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A plea for action on Zimbabwe by South Africa and Germany
by David Coltart

The current situation

In his book Development as Freedom, the Nobel Prize winner Amartya Sen stresses the causal connection between democracy and the absence of famine. He makes the point that there has never been a famine in the recorded history of any country which has a free press, to support the claim that a free press and an active opposition constitute the best early warning system a country threatened by famine can have. In other words, the failure or non-existence of democracy usually results in economic collapse, and that in turn invariably leads to such humanitarian catastrophes as famine.

The destruction of democracy, weak as it already was, in Zimbabwe since 2000 has been well documented. In 2000 Zimbabwe had a unique opportunity, which it squandered, to build a national consensus on a new constitution. Since then there has been a rapid decline into increasingly authoritarian rule. The implosion of the Zimbabwean economy has followed. The country now has hyperinflation and is rated the fastest-declining economy in the world. The death of democracy and economic collapse have together resulted in a humanitarian crisis of unimaginable proportions.

The World Health Organisation (WHO) recently reported that people living in Zimbabwe now have the lowest life expectancy in the world. Since 1994 the average life expectancy for women in Zimbabwe has fallen from 57 to 34, and for men from 54 to 37. The WHO believes that life expectancy rates will continue to fall. It is estimated that some 3 500 people die every week in Zimbabwe through the deadly combination of Aids, poverty and malnutrition. To put that in a global context, a recent report stated that some 700 people a week were dying in Iraq. Another publication said that some 400 000 people have died in Darfur since 2003: this can be compared with the estimate that about 600 000 Zimbabweans have died during the same period.

The Judge President, Justice Makarau, in her address to the opening of the High Court on the 15th January 2007, has correctly stated that normally Judges should not complain publicly regarding their conditions of service, but that she has to because their conditions, and the conditions of all those involved in the justice system, are now dire. The MDC is in principle sympathetic towards Judges and towards all those affected by the fact that the government has not allocated sufficient resources to the Ministry of Justice.

However the reason why this deleterious situation has been allowed to arise is because the Zanu PF regime does not care about justice and only tolerates the Judiciary in so far as it serves its purposes. Since 2000 law, and the justice system in general, has been used as a weapon against legitimate democratic opposition. Spurious charges have been brought against opposition leaders, activists and supporters; equally spurious trials have been held. Judges have delayed politically sensitive matters such as electoral petitions and applications for the release of activists, including MPs, causing serious miscarriages of justice. Many Judges have seriously compromised their independence by taking and occupying farms often unlawfully seized from commercial farmers. Many Judges since 2000 have severely retarded the positive strides made by the Judiciary since 1980 in expanding the rights of Zimbabweans through positive interpretations of Zimbabwe’s Declaration of Rights, by handing down a string of judgments inimical to universal human rights norms. Other Judges who have chosen to act professionally have been hounded out of office and some have gone into exile.

Heads of argument (attached below) were filed in the High Court of Zimbabwe this morning by lawyers representing Mike Campbell (Pvt) Ltd (a Zimbabwean farming company) in a Supreme Court application in which the constitutionality of Amendment 17 to the Zimbabwean Constitution is challenged. Whilst this is a private initiative, and I should stress the MDC has not been involved with the case, I commend these Heads and the case generally.

Constitutional Amendment 17, passed in 2005, removed the right of the Courts to adjudicate in land acquisition matters. In doing so a horse and carriage was driven through the fundamental democratic right of due process, especially the right to have one’s rights determined by an independent court. The amendment also shattered any notion that we have a genuine separation of powers in Zimbabwe and that there is any reasonable balance between the powers exercised by the executive, legislature and judiciary.

Since the amendments were first tabled in Parliament our view in the opposition has always been that the amendments were so far reaching that they actually destroyed the very core of our Constitution, and therefore even though procedurally Amendment 17 was passed correctly in Parliament, it remains illegal. In essence our view has always been that one cannot pass any amendment to the Constitution, just because one may have a 2/3rds majority. There are some rights so sacrosanct, so part of the fundamental core and structure of the constitution, that if they are removed from a constitution, that constitution is rendered meaningless.