Speech by David Coltart: Recent Developments in the Legal Field

March 15, 1994

Recent Developments in the Legal Field

By David Coltart

Tuesday 15th 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 17th 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 7th 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”.