support a particular political party as a Church. However when the Church concludes that Biblical faith or righteousness requires it to take a public stand on some issue then it must obey God’s word and trust him with the consequences. By this I mean an individual issue such as immorality, bribery and corruption the Church has a duty to make a stand to proclaim God’s standards of justice and morality.

The concern I have however is that in Zimbabwe and indeed in the Evangelical Church throughout the world there seems to be a reluctance for individual Christians to get involved in politics and a reluctance for the Church to make bold stands on God’s standards of justice and morality John Stott, in his book “Issues Facing Christians Today” says that the reason is because the evangelicals are irresponsible escapists. Listen to what he says:
“Fellowship with each other in the Church is more congenial than service in an apathetic and even hostile environment outside”

He sounds as if he is writing precisely for the Church in Zimbabwe! He asks the question why Christians are escapists and in answering that question looks at five great doctrines of the Bible which he says Evangelicals have tended to cut and trim in order to make them fit our “escapology”. I do not have time tonight to go into them in great detail and would urge you to read the book written by John Stott. In summary however John Stott says the following:

l. Full doctrine of God
As Christians we often tend to think of God as the God of our Religion, the God of “our” Covenant and the God of justification. In other words as we get wrapped up in our relationship with God we see him primarily as a God who is only interested in us, not in the broader community. God however is the God of justice as well as of justification. Whilst he is the God of justification, the saviour of sinners, the
“compassionate and gracious God, slow to anger, abounding in love and faithfulness”
(Exodus 34:6)
He is also concerned that our community life be characterised by justice. In Psalm l46:7 – 9 we read:
“He upholds the cause of the oppressed and gives food to the hungry. The Lord sets prisoners free, the Lord gives sight to the blind, the Lord lifts up those who are bowed down, the Lord loves the righteous. The Lord watches over the aliens and sustains the fatherless and widows, but he frustrates the ways of the wicked.”

In Isaiah 58 we read that the true fast does not consist of our fancy religious ceremonies but in loosening the chains of injustice setting the oppressed free, sharing our food with the hungry and providing the poor wanderer with shelter.

It is also clear from scripture that God hates injustice and oppression everywhere and that he loves and promotes justice everywhere. We as Christians often forget that the Lord has actually commanded us to seek justice. In Zechariah 7:9 we read:
“This is what the Lord almighty says:
“Administer true justice, show mercy and compassion to one another. Do not oppress the widow or the fatherless, the alien or the poor”
Those are commands and the Bible is full of them.

Until we as Christians recognise the fuller doctrine of God and his commands we will not have a burning desire to seek justice in our land.

2. The fuller doctrine of man
As evangelical Christians we are often guilty of having a faulty view of the worth of human beings. We are often guilty of seeing individuals simply as souls who need to be saved. We are all guilty of seeing people simply as numbers; people who need to be saved, branded and made ready for Heaven. We neglect to remember that human beings are Godlike beings, made in God’s likeness. We need to learn to know more of the way Christ views individuals and how God loves individuals and in so doing we will be stirred to greater action to help those who are truly suffering in our midst.

3. A fuller doctrine of Christ
John Stott believes that evangelical Christians have a narrow vision of Christ’s commission
“as the father has sent me, I am sending you” (John 20: 2l).
When we think of this commission we tend to think of Christ saving souls. We tend to ignore the fact that he not only proclaimed the good news of the Kingdom of God but demonstrated its arrival by healing the sick, feeding the hungry, forgiving the sinful and befriending the dropouts. We put to the back of our minds the fact that He allowed Himself to become a victim of gross injustice in the courts and then, in the awful godforsaken darkness, he bore our sins in His own innocent person. Christian missions must surely involve us in entering into other people’s worlds. We have to enter their thoughts and their world of tragedy and lostness in order to share Christ with them where they are. We need to recall that it was Jesus of Nazareth who was moved by the hungry, the bereaved, the harassed and the helpless. Which Jesus do we preach and think of the most? Do we only think of Christ the evangelist?

4. Fuller doctrine of salvation
John Stott says that there is a constant tendency in the Church to trivialise the nature of salvation as if it meant no more than a self-reformation or the forgiveness of our sins or a personal passport to paradise. He believes that it is urgent that we rescue salvation from these caricatures and recover the doctrine in its Biblical fullness. Salvation should be a radical transformation of our lives. Becoming a Christian is just the beginning and yet we often tend to emphasise faith and end there. Whilst I hold strongly to the belief that we are justified by faith alone this faith must result inevitably in good works; if it is not it is not worth anything at all. In James 2 l7 and l8 says:
“Faith by itself, if it is not accompanied by action is dead … I will show you my faith by what I do.”
And clearly those words do not just consist of doing good works only within the Church situation. If the body of Christ is not marked by Christians who are at the forefront of doing good in society then the Church as a whole is failing.

5. A fuller doctrine of the Church
One of the great dangers that face any church is that many of us think of the church as a kind of club where the common interests of its members happens to be God. We are religious people who do religious things together. We pay our subscriptions and are entitled to the privileges of club membership.

John Stott believes that we need to recover what he describes as the churches “double identity”. On the one hand the church is a holy people called out of the world to belong to God but on the other it is a worldly people in the sense of being sent back into the world to witness and to serve. It is a fine balance which has be reached: Jesus said we are
“In the world but not of it”.

In Matthew 5 : l3 and l6 Jesus is recorded as saying:
“You are the salt of the earth and you are the light of the world”.

By this he meant that if we are to do any good in society our salt must soak into the meat acting as a preservative and giving it flavour. Likewise our light must shine into the darkness. We are not the meat, we are not the darkness. But we have a duty as an individual Christians to constantly act as salt and light.

We need to take heed of the warning given by Christ:
“But if the salt looses its saltiness, how can it be made salty again? It is no longer good for anything except to be thrown out and trampled by men … neither do people light a lamp and put it under a bowl”.

The danger is that when we as a church keep our salt and light within the bounds of the church and are found wanting as the salt and light of the world.

If we take these five doctrines and see them in their Biblical fullness, that is that God is not just our creator but is also a God of justice, that human beings have unique worth because they are made in God’s image, that it is Christ who identified with us and calls us to identify with others, that salvation must be a radical transformation of our lives and that the church is distinct from the world but the salt and light penetrating from God, we will see that the Church comprised of individual Christians has a duty to get involved in the life of the world. Individual Christians and the church in Zimbabwe have a duty to get involved in what is happening in our nation. If we have been guilty of living in a religious cocoon with narrow views of these great doctrines the time for change is now.

The record of the evangelical church in this country

Pre-independence
It is sad that the evangelical church has been blighted by the fact that neither individual Christians nor the church have boldly stood up for God’s standards of justice for many years in this country. If we consider the situation in pre-independent Zimbabwe it is sad that the white evangelical church did not stand up boldly against racism. It largely turned a blind eye to the humiliating experiences suffered daily by black people. It is a disgrace that it was only the Catholic Church, through its Catholic Justice and Peace Commission that condemned the excesses in the conduct of the war on the Rhodesian side. The white Protestant Church was largely silent and blindly followed the Government of the day.

In the post-independence era the situation has been much the same save for the fact that it is no longer just the white church which has been found wanting. ln l983 in Matabeleland hundreds of people were murdered by the Fifth Brigade and the Protestant Church was largely silent. The only church to stand up boldly was the Catholic Church. Twelve years after Independence the Catholic Justice and Peace Commission is still the only church based Human Rights organisation. None of the Protestant Churches have either individually or collectively established their own commission to monitor and report on the abuse of power. With a few exceptions the Protestant Church has been timid in the face of grave violations of human rights.

The present situation in Zimbabwe
As we look at Zimbabwean society in l992 we see much darkness and a society which is very similar to decaying meat. Let us consider five aspects of our society:
l. Megalomania
l Peter 2 : l3 – l6 says:
“Submit yourselves for the Lord’s sake to every authority instituted among men: whether to the King, the supreme authority, or to Governors, who are sent by him to punish those who do wrong and to commend those who do right. For it is God’s will that by doing good you should silence the ignorant talk of foolish men.
Live as free men, but do not use your freedom as a cover-up for evil; live as servants of God.”
We are commanded to submit to the authorities but ultimately we are also commanded not to use this freedom as a cover-up for evil; we have to live as servants of God. In Zimbabwe we have seen the spectre of the President being likened in Parliament to Jesus Christ; something which he himself has never publicly condemned. We have seen the deification of our leaders as people who are somehow above the rest of society and can do no wrong. The church has been silent on this issue; there was hardly a whimper from the church when the President was likened to Jesus Christ in Parliament. There is not a whimper from the church in the face of the excesses of our politicians when they build luxury homes for themselves at a time when people are suffering tremendously.

2. Abuse of power
Amos Chapter 2 : 7
“They trample on the heads of the poor as upon the dust on the ground and deny justice to the oppressed”.
Proverbs l4 : 3l we read:
“He who oppresses the poor shows contempt for their maker, but whoever is kind to the needy honours God”.
Through its abuse of power this Government has systematically trampled on people and denied justice to the common people. Largely the church has been silent.

3. Lies
Proverbs 29 : 27
“The righteous to detest the dishonest; the wicked detest the upright.”
In the last few months in this country the people of Zimbabwe have been subjected to systematic lying by certain Ministers. In particular some of the promises made regarding supplies of grain have been patently false. In Isaiah 28 : 50 we read:
“You boast … for we have made a lie our refuge and falsehood our hiding place.”
In response the Lord said that
“(He) will make justice the measuring line and righteousness will sweep away the lie the water will overflow your hiding place.”
Proverbs 29 : l2
“If a ruler listens to lies all his officials become wicked”
The Church has a duty to speak out against the lies which have been made by various Government officials. The reason I mention the verse from Proverbs is that I believe that we have to proclaim the truths of scripture to Government and that particular scripture says that if our President, being the ruler of this nation listens to these lies and lets them pass all his officials will become wicked and the nation will undoubtedly slide into further decay.

4. Bribery and corruption
Isaiah l is particularly condemning of bribery and corruption: Isaiah l : 2l – 7
“See how the faithful city has become a harlot! She was once full of justice, righteousness used to dwell in her – but now murderers … your rulers are rebels companions of thieves – they all love bribes and chase after gifts.”
Scripture is quite clear regarding bribery. Exodus Chapter 23 : 8 says
“Do not accept a bribe”
Deuteronomy 27 : 25 says
“Cursed is the man who accepts a bribe”
Deuteronomy l7 : l9 says
“Do not accept a bribe for a bribe blinds the eyes of the wise and twists the words of the righteous. Follow justice and justice alone.”
It goes without saying that we should not offer bribes as well as take bribes. Bribery and corruption in this country is rampant. As a lawyer I am aware of corrupt acts
by senior politicians and people in business. Bribes are becoming a matter of course in our nation and I am horrified to see that even Christians are prepared to offer bribes to get their way.

Why do I mention these aspects of life in Zimbabwe? It is simply to point out that the church in Zimbabwe is faced with a corrupt and decaying society. The church does not have to get involved in the science of Government; the church does not have to join a political party. But the Church is duty bound to speak out boldly and fearlessly against these acts of megalomania, dishonesty, abuse of power, bribery and corruption.

Responsibilities and duties of Christians in the Church in Zimbabwe
What can individual Christian churches do in Zimbabwe in a practical way? I would make the following suggestions:

l. I believe that there is a place for righteous anger. In Matthew 2l we read of the way Jesus entered the Temple area and drove out all who were buying and selling there. He overturned the tables of the moneychangers and benches of those selling doves. Jesus was also scathing regarding the Pharisees. I have already referred to the way Steven spoke to the Sanhedrin.
“You stiff-necked people, with uncircumcised hearts and ears!”
I believe that it is time for us to show that we are angered by the blatant corruption and dishonesty in our society. We have a duty as Christians to boldly speak out on these issues and we should not pull our punches in any way. It is time for Christians to call a spade a spade.

2. We need to recognise our own sinfulness and complicity in the situation in which this country finds itself in. We as individual Christians have compromised our faith and lost our saltiness because we have been guilty of offering bribes and not rendering unto Caesar what is due to Caesar. By doing this we actually display our lack of faith in God. We do not believe that God is powerful enough to get the passport that we need at the time when we need it. We do not believe that God is good enough to provide for all our needs if we pay every last cent of tax we are obliged to in terms of the law. Until the church and individual Christians regain their saltiness they are not going to have any effect whatsoever in preserving and providing flavour to society in Zimbabwe.

3. Psalm l9 : 9
“We finish our years with a moan.”
In this regard we as a church are no different to the world in that we concentrate our activities on moaning about the situation prevailing in Zimbabwe at present. I have got to the position whereby I am not prepared to tolerate moaning any longer. If people simply moan and do nothing they deserve the government and society they have. Now is the time for action as Christians. Action to speak out against what is happening around us; to condemn it in terms of God’s standards of justice. Individual Christians and the church have a duty to be salt and light in our society and to speak out against the corruption around us.

In conclusion however I believe that individual Christians, supported by the church, in the manner spoken about by Martin Lloyd Jones, have an opportunity to influence this country. We have a window of opportunity which must be taken. There is a tremendous void in terms of political opposition and ideas in this country at present. Government is paralysed and does not know which way to turn. The opposition parties are reduced to protesting rather than offering viable alternatives. It is a unique opportunity for Christians to influence the future course of this nation. In particular I think Christians could influence a new Constitution for this country. If a Christian believes anything at all about the nature of man it is that man is inherently sinful. Lord Acton once said “Power corrupts and absolute power corrupts absolutely”. Why is that? It is simply because if man is given unrestrained, unfettered power without any safeguards and checks and balances as sure as day follows night he will abuse that power and become corrupted by it. Why? Because man is sinful. The founders of the American Constitution some two hundred years ago were largely Christian men who had a firm grip on the fall of man. They were men who understood that man cannot be trusted. They were men who understood the need for a variety of checks and balances in government. Sadly our present Constitution does not have those checks and balances and I have no doubt that even if ZANU (PF) is voted out of office, the new ruling party and its hierarchy will be just as susceptible to abusing their positions of power unless the Constitution is changed. Now then is the time for Christians to play a major role in framing a new Constitution with all the necessary checks and balances.

Martin Luther King once said:
“Where evil men would seek to perpetuate an unjust status quo, good men must seek to bring into being a real order of justice.”
That is the challenge for Christian men and women in Zimbabwe today. The time has come for Christians to start fearing God more than their fellow men; the time has come for them to get off the fence and to stand up for and to promote God’s standards of justice in Zimbabwe.

How can you do it? Ian has given me permission tonight to promote the Forum for Democratic Reform Trust and I am grateful to him for that. The Forum is not a political party; it is not designed to become a political party. It is designed to be an organisation that will identify alternative policies desperately needed by Zimbabwe at present and to identify leaders of integrity and competence. Once the two have been married then it is hoped that the Forum will act as a catalyst for a viable opposition; but the Forum itself will not become a new political party. There is a window of opportunity offered to Christians to contribute to the debate and to help mould the very nature of those new alternative policies. I would urge you to recognise that window of opportunity and to take it. Now is not the time for wavering or timidity.

DAVID COLTART