THE 1998 LAW SOCIETY OF ZIMBABWE SUMMER SCHOOL
Introduction
The phrase “culture of human rights” evokes many different meanings in different people. One person’s definition of “culture” will differ very greatly from another person’s definition. Likewise the term “human rights” on its own is usually interpreted subjectively. What one person may view as a human right may be viewed by another as a crime.
Culture is defined in my dictionary as “a type of civilisation”, a “refinement”. Civilisation is defined as an “advancement beyond the primitive, savage state,” a state marked by a sophisticated, self-controlled, fair and enlightened environment. However one has a problem too with the word “civilisation” as it means many different things to many different people. For example Thomas Carlisle, wrote, in the nineteenth century, that: “the three great elements of modern civilisation are gunpowder, printing and the Protestant religion”.
The civilisation propounded by Carlisle has not exactly had the positive effect in creating a human rights culture in the world in the twentieth century; a century which has seen some of these elements used to promote ideologies profoundly adverse to a human rights culture. In sum it is very difficult to find common ground as to what we mean by a culture of human rights.
It will be obvious that there is a need to agree on what we all mean by a “culture of human rights” if we are to debate this topic effectively. What then could be an objective definition of a culture of human rights? Religious people, be they Christians, Moslems or Hindus, or whatever, would argue that there is, in the words of the late Richard Turner, “a transcendent morality which determines what a human rights culture is”. Richard Turner in his book “The eye of the needle” wrote:
“The essence of all religions lies in the concept of transcendence, that is, in the idea of something which goes beyond the present, which goes beyond what people are doing in the world at this moment, and in the light of which the present is only of secondary importance. The transcendent ethic demands that we question our taken-for-granted ways of behaving, that we continually question them”.
Jesus Christ once said that one of the principal commandments was to “love your neighbour as yourself”. Most religions, would, in one way or another, adhere to that fundamental principle. In other words at the very essence of the term “culture of human rights” must be a society which treats its people in the same way individuals in that society would want to be treated themselves. Perhaps another way of finding an objective definition would be by referring to the United Nations Declaration of Human Rights. I think that most sane people would agree that United Nations Declaration of Human Rights reflects the fundamental rights which we all, universally, cherish and would want to be applied to ourselves. We can then say that a country which enjoys a “culture of human rights” is a country which respects and enforces the fundamental rights contained in the United Nations declaration.
Against that background can we say that Zimbabwe has a culture of human rights? In other words is Zimbabwean society marked by respect for these basic rights? Are those universally accepted rights deeply ingrained in our society? Does the Government of the day promote these rights? Do our laws conform to these rights?
Sadly when we look back on the history of this country over the last hundred years since it became a defined and modern nation state, it is a reality that Zimbabwe, and before it Rhodesia, has not had a proud record of respect for human rights. Its history is such that
it was created as a modern nation state not through consensus but through the barrel of the gun in the 1890’s. Its transformation from white minority rule to black majority rule also came through violence. That violent history has not promoted a culture of human rights. On the contrary the acquisition and maintenance of power by force has created a very conservative society, a society which in many respects does not cherish human rights. And I need to state at the outset that when I talk about a conservative society I mean a society which spans the racial and ethnic divide. In other words both black and white Zimbabweans are deeply conservative. In this regard I am reminded of the words of Martin Luther King said in the American context:
“Our cultural patterns are an amalgam of black and white. Our destinies are tied together. There is no separate black path to power and fulfilment that does not have to intersect with white roots. Somewhere along the way the two must join together, black and white together, we shall overcome.”
We need to recognise that there is no such thing as a white or black human rights culture. The history of our nation has been dominated by black and white politicians and their respective systems of governance which have together stifled the emergence of a human rights culture. As you will see from this paper it is my belief that we do not have a strong culture of human rights in Zimbabwe (if at all) and that this is the result of decades of rule by regimes which have had scant respect for human rights.
If then we do not have a culture of human rights, or if our culture of human rights is in its infancy, how then do we describe our human rights culture in Zimbabwe, such as it is? I propose to look at four elements of Zimbabwean society, four elements of our Zimbabwean culture which reflect our attitudes towards human rights and influence our views regarding the constitutional debate.
1. The culture of unquestioning trust in and respect for political leaders
King Lobengula, Cecil John Rhodes, Ian Smith and Robert Mugabe are four powerful, charismatic leaders who have dominated the political landscape of Zimbabwe over the last hundred years. Very few countries in the world, let alone Africa, have been influenced so greatly by politicians such as these men. Many countries have of course endured dictators and despots; very few have had a succession of such all powerful leaders. This historical fact is partly because of the character of the individuals themselves and partly because of the culture of Zimbabwean people, black and white. The people of Zimbabwe, and before that, the people of Rhodesia, by and large have turned a blind eye to the folly of their leaders. We have developed the culture of the “chef”; men allowed to rule our nation without restraint.
This has happened in part because it seems as if the vast majority of our people believe in the inherent goodness of our leaders. We have allowed our leaders to become demi-gods and I need to emphasise that this is not a phenomenon of Zimbabwe. Rhodesians too had pictures of “good old Smithy” on their walls. Smith in many ways became a demi-god in the eyes of white Rhodesians. Robert Mugabe has perpetuated that model and refined it. His motorcades and photographs constantly remind us of his demi-god status. Young people may be forgiven for thinking that the demi-god status of Mugabe is something new in the history of this country. The reality is that the culture of this nation allowed Rhodes to beget Smith and Smith to beget Mugabe. Over the last century we have developed a political culture that holds that our rights as individuals are subordinate to the wisdom of our great leaders.
Tragically this culture has permeated throughout society. Leaders are to be revered in all sectors of society; their actions are not to be questioned. This applies to leaders in many fields from Senior Partners in law firms to the headmasters and boards of schools. In the fifteen years that I have been back in Zimbabwe I am constantly amazed by the authoritarian attitudes shown by many leaders. I am often equally amazed by the unaccountability of leaders in all sectors of society. The unpalatable reality is that we have developed a culture of unquestioning trust in, and respect for, our leaders, especially our political leaders.
It is no surprise then that all the parties to the Lancaster House conference agreed to a constitution which allowed for excessive power to be granted to the executive. Whilst it is true that the Lancaster House constitution had a more balanced separation of powers than its post 1987 amended version, the fact remains that the original constitution always allowed for a dramatic shift of power to the executive. The original Lancaster House constitution never had effective mechanisms to block this transfer of power from the legislature and judiciary to the executive. No doubt this was agreed to because virtually all those who attended the Lancaster House conference hoped to be able to rule and to use the constitution to their own best advantage. The Zimbabwean public mutely accepted that because, in my view, of the belief that their political leaders were essentially good and would do the right thing.
In this regard it is interesting to contrast the position adopted by the framers of the Lancaster House constitution with the beliefs of the founding fathers of the American constitution. Madison writing in the Federalist Papers (number 51) wrote:
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection in human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Lord Acton in a letter to Bishop Mendell Creighton on the 3rd April 1887 wrote:
“Power tends to corrupt and absolute power corrupts absolutely”.
Both Madison and Lord Acton understood the tendency for man to do the wrong thing if given unfettered power. In other words both recognised that man has a natural bias towards doing the wrong thing if given an opportunity to do so. Because of white Rhodesians view that political leaders like Rhodes and Smith were near perfect, Rhodesians allowed constitutions which gave unfettered powers to its leaders. That attitude influenced the Lancaster House deliberations and resulted in a constitution for Zimbabwe which gave unfettered power to its rulers. The tragedy for Zimbabwe and President Mugabe himself is that he is now the product of that constitution. I believe that when President Mugabe first came to power he was well intentioned and was not corrupt. However he, like all politicians, was not an angel and was unable to deal with the absolute power granted to him. As a result during his tenure public office has systematically and increasingly been abused for profit.
The challenge for us as Zimbabweans in the constitutional debate is to recognise that far from having a culture of human rights which seeks to make our political leadership accountable to us, our society is characterised by an absence of this culture. Whilst it is encouraging to see the slow development of a human rights culture in this regard it is still in its infancy. There is a grave danger that the majority of Zimbabweans do not understand the link between unfettered power granted by the constitution and corruption. And there is a great danger in the constitutional debate that the ZANU (PF) hierarchy will exploit this naivety to subvert the debate: to concentrate the debate on declaration of rights issues rather than to focus on issues which relate to the diminution of power granted to the executive.
It is incumbent upon us as legal practitioners to recognise that there is this negative culture in our society which makes demi-gods of our leaders. We need to ensure that our future constitution has measures which counter this tendency; measures which counter the tendency to make demi-gods out of our political leaders, measures which encourage a culture which recognises that our political leaders are not special people, simply civil servants who are accountable to the electorate. If the constitutional debate is going to result in meaningful change to our nation it is accordingly imperative that the focus of the debate should be on redistributing power, moving power away from the executive towards the legislature and judiciary. The debate must concentrate on the limitation of terms of our political leaders, on implementing measures which ensure that our leaders do not have the opportunity to become demi-gods and which ensure that they become just as accountable to the electorate as any other citizen of Zimbabwe.
2. Culture of deviousness and tendency to obfuscate
Another historical reality of Zimbabwe is that power has often been obtained by political leaders through deviousness and trickery. Once again this goes back to Rhodes and the manner in which the Rudd Concession was obtained. There is no doubt that Rhodes and the colonials tricked Lobengula. Equally true is the fact that the deviousness of Rhodes was obfuscated by Rhodesians for decades. The politically correct interpretation of history was that Rhodesia had been colonised as a result of lawful treaties and that control was only gained over the entire country after those treaties were breached by Lobengula. The pattern of deviousness and obfuscation continued and indeed became more entrenched during the UDI period when sanctions were imposed on the country. In the white business and political community it was thought honourable to be able to break sanctions. An entire culture of deviousness was created as a result. Another casualty was transparency. If Rhodesia was to survive it was important that much of our business and political dealings should be veiled in secrecy. An entire generation of business and political leaders grew up knowing that as the only way to do business. And the black nationalist leadership was little better. The nationalist leadership ethic was moulded in the context of warfare. Guerrilla war dictates that one has to work behind a facade. There cannot be transparency in war; especially war waged using guerrilla tactics.
Both black and white Zimbabweans went through a few decades of understanding that there could not be transparency and that their leaders, to achieve their political objectives, would have to resort to devious tactics. It was this understanding which has developed a culture in Zimbabwe which I have spoken about above, namely that of unquestioning trust being placed in our leaders notwithstanding the fact that we do not know what they are up to. So it is also that Judges, Ambassadors, members of commissions of enquiry are appointed without the public having any idea as to their suitability for the job. Our members of parliament and cabinet ministers are not required to disclose their assets or sources of income. And this culture has spread throughout society.
As a nation we need to ask the question: can we say with any conviction that we have a culture of transparency and openness? I think not. I think the reality of our culture, black and white, is that we are often not committed to transparency in many of our dealings. We are often not committed to free and open debate.
In this environment it is no surprise that corruption has flourished. Once again as we approach the constitutional debate it is not as if we need a constitution which will protect pre-existing cultural norms which uphold in honest dealing and transparency. Because of the absence of regard for these ethical principles in society we have to design a constitution which will promote a positive culture, a culture which honours transparency, openness and integrity.
In this regard it is vital that the electronic media be opened up to promote open and frank debate on all manner of issues. It is equally important that we have a constitution which will impose systems on us which enforce transparent procedures for the appointment of Judges, Ambassadors, Heads of parastatals and the like. In the United States and other countries that role is given usually to the legislature. American Judges, Ambassadors and other people are subjected to scrutiny by the United States senate before their nominations by the executive are confirmed. We need the same mechanisms; we need public parliamentary investigation and open questioning of all who aspire to public office. And these mechanisms must be set out in, and guaranteed by, the constitution.
3. Judicial activism-part of our human rights culture?
Richard Turner, in his book “The eye of the needle” referred to above wrote:
“The structure of South African society today is a function of its past.”
The same applies to any country and of course Zimbabwe. Our judicial structure is certainly a function of Zimbabwe’s past. The hundred year history of the country is such that its judiciary, and legal system in general, has been perceived and very often has been (and is), simply an arm of government – an arm of government designed to protect the ruling elite at the expense of the interests of the majority. This reality was more obvious during the colonial era when white judges were clearly aligned with the white minority government. The stark record of the Rhodesian judiciary was that it upheld the status quo and was not the vanguard of a human rights movement. There were of course exceptions like Justice Tredgold; men who were not prepared to give legitimacy to an unjust system.
And it was not as if the Rhodesian judiciary had to perform the role it did. At the same time the Rhodesian judiciary was upholding the status quo the Warren Court in United States was engaged in judicial activism. The first African/American judge of the United States Supreme Court, Thurgood Marshall once said: “move, but move within the constitution, and find new ways of moving non-violently within the constitution, bearing in mind that there are many of us in this country who are not going to let it go down the drain”.
These remarks of Justice Marshall illustrate the commitment of members of the Warren Court to promote human rights. The Warren Court was lambasted by its critics for its judicial activism. The Warren Court stressed the rights of individuals and the breadth of changes brought by it was monumental. The Supreme Court, more so than the legislative and the executive in the United States in the 1960’s outlawed segregation, excluded illegally seized evidence in criminal procedure, entitled indigent criminal defendants to legal representation and restricted the right of public officials to sue the press for libel. This was achieved in a deeply conservative political environment where the majority of people were probably opposed to the civil rights movement and the development of a human rights culture. The point I’m making is that the Rhodesian judiciary did not seek to carve out a similar niche for itself. This was exacerbated by a legal profession which did not have a human rights culture. Very few lawyers were prepared to challenge the status quo and there were no human rights organisations in the colonial period formed by lawyers.
The situation has improved in Zimbabwe since independence. The 1980’s saw the emergence of a Supreme Court under Dr Dumbutshena which was judicially active. At the same time various human rights organisations emerged. Sadly in the 1990’s it has to be said that the Supreme Court has lost some ground. The High Court in particular has been undermined by what I term politically correct appointments; that is Judges have largely been appointed because of their obvious connections to ZANU PF or because of their obvious neutrality regarding human rights issues. Once again there are exceptions to this but the unpalatable reality is that there are probably a majority of Judges now who are not committed to judicial activism and the promotion of a human rights culture. The situation has been exacerbated by the executive’s will to dominate the judiciary which is well chronicled in constitutional amendments and the like. The judiciary in any country is always susceptible to this undermining.
Hamilton in the Federalist Papers (No.78) recognised this when he wrote:
“the judiciary is beyond comparison the weakest of the three departments of power; it can never attack with success either of the other two. All possible care is requisite to enable it to defend itself against their attacks. Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security”.
The new Chief Justice of South Africa, the Honourable I Mohamed, (the South African Law Journal Volume 115 part 1(1998) page 112) recently said:
“Unlike Parliament or the executive, the Court does not have the power of the purse or the army or the police to execute its will. The superior Courts and the Constitutional court do not have a single soldier. They would be impotent to protect the constitution if the agencies of the state which control the mighty physical and financial resources of the state refuse to command those resources to enforce the orders of the courts. Its ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity. No politician anywhere, however otherwise popular, would want to be seen to defy the order of a court enjoying within the nation a perception of independence and integrity; he or her future would then be at mortal risk. Judges therefore have a very crucial interest in securing and nurturing their reputation for independence and integrity. What judicial independence means in principle is simply the right and the duty of Judges to perform the function of judicial adjudication, through an application of their own integrity and the law, without any actual or perceived, direct or indirect interference from or dependence on any other person or institution.”
Justice Mohamed then went to illustrate the conditions necessary for ensuring that the judiciary is independent and occupied by persons of integrity. Amongst other things he advocates that the appointments of Judges need to be fair, transparent and reasonable. Judges’ salaries need to be fair and they must enjoy adequate tenure. They must enjoy adequate secretarial facilities. The composition of the judiciary should ensure a balance of gender, class and colour. The judiciary needs to be continually concientised to the problems of the marginalised. Judges need to ensure that justice is procedurally fair, and fair in its impact.
All of these comments equally apply to Zimbabwe. I do not believe it is an unfair criticism to say that whatever human rights culture our judiciary has is in danger of waning. The constitutional amendments since 1987 which have vested power in the President to determine the composition of the judiciary, together with the imbalance of power in favour of parliament and the executive have undoubtedly contributed to this situation. Accordingly if we are to promote a human rights culture within the judiciary we need to ensure that a new constitution enshrines the principles referred to by both Hamilton and Justice Mohamed. That will entail the public scrutiny of Judges before their appointments are confirmed. I have no doubt that that suggestion will be extremely unpopular in this country but it is a necessary measure if we are to promote a human rights culture. But the other side of the coin is of course that our Judges need to be made more independent. The constitution needs to ensure that Judges get equipment more appropriate to their jobs than Mercedes Benzes, which after all make them susceptible to political pressure (in the sense that they become aligned in the minds of the people with the ruling elite.) I am not sure that most of our Judges would necessarily have chosen Mercedes Benzes had they had more control over the allocation of their budget. In recent conversations I have had with High Court Judges complaints have been made to me about the inadequacy of libraries, a shortage of computer equipment and the need for more qualified research assistants. In the broader context of the legal system it is appalling that so little money is allocated to the publication of law reports. All of this can be achieved if the necessary constitutional protections are enacted. This in turn will preserve a human rights culture in our judiciary will in turn foster a wider human rights culture in society.
4. Do the Zimbabwean populace have a human rights culture?
Zimbabweans, black and white are among the most conservative peoples in the entire world. That is partly due of course to the tightly controlled electronic media that has dominated our political landscape and debate for the last thirty years. It is true in some respects that that conservatism works to our benefit. As I have stated above the term “human rights” is very subjective and what a person in Western Europe may consider to be a right may be viewed by a Zimbabwean quite correctly as criminal conduct. I, for example, have strong views against abortion on demand; I believe strongly in the right to life but my views in that regard would be held to be reactionary in the United States or Canada. I would hardly be recognised as a human rights activist in those countries; on the contrary I would be viewed with some suspicion. Indeed it is an indication of how deeply conservative Zimbabwean society is that a person like myself can be described in Zimbabwe as a liberal and a human rights activist. I have no doubt that in most western countries I would be described as a conservative.
The point is that when we come to debate the constitution we need to understand that the Declaration of Rights must not be viewed as a document which will protect a pre-existing culture of human rights in Zimbabwe. The reality of Zimbabwean society is that by and large we do not have a human rights culture (in a Western European or American sense) and therefore we need a Declaration of Rights which will enable the development of a culture compatible with the Universal Declaration of Rights and acceptable to the majority of our people.
I believe that one of the great dangers in the present constitutional debate is that the human rights fraternity will concentrate on a liberal declaration of rights. As I have said above ZANU (PF) is well aware of the conservative nature of Zimbabwean society and is ready to exploit that conservatism to subvert the entire constitutional reform process.
To give but one example let us consider the debate regarding the death penalty. I suspect that the vast majority of Zimbabweans are probably in favour of the death penalty. Their views in this regard flow from a simplistic understanding of judicial procedures in the country. Logically the majority of our people believe that if one man kills another and is found guilty he must therefore lose his life. We in the legal profession know the realities of the legal system: that often poor rural defendants will receive inadequate representation and that there is a much greater chance of poor rural black people than there is, say, of white, urban, wealthy people being sentenced to death. In other words people outside the legal profession have the naive belief that only guilty people are sent to the gallows. We in the legal profession know that the reality is sometimes far different. One of the reasons why I oppose the death penalty is because of the inadequacies in our legal system. I fear that innocent people may be sent to the gallows and as a result am quick to argue that the death penalty should be outlawed by our Declaration of Rights.
However I have no doubt that ZANU (PF) will exploit the conservative views of the electorate and its control over the media to entrench the death penalty. Accordingly as we approach the constitutional debate we need to bear in mind the fact that the human rights culture of Zimbabwe is at best a fledgling culture and at worst non-existent. Because of this we need to employ a wise strategy to ensure that human rights are adequately protected in the context of Zimbabwean society. So taking the death penalty debate as an example, I believe that rather than seek to outlaw the death penalty we should seek to build mechanisms into the constitution which introduce safeguards. For example I believe that we need to change the burden of proof in capital offences. The State should be required to prove its case beyond any doubt before the death penalty is imposed. Likewise the State should be obliged in terms of the constitution, to pay all reasonable charges of a legal practitioner of, say, not less than fifteen years experience to ensure the adequate defence of all people facing capital charges.
Time does not permit me to deal with other aspects of the Declaration of Rights. Suffice it so say that an extremely sensitive approach needs to be taken in tackling issues such as affirmative action, discrimination on the grounds of sexual orientation, women’s rights and citizenship rights. There is a grave danger that ZANU (PF) will exploit conservatism and its control of the media to bring about a Declaration of Rights which does not reflect universally accepted human rights values. My example of the death penalty is used to illustrate how the conservative views of the majority of the people can be accommodated and yet individual rights protected effectively at the same time.
I am generally envious of the South African Constitution and its Bill of Rights. In my view the ideal would be to push for similar rights to be included in our Constitution. But, as I have stated before, it is vital that we ensure that ZANU (PF) is not allowed to subvert the entire process by focusing on the Declaration of Rights to the detriment of the more fundamental changes that are required to the constitution such as the balancing out of powers between the three arms of the government.
Conclusion
A fairly gloomy picture has been painted of our present human rights culture in Zimbabwe, or rather the absence of it. There is no doubt that a human rights culture is emerging in Zimbabwean society but it will take decades to develop and strengthen. Given the economic woes of the nation it is no wonder that economic issues tend to dominate political discussions and human rights issues are usually dismissed as irrelevant to economic progress. However the reality of the world is that the strongest economies in the world are found in countries which have developed a deeply entrenched and respected human rights culture. It is a fact that the strongest economies in the world, namely those of North America and Western Europe, are in countries which respect universally accepted human rights. In contrast the countries with the worst economies are very often those with an under developed human rights culture. The Indonesian, Malaysian and other Asian tiger economies were, until recently, held up as examples of how economies could thrive in authoritarian regimes. Their subsequent collapse gives the lie to that argument.
We as legal practitioners in Zimbabwe have often fallen into the same trap of believing that we will prosper by focusing on our own businesses, on a positivistic approach to the law. Many legal practitioners in Zimbabwe have not understood the fundamental link between respect for human rights and strong economies. Legal practitioners in any country have a major role to play in legislative reform. All the more so do legal practitioners have an important role to play in any constitutional reform process. There is a window of opportunity in Zimbabwe to develop a Constitution which will promote the development of a strong human rights culture and consequently a strong economy. However that window of opportunity will not avail itself long and it is vital that we, as the Legal Profession, engage ourselves vigorously in the constitutional debate if we wish to practise in a country that will prosper in future.