Alex T. Magaisa
Zimbabwe is a godsend for students of the rule of law or more precisely, the lack of it. It’s a modern-day reminder of the fact that even an authoritarian regime can proudly claim to be an adherent to the rule of law while at the same time mutilating it. Those of us who follow Zimbabwe closely are constantly amazed by the confidence and arrogance with which the regime trashes the basic values of a legal system, while still justifying their conduct on the basis of the rule of law.
Take the example of the Mayor of Harare, Mr Bernard Manyenyeni, who belongs to the opposition party, the MDC-T. He was suspended in March this year, by the Minister in charge of local government affairs. The Mayor approached the High Court, arguing that the Minister had no power to suspend him; that the power he purported to use had been invalidated by the new Constitution, which contains extensive devolution provisions and sets out a new procedure for the removal of mayors. The High Court held that although the Minister could not remove a Mayor, he could still suspend him but only for 45 days. If the Minister did not act within those 45 days, then the Mayor would be reinstated by operation of law.
The trouble for the Minister was that when he suspended the Mayor, there was no law for setting up the independent tribunal required under the new Constitution. The 45 day-window expired before the law could be amended and the Mayor was duly reinstated by operation of law. The acting Minister even wrote to the Mayor, purporting to reinstate him. It was a superfluous and useless letter which showed a poor understanding of the law because the Minister had no power to reinstate the Mayor, who had been reinstated by operation of law. But the drama did not end there.
On the same day that the Mayor returned to work, the acting Minister handed him another letter, suspending him again, for another 45 days! The acting Minister had probably written both the reinstatement and re-suspension letters at the same time. The new suspension was on the basis of a new set of allegations related to corruption. The Minister’s conduct smacked of clear abuse of legal process, but still, he claimed to be acting in terms of the rule of law.
So the freshly re-suspended Mayor went back to the High Court and argued that the Minister was abusing legal process by splitting charges against him so that each time his suspension period expired, he would suspend him again. If this was allowed, he argued, the Minister could suspend him indefinitely through periodic renewals of the suspension with fresh charges being brought against him on each occasion.
Today, delivering her judgment, the judge agreed with the Mayor and revoked the second suspension. The Mayor could go back to work. But before the Mayor and his supporters could breathe a sigh of relief, he found himself sitting at the offices of the Zimbabwe Anti-Corruption Commission (ZACC). Apparently he had been brought in for questioning. By the end of the day, he was in police custody. So ended a day which had begun on a bright and hopeful note. The Mayor’s supporters who had cheered and danced at the High Court when the judge lifted his suspension were sad and deflated by the end of the day. The green shoot of hope that had emerged in the morning had wilted very quickly under the heat of a repressive state.
Meanwhile, elements of the Mugabe regime was pointing to it as a triumph of the rule of law. They pointed to the High Court judgment which had lifted the Mayor’s suspension as an example of the independence of the judiciary. But they also indicated that they would lodge an appeal to the Supreme Court. An appeal would suspend the High Court judgment and stop the Mayor from going back to work. In all this, the government would argue that they were complying with the rule of law.
But rather than wait for an appeal, they decided to go one step further when ZACC swooped as soon as the Mayor received his favourable judgment. ZACC, they claim is an independent constitutional body which acts without direction from anyone – never mind the fact that it is “housed” in the Office of the President and Cabinet. When the opposition complain that the government is abusing the law just to punish the Mayor and keep him away from Town House, the government retorts by labelling them hypocrites who demand ZACC to act against corruption but cry foul when one of their own is nabbed. ZACC must be allowed to perform its constitutional mandate, government supporters say.
This would make sense in a normal country where laws apply generally and equally to all persons – that indeed is one of the core principles of the rule of law. But not in Zimbabwe. That is an alien principle. There is one law for ZANU PF political elites, and another for everyone else. Over the past few weeks, the media has been awash with stories of government ministers who have been implicated in corrupt transactions and activities. I wrote a detailed account of these cases here:
In one case, ICT Minister Supa Mandiwanzira got a $US200,000 from a statutory regulatory body under his charge. His deputy Win Mlambo got $95,000. They were car loans, notwithstanding that they had already received their share of new vehicles from government. In another, Energy Minister Samuel Undenge allegedly used his influenced to get a contract with subsidiaries under his charge for a PR company owned by a fellow ZANU PF MP. In another, the Home Affairs Minister, Ignatius Chombo corruptly acquired land from Harare City Council during his tenure as local government minister. All these cases and more involving Ministers suggest serious conflicts of interest, improper use of state resources and abuse of public office for personal gain.
But has ZACC taken any steps to arrest or question any of these government ministers and public officers? Not at all. The law, it seems, is coy in the face of ZANU PF political elites. But interestingly, it shows enormous courage against opposition elements or smaller players within the state. It’s called selective application of the law, which is inimical to the rule of law. But that deficit does not deter the Mugabe regime from claiming to be complying with the rule of law. The difference between the rule of law and rule by law is lost on them.
Yet this method of operation is hardly new. Back in the 1980s, during the dark chapter of Gukurahundi atrocities, the Mugabe regime used similar tactics when hundreds of detainees were kept in jail for long periods of time. Two of the most prominent detainees were liberation war heroes, Dumiso Dabengwa and Lieutenant General Lookout Masuku who is late. They would win a bid for freedom in the High Court, but as soon as they got out of the court house, they would be re-arrested and re-detained, on fresh charges. This went on for some time and each time the regime would argue that they were complying with the rule of law – they would point to the fact that the courts would have released them and that they would have arrested them on new charges.
The Mayor of Harare is a victim of the same tactics. Just different actors and circumstances, but similar methods. As soon as you overcome one hurdle, a new one is placed ahead of you. It’s a never-ending cycle designed to exhaust the subject until one gives up. For them, the law is no more than an iron hand, presented in a velvet glove. The international community has of late appeared to be on a mission of appeasement in relation to the Mugabe regime. The vile treatment of the Harare Mayor and the complete mutilation of the rule of law must surely be grim reminder of the true nature of the subject of appeasement. The leopard’s spots never change.