Category Archives: Democracy

Dendere reshiri: The bird’s nest


The bird’s nest

There is a proverb amongst the Shona people in my country-Zimbabwe-which says

“Ziva kwaunobva, mudzimu weshiri uri mudendere” “Know where you are from, a bird’s ancestors are found in its nest”

This proverb speaks to the value of cultural heritage and roots. Once the bird’s nest is destroyed, its history and cultural heritage are gone. Destroying the nest kills the link between the bird’s current existence and its past. It’s in that old nest that memories of the past were made. Even though the bird may build another nest to create a new home for itself, that home carries no memories of the past nor does it have any value beyond the fact that it is just another nest. Preserving one’s cultural heritage is critical, not only for historical purposes but also for cultural value- linking past, future and present generations.

Montpelier, Monticello and  Ashlawn Highland 

Homes

The homes of 3 US presidents, James Madison’s Montpelier (top), Thomas Jefferson’s Monticello (centre) declared a world heritage site by UNESCO and James Monroe’s Ashlawn Highland (bottom).

In the past 3 weeks, I spent time in and at three of America’s 44 presidents’ homes. These homes and plantations belong to three of America’s founding fathers: Monticello, home of the third President Thomas Jefferson, Ashlawn Highland- home of the fourth president James Monroe and – Montpelier,   home of the fifth President James Madison. Roaming around on these estates, I have come to know how these three bookworms designed the foundations of the American democracy as it is known today.

The three musketeers

The three leaders had certain values in common that leaders should emulate:

  1. They were revolutionary. They believed that a nation—their nation—could be built on the idea that people can govern themselves.  Jefferson—the visionary imagined an independent united American nation and so wrote the Declaration of Independence spelling out the aspirations of its people. Madison-the intellectual, realised that the aspirations contained in the Declaration could only find true practical meaning in another document that clearly spelled out how they could be achieved- the Constitution. Monroe-the operationalist, excelled in enlarging the American territory through his negotiations with the French and his diplomatic skills gained America the space and support it needed in the international world order.
  2. They were well read and multi-lingual. All had libraries in their homes and between them owned thousands of books in as many as seven languages: English, French, Latin, Italian, Spanish, Hebrew and German. It is from reading these books that they formed the ideas they pronounced so eloquently, which ideas shaped their nation’s history.
  3. Except for one thing, they believed in learning from other contexts. Because they spoke and understood many languages, they developed knowledge and connections to other countries’ histories, politics, cultures and traditions. The lessons that they gleaned from the French influenced the decor in their homes. Jefferson’s groomed estate consists of plants flaunted from Africa, Asia and his many travels to Europe. Their common fault, and exception to the listening trait, was their refusal to consider advice from their great friend and ally, Gilbert Du Motier- The Marquis de Lafayette, to give up and free the slaves they owned as the French had done in 1794. How such visionary men failed to see or refused to act on the injustice of slavery is something that will always diminish their greatness in my mind, as with any leader who blatantly ignores or commits human atrocities.
  4. They were patriotic. In all they did, these three men came together to plan and strategise on how to build a stronger and united America. Jefferson was about rights and revolution, Madison about structure and governance, while Monroe focused on international relations and diplomacy.

Through tours with capable guides, and observing the cultural heritage that the Americans have preserved of the men who designed their political system, I reaffirmed the value of doing the same in Zimbabwe.

Our language

Language connects us to our history and traditions. It is our heritage. Denigrating our own language and attempting to mould ourselves into a monolingual community gives us a false sense of security that we fit in with those we emulate. What it really does is to create a sense of deficiency in us, especially when we realise that our command of the foreign language is incomparable to that of native speakers. We may write in foreign languages to be understood by many. We can also learn other languages to learn about other cultures. We must never think our own languages are valueless. We need to develop pride in and value our own local languages.

Our history, our heritage

Monuments

Above are 3 of Zimbabwe’s most beautiful cultural heritage sites, the Chinhoyi Caves(top), Khami Ruins(middle) and Great Zimbabwe Ruins (bottom)-declared a world heritage site by UNESCO and the biggest man-made stone ruins on the continent

We need to know our history; who we are, where we are and where we are going including the stories of the men and women who have made our country what it is today. We may not have memoirs, letters or written documents narrating history but we do have the oral tradition of storytelling, which has passed folk-tales across generations. Story-telling can be used to pass down our history, recognising the limitations that come with it. We need to tell our own stories and give our own account of our history. We must preserve our monuments of national pride. We have done well in Zimbabwe to preserve cultural heritage sites such as the Great Zimbabwe, the Chinhoyi Caves and the Khami Ruins but we must do more to recall and record our history.

Another African proverb aptly put, “Until lions have their own historian, accounts of the hunt will always celebrate the hunter.” African history is predominantly told from the perspective of our former colonisers; books and maps are in colonial languages, mostly written by missionaries and mercenaries. As long as this persists, the account we have remains incomplete. We must tell our own history! We need to preserve our nests, as they will forever serve as reference points for future generations. As Malcom X said, “History is a people’s memory, and without a memory, man is demoted to the lower animals.”


Zim human rights defender wants stronger institutions


**I am reposting this from an article written by the Newsday on my acceptance onto the YALI Fellowship Programme **

Pan-African human rights defender, Rumbidzai Dube, wants strong institutional structures to promote accountability and good governance.

27_Rumbidzai-Dube

 

She says the invitation to participate in the first ever Young African Leadership Initiative (YALI) Washington Fellowship in June will allow her to reflect on her work and life experiences in Zimbabwe while searching for innovative ways to expand and strengthen her work.

Her most recent work at the Research and Advocacy Unit (RAU) involves assessing the contribution of legislators to the democratic process. She tracks the MPs’ attendance, participation, representation of their constituencies and exercise of their oversight role over state institutions.

“I assumed the role of watching what our Parliament does, recognising that Parliament is a critical institution that has the capacity to ensure and guarantee state and government accountability. Putting members of parliament in the spotlight enhances their performance and encourages debate.”

Rumbidzai will spend six weeks at the University of Virginia/ William & Mary. “I will also increase my efforts in public legal education by launching a new website (www.allthingslegalzim.co.zw), a project that will simplify the law for the ordinary person.”

Forecasting her role during the Fellowship, she appears to be caught between a rock and a hard place. To her, the ambassadorial role foisted on her for being one of the 30 Zimbabwean young leaders that have been invited to participate in the Washington Fellowship presents a chance to brag but also to tell hard truths about Zimbabwe, she says. “It will be a delicate balancing act.”

As a legal researcher with a human rights non-governmental organisation and a human rights defender, she has seen the best there can be of the country and yet she cannot shy away from uncivil acts perpetrated against innocent individuals. She notes;

“Being an ambassador means defending my country’s honour and integrity, bragging about the good in it from the amazing people, the wonderful touristic sites, the abundant natural resources, with the biggest bragging point at the moment being that we are the most educated country with the highest literacy rate on the continent,” She adds, “on the other hand I will have to tell the hard truths of the indefensible and reckless acts of violence and corruption that I have witnessed and observed in my work as a human rights defender.”

Rumbidzai completed a law degree at the University of Zimbabwe in 2007. Three years later, she attained a LLM degree in Human Rights and Democratization in Africa from the University of Pretoria in South Africa.

Her career has spurned several international human rights bodies including the Cairo Institute for Human Rights Studies in Egypt (2011) allowing her to witness, first-hand, the struggle for human rights and democratic transformation in Egypt and other North African countries during the Arab Spring.

She also worked briefly in 2010 with the Department of Political Affairs of the African Union Commission in Addis Ababa, Ethiopia.

She sees herself as a social justice advocate, passionate about using the power of the written word to inform, educate and transform societies.

She writes on her personal blog- MaDube’s Reflections- where she interrogates issues of the law as it relates to women, human rights, democratic governance, international relations, and global politics. She is an admitted member of the Zimbabwe Women Lawyers Association and the Zimbabwe Lawyers for Human Rights.


My love letter to the Zimbabwean Judiciary


Dearest esteemed colleagues, honourable members of ‘THE’ noble profession, Judges of our revered Courts, I write this intimate missive to you -one lawyer to another. You have an onerous task; TO CHANGE SOCIETY FOR THE BETTER. In fulfilling that role you also face the challenge of trying to balance the interests of two of the most difficult and at times irrational groupings in our society, politicians and the citizenry.

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

My lordships and ladyships; 120 years ago, on 9 February 1893, an American lawyer, politician and statesman who was also a Democrat presidential nominee 3 times-William Jennings Bryan said something profound, that I believe many of you-being widely read-have come across. He said, “Next to the Ministry [preaching the word of God], I know of no more noble profession than the law. The object aimed at is justice, equal and exact, and if it does not reach that end at once it is because the stream is diverted by selfishness or checked by ignorance. Its principles ennoble [lend greater dignity or nobility of character] and its practice elevates.”

Sirs and madames; the wisdom in this statement remains relevant today as it was then. For what are we as lawyers, if we do not seek to see justice delivered? Can we call ourselves agents of change and justice if our work is driven by self-gain and selfishness? Do we retain our dignity and the dignity of our profession when we display blatant bias, towards things that trash justice and all its principles?

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

Monsieur/madame le juge, my requests are few and simple:-

Make decisions on merit not on political bias

Have a quiet dignified presence.

If the system is rotten, be the maverick within-not just any maverick but one for justice; independent, impartial, accountable. As Martin Luther King Jnr said “The arc of the moral universe is long, but it bends toward justice.” You are entrusted with ensuring that the arc bends towards what is right, fair and true-please do not throw that trust to the dogs.

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

My Lord and Ladies, I know you need to eat, but if you must eat won’t you have hard-earned and honestly attained worms than ill-begotten pudding? I assure you, for eating the worms-history will judge you kindly for your sacrifice. Don’t you think that your integrity and leaving behind a legacy of fairness and balance is much more honourable than serving your immediate needs?

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

Lordships and Ladyships, a wise someone once said “ The judge who gives the right judgement while appearing not to do so will be thrice blessed in heaven, while on earth will not be so.” Is this something that you might want to guide you in making your decisions?

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

Resepectfully, I know you are human beings before you are judges.  I know you experience fear; fear of losing your jobs, fear of reprisals, fear of the unknown.  Do not let fear expropriate your dignity. Rather as Thomas Pain so aptly put it, there is character in strength and choosing to do what is right, above what is convenient. He said, “I love the man that can smile in trouble,  that can gather strength from distress, and grow brave by reflection. Tis the business of little minds to shrink, but he whose heart is firm, and whose conscience approves his conduct, will pursue his principles unto death.“

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

Humbly, when I ask you for impartiality, I am NOT saying do not come to the Bench with any ideas. The truth and reality of it is that you already have them; for or against women, gays, lesbians, prisoners, rapists, murderers, politics, political parties, ideologies and struggles. So bring your ideas to the Bench, but do not let these cloud your judgement in delivering justice. If anything, acknowledge you have these ideas in your head already but challenge them or affirm them with thorough, well-reasoned, value-based, critical thinking entrenched in the two principles of fairness and justice.

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

Your honour, it begins with you to serve justice and yes, your contribution as an individual even if no one else will back you, does matter. Ask Justice Koome of Kenya how she did it. She had a one (wo)man show, where she observed the right and freedom of all individuals from unlawful detention. And so she cleared all cases in the courts of individuals who had been arrested for “insulting the President.” Guess what, even after making these “unwelcome” decisions, which possibly could have lost her a job and income, she remains a judge today.

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

Honourable judges, I believe you know the law is an unfinished publication, you continue reading as each chapter unfolds right in front of you. I have come across these words and would like you to hear them too. They were spoken by Professor John Dugard, a South African scholar of great repute in his criticism of South African judges under apartheid South Africa. He said “The judge is not a mere automaton who declares the law…he has a wide range of options open to him in fact-finding, in the interpretation of statutes, in the review of administrative action, in the application of precedent and in the selection of Roman-Dutch authority; and. . . in choosing between conflicting and contradictory principles of statutory interpretation, precedent and Roman-Dutch authority, the judge may legitimately select those principles, precedents or authorities from our liberal Roman Dutch heritage which best advance equality and liberty.” So think, think and think again before you hand down your decision. Think in favour of equality and liberty. Think in favour of fairness and justice.

 I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

My Lords and Ladies, do not be afraid of labelling, if you are doing a good job, your record will speak for itself. As Justice Yvonne Mogkoro, former Judge of the South African Constitutional Court once said, “The role of a judge is not to be popular but to deliver justice, undiluted, unpolluted.” Your maturity comes with fearlessness and boldness. Do not cower from justice-deliver justice.

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

Oh my Lordships and Ladyships, humbly I urge, be careful in your speech, your utterances, your verdicts and your reasoning. You will be charged for it-maybe not in one of your courts of law-but in our collective memory as a nation. Jackie Assimwe, a friend and human rights defender from Uganda once said, “Once a judiciary is compromised, then the justice it delivers is tainted.” Do not let us doubt the efficacy of your footprints. Rather, regenerate in our minds the integrity and wisdom of the Bench.

I ask you not to favour either one of them [politicians or citizenry]; but please favour justice.

In humility and gratitude, I salute those of you who were suspended for rightly releasing, wrongfully arrested and detained fellow lawyers and human rights defenders.

I salute those of you who defend the rights of the defenceless, in particular prisoners as you ensure their right to fair trial and dignified existence while incarcerated.

I salute those of you who uphold fundamental freedoms, of speech, expression, association, assembly and of the press.

I salute those of you who recognise that divergent views within any society are patriotic as they foster constructive discourse.

I salute those of you who refuse to be “cadrerised”-after all your greatest strength lies in independent thought and expression.

May I invite you all to make these wise words by Mahatma Ghandi your daily mantra in executing your noble duty:

“Let the first act of every morning be to make the following resolve for the day:

I shall not fear anyone on Earth.

I shall fear only God.

I shall not bear ill will toward anyone.

I shall not submit to injustice from anyone.

I shall conquer untruth by truth.

And in resisting untruth, I shall put up with all suffering.”

My final humble request: I ask you not to favour me or either one of them [politicians or citizenry]; but please favour justice.


Day under the Egyptian Sun


As I write this piece, the Egyptian army is claiming to have ousted Egyptian President Mohammed Morsi. Morsi insists he is still president and that he is open to negotiations. He had only been in power since 30 June 2012, following what has been known as Egypt’s first ‘democratic’ election.

Everything about this situation defies all the obvious definitions we have come to know as questions are buzzing around; was the ousting of Morsi a revolution or a coup or… Who knows???

Democratic election? Was the election that led to President Morsi’s election democratic? Many of the anti-Morsi protestors will tell you it was not. The US government will say it was. What would make the election democratic or not?

Was it competitive; did all parties and candidates enjoy fundamental freedoms of speech, assembly, and movement? Did they have the necessary to voice their criticisms of the government openly? Did they manage to bring their alternative policies and candidates to the electorate?

Was it periodic, oh well since this was the first such election that really doesn’t count does it.

Was it inclusive; did all eligible and willing voters vote? Were any religious, racial or ethnic minorities excluded? Were women included? Were all interest groups included?

Was it definitive; was a leadership of the government chosen? Of course, there would not have been a President Morsi had that not happened.

So then was the election democratic: I don’t know…

Others argue these events oust a “legitimately elected leader.” Who confers legitimacy on a leader? Who elects a president?  Is it not the people, the same people who have decided that he is not living up to expectations and have decided to remove him? If these same people with the right to choose a President were now describing him as “a political despot who was peddling religious fundamentalism to consolidate his power base,” did he still remain “legitimate?”

Oh but wait, there is a Constitution. Constitutionalism demands that the President should be removed through a democratic election but neither through a mass protest nor through the solicitation of the military’s strength. In terms of the law he obviously remained legitimate because he could only be legitimately removed through another election , but politically was he still legitimate? I don’t know that either…

To throw in another spanner, was the Constitution itself a legitimate document? Is it legitimate when citizens are trashing its provisions and crying foul about the process through which it came into being? Is it legitimate when citizens are crying foul about its provisions and crying foul about the implementation of some of its provisions? Is that Constitution binding or do the people have a right to demand a re-write of the Constitution-for the people, by the people, of the people? Again, I don’t know…

Is this a coup? The Encyclopaedia Britannica defines a coup as “a sudden, violent overthrow of an existing government by a small group, the chief prerequisite of which is control of all or part of the armed forces, the police, and other military elements.” Was it sudden-yes. Was it violent-well four people died and a whole lot more injured.  Was it illegal-in terms of the constitution-yes. Did it result in the seizure of power from a government – yes. So was it a coup-hey, I don’t know…

Is this a revolution? Again the Encyclopaedia Britannica says a revolution occurs when “large numbers of people working for basic social, economic, and political change organise and execute a major, sudden alteration in government.”  Were there large numbers in Tahrir-the images speak for themselves. Were they asking for social-economic change- bread, butter and bedding issues do sound economic and social to me. Were they asking for political change- definitely, against arbitrary arrests and other rights violations.

Late on 3 July, a number of civics in Egypt including the Cairo Institute for Human Rights Studies described the mass uprising as “tantamount to a genuine popular referendum by which the majority of Egyptians rejected all policies seeking to undermine rights and liberties in the name of empowering a single political faction to monopolise state institutions, undermine the rule of law and judicial bodies, disregard court orders, harass and prosecute political opponents, and restrict the media and freedom of opinion and expression.”

Many are giving these events many terms; counter-revolution, popular uprising, invited coup, popular coup, a coup within a revolution, a revolutionary coup.  What it all adds up to is that there is nothing defined under the Egyptian sun.


The Harassment of Justice: A tale of a tale


A couple of months ago, I published “The Story of Beatrice Mtetwa-A Red Herring’ in which I posed a number of theories pertaining to Beatrice’s arrest. One of them was that Beatrice’s arrest was an intimidation tactic by state agents of all citizens who would wish to take the same stand as Beatrice; i.e. the stand to fight against any injustice visited upon individuals who are fighting for human rights and fundamental freedoms of citizens. I emphasised that Beatrice’s persecution and vilification was meant as an example calculated to ensure that sufficient fear was planted in all of us so that whoever doesn’t toe the correct political line, will face the full wrath of those in power, under the guise of the law.

This theory seems the most relevant given the continued onslaught that the state has launched against Beatrice. This blog however seeks not to over-analyse the reasons behind the onslaught but rather to give an update of how this case has proceeded.

  •  17 March: Beatrice Mtetwa was arrested in Avondale. On arrest she was charged with obstructing or defeating the course of justice in contravention of Section 184 (1) (g) of the Criminal Law (Codification and Reform) Act.
  • 18 March: at exactly 0151 a.m.  High Court Judge Charles Hungwe, from his home, ordered Beatrice’s immediate release. He argued that there was no basis for her continued detention since the allegations laid against Beatrice did not reveal a criminal offence.
  • 18 March: around 0230 a.m. Beatrice’s lawyers served Justice Hungwe’s order on officers at Rhodesville police station. The police officers refused to release Beatrice.
  • 18 March: Beatrice’s lawyers lodged an application in the High Court stating that the refusal by the police to enforce Justice Hungwe’s order was in contempt of court.
  • 18 March: Beatrice was told that she would appear in court on 19 March and based on this information her lawyers withdrew their application.
  • 18 March: Justice Hlatshwayo dealt with the withdrawn application and dismissed it with no reasons given.
  • 19 March: Beatrice appeared before Magistrate, Marehwanazvo Gofa, at Rotten Row Magistrates Court represented by Advocate Thabani Mpofu to determine her remand conditions. Advocate Mpofu argued that this hearing should not have been done in the Magistrates Court since an order of the High Court a more superior court had already granted Beatrice’s release.
  • 19 March: Advocate Mpofu argued that Beatrice had not been treated well in police custody because in the dead of the night, on 18 March two male police officers entered Beatrice’s detention cell at Rhodesville Police Station and attempted to uncover her from her blankets. Beatrice feared that she might be raped.  Further, she had not been allowed to bath since her arrest.
  • 19 March: the Magistrate ruled that the case was rightly before the Magistrates Court because the issue of her placement on remand was separate from the issue of her detention in police custody.
  • 19 March: Beatrice’s lawyers proceeded to request that she be remanded out of custody and gave reasons why she should be granted bail including that she is a highly reputable and established lawyer, with no criminal record.
  • 19 March: the Prosecution requested an adjournment to respond to Beatrice’s lawyers’ argument and the Magistrate adjourned the case to 20 March 2013.
  • 20 March: the State argued that Beatrice should not be granted bail because the charges she was facing were very serious, that she would likely abscond because she had a foreign passport, or that she would interfere with investigations if released and that her release would set a dangerous precedent. “Anarchy would prevail”, they argued.
  • 20 March: Magistrate Gofa bought into the prosecutor’s argument and dismissed Beatrice’s bail application and remanded her in custody to 3 April.
  • 21 March: Beatrice’s lawyers appealed this decision in High Court.
  • 22 March: Justice Joseph Musakwa heard the appeal.
  • 22 March: State requested adjournment of the appeal to ‘allow time to submit their response.’ Justice Musakwa agreed to the adjournment and set down the appeal hearing for 25 March.
  • 25 March: Justice Musakwa granted Beatrice $500 bail setting aside the Magistrate’s on the basis that Beatrice’s reputation was too great to be ignored and that the police had not shown how much of the investigation was left to be “interfered with.”
  • 3 April: Beatrice appeared before Donald Ndirowei for a routine remand hearing. Magistrate Ndirowei postponed the matter to 8 April to allow the State to determine a trial date and her lawyers to challenge her being remanded.
  • 5 April: the prosecution served Beatrice with papers setting out their case against her.  The prosecutors added fresh allegations against Beatrice.  The fresh allegations stated that on top of saying “Stop whatever you are doing, it’s unconstitutional, illegal and undemocratic,” as was the case in the initial charge, Beatrice had also said “You confused cockroaches”  “Murimbwa dzaMugabe” i.e. “You are Mugabe’s dogs” and that she had conducted herself in an ‘indecent’ manner when she threatened to relieve herself in a public place.The case named nine witnesses set to testify. These were:
  • Chief Superintendent-Luckson Mukazhi
  • Detective Assistant Inspector-Wilfred Chibage
  • Detective Constable-Ngatirwe Mamizi
  • Detective Sergeant-Taizivei Tembo
  • Assistant Inspector-Thabani Nkomo
  • Chido Chawanikwa-a police officer
  • Stembiwe Vera-a caretaker at Prime Minister Morgan Tsvangirai’s research and development office
  • Brian Mutusva-a computer technician in the Prime Minister’s Office and
  • Zororai Mudariki-a driver.
  • 8 April: Beatrice appeared in the magistrates’ court. The state’s case was led by Tawanda Zvekare, Acting Director of Public Prosecutions in the Attorney General’s Office, assisted by Michael Mugabe, a chief law officer.
  • 8 April: Beatrice was remanded on bail and the case was adjourned to 27 May when the trial was expected to begin.
  • 27 May: Beatrice’s case was set to start at Rotten Row Magistrates Court presided over by Magistrate Tendai Mahwe. The trial failed to start on time because Tawanda Zvekare, the Acting Director of Public Prosecutions in the Attorney General’s Office and Michael Mugabe, the chief law officer who were leading the prosecution did not arrive at the court on time. The trial was also delayed because the designated courtroom did not have the necessary equipment to record the proceedings. Then when eventually a courtroom with equipment was found, power went off.
  • 27 May: Magistrate Tendai Mahwe postponed Beatrice’ trial to 8 June 2013.
  • 8 June: Magistrate Tendai Mahwe recused himself from presiding over Beatrice’s trial after she had filed an application for such recusal stating that Magistrate Mahwe had already heard the testimony that her witness would give in another case.
  • 10 June: Beatrice’s trial kicked off at Rotten Row Magistrates Court presided over by Magistrate Rumbidzai Mugwagwa. She was represented by her lawyer, Harrison Nkomo. Beatrice pleaded not guilty to charges of defeating or obstructing the course of justice.
  • 10 June: Magistrate Rumbidzai Mugwagwa postponed Beatrice’s trial to Saturday 15 June 2013 to allow her lawyer to attend to some other matters in the High Court.
  • Meanwhile the trial continues with hearings held each Saturday and we wait to hear what the final verdict will be.

Anomalies with this case

  • Arrest of a legal practitioner while conducting her duties;
  • Contempt of court by police officers ignoring a High Court order;
  • Retrial by the Magistrates Court of an issue that had already been decided by a higher court;
  • Harassment of a High Court Judge for ordering the release of an upright human rights defender;
  • Display of political intolerance and disregard for constitutional and legal guarantees of freedom and rights of citizens.

**** If convicted, Beatrice stands to serve a maximum penalty of either a fine of $400 or 2 years’ imprisonment, or both fine and imprisonment. ****

 Acknowledgement goes to Zimbabwe Lawyers for Human Rights, Sokwanele, Veritas, Kubatana and a few other independent sources of information for the information resources used to compile this update.


Reflections on the SADC Summit


A couple of nights ago, I attended an event hosted by the Southern Africa Political Economy Series (SAPES) Trust. The discussion brought together three panellists; Ambassador Chris Mutsvangwa of ZANU PF, Honourable Priscilla Misihairambwi Mushonga of MDC and Honourable Jameson Timba of the MDC-T. Dr Ibbo Mandaza facilitated the discussion in which the panellists gave their personal reflections on the recently held Extraordinary Southern African Development Community (SADC) summit of heads of states and governments held in Maputo, Mozambique on the Zimbabwean situation. The Summit culminated in the issuance of a Communique whose recommendations are captured HERE.

Jameson Timba (Deputy Minister of Media, Information and Publicity and Member of House of Assembly for Mount Pleasant)

Mr Timba mentioned that the purpose of the SADC Summit was to discuss the Zimbabwean Situation in the context of the Global Political Agreement. Given that SADC are the guarantours of the GPA, they serve the role of a service station, when the GPA needs a push or boost. He explained that the reality is that Zimbabwe is facing a political rather than a legal crisis because the Constitutional crisis the nation is in could have been avoided had the wrong political decisions not been made in the first place. He said that the MDC-T went to the SADC Summit very confident that the 31 July date set for elections could easily be changed to accommodate the reforms agenda given that there is already precedent in our courts where the President has sought postponement of by-elections on the grounds that the state is ill-prepared i.e. the case of Bhebhe & Others v The State.

Jameson Timba: Picture Credit Bulawayo24.com

Jameson Timba: Picture Credit Bulawayo24.com

Mr Timba felt that the Summit went very well and that the final Communiqué that came out of the discussions expressed SADC’s wishes for Zimbabwe’s successful transition into a democracy through the holding of credible, free and fair elections. Mr Timba expressed his admiration for the President of Zimbabwe and his conduct at the SADC Summit.  In Mr Timba’s view, the President-unlike those who surround him- showed that he respects SADC, something which Mr Timba accredited to the President’s deep admiration of the regional body whose origins from the Frontline States during the struggle for independence represents a point of solidarity. He however expressed disappointment with some individuals within the President’s Party whom he said were constantly acting in bad faith. He cited the example of Honourable Patrick Chinamasa whom he said has shown bad faith in two instances:

  1. According to Mr Timba, on the Tuesday before the proclamation of the election date, Honourable Chinamasa was asked in a Cabinet meeting when he was going to present the Electoral Amendment Bill. He responded saying the Bill would be presented in the coming week meaning this week. According to Mr Timba, at this stage, Mr Chinamasa already knew that he was working on a Bill but that he had no intention of bringing it through Parliament but through the Presidential Powers Temporal Measures Act, which in Mr Timba’s view was an unconstitutional and underhanded manner of effecting electoral changes.
  2. Mr Timba also stated that the SADC Communiqué in Paragraph 8.5 says,

“Summit acknowledged the ruling of the Constitutional Court of Zimbabwe on the elections date and agreed on the need for the Government of Zimbabwe to engage the Constitutional Court to seek more time beyond 31 July 2013 deadline for holding the Harmonised elections.”

Mr Timba emphasised that when SADC said government, it was referring to the whole inclusive government.  This then meant that the government of Zimbabwe (the inclusive government) in its entirety was urged to bring a case before the courts to remedy the situation of the election date proclamation. Mr Timba said that he was however disappointed that at 5p.m on Monday, Mr Chinamasa served him with papers in which he (Mr Chinamasa) filed an application to the Constitutional Court and made the President of Zimbabwe-Robert Mugabe, the Prime Minister of Zimbabwe-Morgan Tsvangirai, the leader of the MDC Party-Welshman Ncube, the Deputy Prime Minister of Zimbabwe-Arthur Mutambara and Jealousy Mawarire the Respondents. In the Application Mr Chinamasa asks for an extension of the election date to August 14. Mr Timba explained that this application is against the spirit of the SADC Communiqué. Instead of making the parties mentioned above respondents, they all should have been cited as Applicants, they should all have contributed to the application’s contents through their legal representatives’ interaction with the Minister of Justice and the application should have been unopposed (one without respondents).

Chris Mutsvangwa (Member of ZANU-PF and former Ambassador of Zimbabwe to China)

He began his presentation by stating that he does not agree with the view that there is a crisis in Zimbabwe, be it political, legal, constitutional or otherwise because to him the current situation is a mere disagreement not a crisis. He then went on to give a disclaimer stating that although he was in Maputo he did not actually participate in the discussions that took place at the Summit nor was he privy to the outcome until he saw the Communiqué when it was presented to the public. [This admission for me was particularly interesting having read THIS article in which the author complained that the President’s delegation was bloated].

Mr Mutsvangwa however explained the position of his party where the Summit was concerned. He said that the President went with the simple position that ‘THE’ Constitutional Court of Zimbabwe had made an order setting the election date as 31 July. The president had no option but to respect the order of the Court or else he would have risked being in contempt of Court, something that could cost him his presidential candidacy. According to Mr Mutsvangwa, the President’s hands were tied and he had no option but to proclaim an election date as provided for in the Constitutional Court Judgement.

Chris Mutsvangwa: Picture Credit- ZimbabweMirror.com

Chris Mutsvangwa: Picture Credit- ZimbabweMirror.com

Concerning the question of reforms, Mr Mutsvangwa stated that no reforms are going to take place and those clamouring for reforms should remember that these same issues have been under discussion for the past four years with no success hence what is the likelihood that they will be settled in a few weeks when they have failed to be settled in years. He stated that ZANU-PF in 1980 was faced with a similar situation where they had to go for elections in an imperfect environment with no reforms to the electoral law nor to the security sector yet they still won the elections. He explained that the issue is not about reforms but about the leader whom Zimbabweans want to vote for. He said that each party has to be creative in how it “deals with the imperfections of state craft.” Mr Mutsvangwa went on to say that refusing to have elections on the basis that the environment is not perfect is akin to  a pregnant woman  who opposes the course of nature and refuses to give birth to her baby after 9 months of pregnancy because she thinks the baby is not mature enough.

Mr Mutsvangwa addressed his partners in government saying that it is time government stopped ruling by arrangement but rather by the people’s choice. He went further to say that yes SADC issued its Communiqué but people must remember that SADC is not Zimbabwe’s Constitutional Court, it is just a club of states hence if Zimbabweans want elections on 31 July, SADC cannot stop that from happening.

Priscilla Misihairambwi-Mushonga (Secretary General of the MDC, Member of the House of Assembly Glen Norah Constituency and currently Minister of Regional Integration and International Cooperation)

Ms Misihairambwi-Mushonga began her presentation by expressing her disappointment with the way in which this nation has been subjected to blatant lies, abuse and distortion of information She stated that she was disappointed with the fact that Honourable Chinamasa who was negotiating on behalf of ZANU-PF was not at the SAPES discussion as he was the person who would have best explained the distortions coming out of some quarters of the press about the outcome of the SADC Summit. She felt that Mr Mutsvangwa’s representation of Mr Chinamasa was an act of abuse since Mr Mutsvangwa had no clue what took place having been “on the corridors” of the Summit.

Priscilla Misihairambwi-Mushonga: Picture Credit-The Independent.co.zw

Priscilla Misihairambwi-Mushonga: Picture Credit-The Independent.co.zw

Ms Misihairambwi-Mushonga then went on to give a detailed description of what transpired at the Summit as follows:

SADC was appraised with the situation of Zimbabwe which they understood to be that Zimbabwe was faced with a legal crisis in which there was a Constitutional Court judgement but that judgement juxtaposed to the practical realities on the ground would not be possible to implement. The Facilitator for the Zimbabwean negotiations, President Jacob Zuma of South Africa presented his report which came out of discussions held by the parties to the GPA on the 4th, 5th and 6th of June 2013. The facilitator’s report was therefore not challenged nor disputed by all three political parties i.e. ZANU PF, MDC-T and MDC.

Ms Misihairambwi Mushonga then went on to state where the parties seemed to have different positions and she explained them as follows:

President Mugabe’s position was that he believed that as long as there is no violence then an election can go on. He agreed with the need for media reforms and also stated that he has been a victim of the media’s unprofessional and unethical conduct several times but that within the given time there is nothing much that can be done about this. He also addressed the issue of the rule of law, in particular the security sector, acknowledged that statements by some heads of security departments were not acceptable nor appropriate but that they could be explained when one understands that these statements were made by people who shared the liberation struggle with ZANU PF and hence would feel protective over their ideals. He then requested that these Chiefs be treated gently and with such sensitivity as would take cognisance of their socialisation and history. On the election date he explained that his hands were tied and he had to make the proclamation because the Constitutional Court had ordered him to do so. According to Ms Misihairambwi Mushonga, the President never disputed the facilitators’ report, never said that the report lied or that the facilitator was biased.

Ms Misihairambwi-Mushonga then went on to explain that Prime Minister Tsvangirai’s contention at the Summit was with the dishonesty shown by some members of the inclusive government. He explained how Minister Chinamasa had withheld the truth from Cabinet about his plans to amend the Electoral Act through using the Presidential Powers instead of introducing a Bill for debate and inclusive input before both houses of Parliament.

Ms Misihairambwi-Mushonga then explained Professor Welshman Ncube’s position; that he was concerned with the legal and political illegitimacy that would follow whatever government that would emerge out of the elections that would be held under the ruling of the Constitutional Court.

Ms Misihairambwi-Mushonga was pleased with the Communiqué, disappointed with some people whom she said were ill advising the President and hoped that the spirit of the Communiqué would be upheld.

Some interesting quotes from the discussion

“I am tired of this fixation of men on who is bigger than who which leads them into this bravado game where simple information is distorted and the truth withheld from the public.” Priscilla Misihairambwi Mushonga

“Chinamasa and others’ advice to the President on this elections issue is misleading, in fact it is treasonous.” Priscilla Misihairambwi Mushonga

“I hate it when leaders of this country behave like landlords and treat the people like their tenants. Leaders are just caretakers and the people are the real owners of all processes.” Jameson Timba

“For goodness’ sake no one owns this country.” Priscilla Misihairambwi Mushonga

“If anyone is not happy with the way we do things here and thinks there is a crisis let them come and I will fly them to Somalia so they can see what a real crisis looks like.” Chris Mutsvangwa

Conclusion

It was an interesting discussion and all the views presented here are the views as expressed by the panellists to the discussion. In the end Ambassador Mutsvangwa walked out of the meeting in protest over what he said was “utter disrespect” by Ms Misihairambwi- Mushonga of those who “delivered the country into her hands so that she could become a Minister.”


Some interesting titbits to mull over voting processes in Zimbabwe


Titbit One

Deriving from the statistical figures of the 2012 Census there are approximately 6 070 537 adults in Zimbabwe. This means approximately 52% of the total Zimbabwean population are above 18 years of age. I am saying approximately here because up to date, ZimStats-the body mandated to conduct national Census- has only released the “preliminary” results from the 2012 Census and has not released all the full figures of that exercise, despite that the Census was concluded in September 2012; 9 months ago. How efficient, right!

Titbit Two

Zimbabwe has a total population of about 13.2 million. Of these, the RG says 5 867 642 were registered to vote as of October 2010. This means 87.8% of all eligible voters were registered to vote then. On the other hand Kenya has about 44 million citizens and of these about 12 616 627 were registered to vote in the 2013 elections. Now this is interesting, right? Is it because Zimbabweans are more educated about the importance of participating in ‘democratic’ processes than Kenyans? Is it that Kenyans are apathetic and do not engage political processes? Could it be that Kenyans were discouraged by the 2007/2008 electoral violence? But we also had a good share of that, so then was their violence worse than ours?  Do we as Zimbabweans have more faith in elections and so we always want to have our voices heard through the ballot? Or is it just as simple as that these figures are not accurate? Is it possible that some people registered to vote never registered to vote but were put on the voters’ roll by the Registrar General since he has all their birth, death, citizenship details as well?

A picture that I took of the scores of voters who thronged the Ongata Rongai Open Market in Nairobi, Kenya Polling Station to vote in March 2013

A picture that I took of the scores of voters who thronged the Ongata Rongai Open Market in Nairobi, Kenya Polling Station to vote in March 2013

Titbit Three

According to the Zimbabwe Electoral Commission 3 316 082 Zimbabweans voted in the 16 March 2013 Referendum for a new Constitution of Zimbabwe. Of these, 3 079 966 voted ‘Yes’, 179 489 voted ‘No.’ Very impressive, right? I do wonder where these people came from though because having observed the process, the turnout-at least in Harare- was very low. On the other hand in Kenya 66.9% voted ‘Yes’, 30.7 voted ‘No’ and voter turnout was at 72.2%. Seems we Zimbabweans love our new constitution more than the Kenyans love theirs. Is it because our new Constitution is better than the Kenyan one? Is it because we yearned for a new Constitution more than they did? Could this have something to do with the fact that Zimbabweans hardly knew what they were voting for whereas Kenyans had several months in which they were intensively educated and informed about the contents of their Constitution and hence voting in Kenya was from a fully informed position?

Titbit four

According to a voters’ roll audit conducted by the Research and Advocacy Unit in October 2010, there were 41, 119 people aged over 100 years on the Voters Roll. It seems Zimbabwe is a healthy nation full of politically conscious and really old citizens, who want to stake their claim on the political landscape. I would love to interview all these people and find out what voting has meant to them for the past +/- 85 years, including the years when they were dis-enfranchised under white supremacist rule, their experiences with voting in an independent Zimbabwe and voting in all the subsequent elections.

Titbit Five

Did you know that the Registrar General is in charge of recording births? He is also in charge of recording deaths and is also in charge of awarding citizenship. Further, the RG is also in charge of the registration of voters; although under the transitional provisions of the new constitution such registration is supposed to be done under the supervision of ZEC. What does this mean for people considered to be aliens? What does this mean for the removal of dead people off the voters’ roll? What does it mean for the accurate recording of people eligible to vote? Is there enough supervision of these extensive powers? What safeguards are there for the abuse of power and manipulation of the voters’ roll?

Titbit Six

Did you know that before any voter is removed from the voters’ roll the Registrar General must send written notification of the intent to so remove?  This includes even people who are presumed dead. This is to allow the person to appeal the decision in case they have reason to believe that they should remain on the voters’ roll or in case they are actually not dead as presumed. Does anyone know if such notifications were given when the Registrar General removed the 969 620 ‘dead’ people that he removed from the voters’ roll as announced by the Herald on Friday 3 May 2013?


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