Justice system: Defining parameters; defying the perverse

Justice system: Defining parameters; defying the perverse



PROFESSIONS are generally opinionated, but none as opinionated as the legal profession. And there is a veneer of righteousness to that enormous self-centredness, reinforced by the apparent acquiescence of other professions to its wanton bullying.

It robes itself, in the process robbing all other professions of their shine. And the robes give lawyers an air of papacy, which is what probably makes them believe they are votaries of the god/goddess of knowledge.

Global positioning satellite

Yet whatever our professions, we all go through university education, emerging robed at the end of it all.

After that brief crowning ceremony, we discard those gowns, for more humble apparel, seemly and suited to the multifarious daily chores that preoccupy hard-working, unassuming, citizens. Not so with lawyers — learned friends — for whom modesty passes for ignorance.

And the phrase "learned friend" is both mutual congratulation and assurance, indeed an exclusionary code by a profession and skill that regards itself as a nonesuch.

As a society, we all get to know how well we are doing in infracting our laws by the number of gowned citizens we meet along First Street, laboriously journeying to the High Court.

To the man, to the woman, they make sure their professional GPS — global positioning satellite — plots their shortest route to the High Court, all the time carefully making sure the route takes them through this bustling mall: the only part of Harare where millions teem, where the perennial clash between men and machines, between feet and wheels, has been decided in favour of that toed limb which takes us about.

These our lawyers, walk with a swooping swagger, their tiny frames obeying measured steps that ruffle gently the draping black robes, marking their proud motion.

Always in tow, or running beside, will be an un-robed ruffian, clearly grateful and fixed to the helm this dark "Christ" — literally by step, symbolically by trial and fate.

In stark reversal to biblical logic, the pilloried ruffian carries his crucifix, and finally gets nailed on it the same day our "learned" friend - in the same dark robes - is getting counsel from yet another urchin-victim.

DCJ on Sadc Tribunal

This week, the legal profession came under extraordinary spotlight, which is why even I, a creature of darkness by name, seeks to focus my equally dark beam on it. I claim no expert opinion on this profession.

I do not need it to give my readers a commonsensical view of what the trouble is with this sector which in theory facilitates the coming of justice to all manner of men and women, avowedly without fear or favour.

That is not to say law officers do not fear, do not favour. But that is another matter for another day. Today’s business first.

On Monday, we had Deputy Chief Justice (DCJ) Luke Malaba making a remarkable statement in respect of the recent so-called SADC Tribunal judgement on Zimbabwe’s vexed land question. As an aside, I want to say we have exposed the Bench through our slow diligence. The Bench cannot accost cases, may not address matters that are not before it.

This is an age-old legal principle which makes the Bench both active and inactive in shaping and reshaping society.

I tried to get those in authority to appreciate the need to get some resettled farmer somewhere in the countryside, to approach the Supreme Court for an interpretation of the so-called SADC Tribunal ruling, against that of the Supreme Court itself, which appeared non-existent to the pseudo-SADC Tribunal in its deliberations on the matter.

The case for such a course of action is quite clear and obvious. You are a resettled farmer set to be affected by two judgements, one reassuring that you are a lawful occupant of the piece of land you have inhabited since our Land Revolution; another buffeting and suggesting you are ripe for eviction, for landlessness.

You are a serious farmer, intend on long-term investments on the property, but substantially made unsure by the ruling of what purports to be a competent court, again purporting to enjoy jurisdiction in the whole of SADC, and thus whose word shall be last and un-appealable.

I am sure such a case would have allowed the Bench to apply its full, collective mind on the matter in a way that would have reasserted the justice-is-sovereign notion, while putting the varying competencies of the two courts under searing spotlight.

I have not the slightest doubt which court would have come worse off, the same way I have no doubt which judgement guides me as part of new farmers.

We did not help the Bench, leaving it to take narrow advantage of the ceremony of opening the legal year to make a non-binding, yet fundamental position on a matter so grave as to make or unmake this society.

JP on transient politics

The same Monday, we had Judge President (JP) Rita Makarau making yet another landmark pronouncement (not judgement) on the profession. A few of us, she said, referring to judges and legal practitioners alike, "have allowed the transient politics of the day to affect the relationship between the profession and the Bench".

The profession stood polarised, she declared, lamenting: "The time-honoured duty of all legal practitioners to seek the truth and to assist the court at all times, has in some instances and on account of politics, been thrown overboard."

Clearly she spoke somunhu mukuru, carefully ensuring rampant infractions of cardinal ethics of the profession, nevertheless get pointed out with remarkable restraint and measure, if not understatement.

Led by the same instinct and the instantaneous anger that visit and guide most of us — especially against an obvious and ever snowballing ill — I am sure she would have put the same point furiously, by voice and by limb.

The vice she hit out at, is simply rampant, made more so by the seeming indifference of the Law Society of Zimbabwe. This cannot be in contention. I will return to that vital point, in fact the thesis of my instalment this week.

AG on own rights and obligations

On Tuesday, we had the new Attorney General (AG) Johannes Tomana making his maiden intervention in that same capacity.

While he may have pronounced himself on a specific matter, it is clear he was making larger points about the legal profession, especially how it is evolving nowadays.

His insistence on the role and rights of the Attorney General and his Office, a good 29 years after our Independence, and in a language implying interlocutors in the legal profession — not you and me the un-learned friends — clearly showed his position and Office were or are under challenge from within the legal profession.

He asserted his rights and role as Government’s chief lawyer who must lead public prosecutions and in ensuring there is no danger to the State and Nation.

Significantly, he did not appear to be addressing the Bench.

He appeared to be addressing defence lawyers, in the process implying they had gone beyond their mandate of simply raising defences for their clients, to one of counselling if not guiding and determining for the AG and his Office which cases to carry to the courts for prosecution, which to discard.

Again, you cannot run away from the fact that the AG was very measured in the face of what appears to be a serious doubt of his competence as a lawyer, and that of all those lawyers who fall under him.

I do not need to refer to the Gula Ndebele case against the Police which in reality became a case of a sitting AG against his own Office and officers.

To the extent that the former AG sought to withhold legal cover to a department of the same Government of which he was the principal law officer, all this in a case in which he was party, the role of an AG and his Office became quite confusing.

Far from being a freak, it became a sample of the contradictions I am referring to.

CJ on crass incompetence and ineptitude

On Wednesday, you then had a real bluster: by way of the Chief Justice (CJ) himself, angrily throwing out a constitutional case on grounds of "crass incompetence and sheer ineptitude of the applicant’s legal practitioners" who hurried to the Supreme Court without seeking leave to do so from a lower court in terms of the "peremptory" Section 24 of the Constitution.

The legal practitioners in question are not cub-lawyers. They have been at it for years and years, which is why probably the CJ’s threw the case out with an undisguised feeling.

Munhu mukuru kwazvo. Yet you perfectly understand his anger at the fact that sheer reckless disregard of elementary technicalities had had the unwholesome effect of delaying justice. Negligence by people who should help the court, and in fact have the legal wherewithal to do it. What has gone wrong in this very proud profession?

Au milieu

Simply put, the praxis of this vital profession will have to be understood au milieu, on the basis of the lived experience and climate in the Zimbabwe of today. And the milieu of the Zimbabwe of today is essentially defined by the peculiar politics that have shaped this decade, politics whose juridical consequences are only beginning to be apparent to those in charge of our courts.

Those of us who operate in the media identified the baleful effects of these politics way back, with those in authority putting in place instruments for dealing with the mischief.

Whether or not they are succeeding is another matter.

The point is they have come to terms with the source of the distortion.

The legal profession which seems to be facing a huge challenge of practitioners who, in the words of JP, "abandon their training and ethics", either may have been in denial for a long time, or may have stood constrained by the case-by-case approach which seems to bar it from making larger points beyond cases on hand.

A few years back, the Americans made it clear they were targeting both the legal profession and the judiciary to get tools for effecting regime change, the same way they would target the media and even churches for the same.

The impact of that whole effort in respect of both the media and churches is now well documented, thanks to the noises we have made, and the prosecutions which have taken place, involving personalities from these sectors.

Not so in the legal profession against whose politically resonant misdeeds we have all acquiesced, gagged either by its sheer aura, or by the very values set by those subverting the profession, principally the value of "judicial independence".

To question the integrity of conduct or decision of law officers appear a heinous undermining of "judicial independence"!

We never posed to ask why the same Americans who vaunt themselves for a catholic recognition of that principle at home, still find no contradiction in undermining it abroad, to aid and further their foreign policy goals.

Attacking the other pillar

The CJ, the JP and the AG just have to come to terms with the fact that the legal profession — across the board — stands cankered by perverse monied merchants of politics of regime change who have actively recruited from the legal profession.

The Americans, the British, have become un-acknowledged players in our justice system – for worse.

The judicial hierarchy has to come to terms with the fact that the Judiciary, itself a pillar of the same State under attack and red-flagged for "regime change", could not have remained un-attacked, above the current onslaught.

Is it not a fact that the term "regime" stands for a bundle of rules and values — laws in other words – which the courts themselves guard and uphold, all for the sake of "rule of law"? Is not the observance of rule of law the mark of civilised normalcy, something the British and Americans would want to see in smoke here?

Where a regime has to change, how possibly can courts be allowed to function normally by proponents of that regime change goal?

Don’t they become part of the regime that must change?

And where the Judiciary stumbles or is made to appear to have stumbled, does that not reinforce the case for international crimes and therefore prosecution?

Does that not help suggest a state of anarchy, and thus make a case for the reclassification of Zimbabwe as a failed state?

Indeed, Obert Gutu, himself an MDC legal functionary, makes this same point the same week of the above sentiments.

Red herring

Having realised the politics of the land make Zanu (PF) formidable nationally and internationally, the British, the Americans and their EU partners decided on a strategy of attacking the pillars of the State of Zimbabwe on grounds of offending against a set of democratic tenets.

The raging debate of freedom of expression was witnessed by all.

The equally raging debate on police actions and the observance of human rights is again well known.

The attack on institutions which dispense critical social services is well documented, all to suggest the State can no longer dispense those services for which it is founded, and of course to legitimise intervention on grounds of "responsibility to protect".

The current onslaught against the military — including seeking the physical elimination of senior officers — is clear for all to see. Overall, the attack is quite systematic.

Privileged crimes, rewarding suits

Within the legal profession, we saw the setting up of funds and institutions ostensibly meant for enforcement of human rights, especially after 2000. Before this date, there were no human rights worth defending in Zimbabwe, no funds expendable in their pursuit.

After 2000, there was enough reason, enough budgets for all that, leaving history with the burden of explaining why the loss of so-called white land and the realisation of threats to human rights
in Zimbabwe, coincided.

Today the legal landscape has changed dramatically, creating a new milieu for all involved. Certain offences or allegations stand privileged by way of the defence they are accorded, specifically the defends funds that are availed to them. What is more, we have law firms and lawyers who serially chase these cases, no matter what. When the white man controlled land — undisturbed — human rights cases where orphaned.

Law firms — and they were predominantly white — lived off conveyancing, only taking on cases outside of this rubric for public relations purposes.

After 2000, when the white man lost land, the so-called human rights cases have become the preferred domain.

And human rights cases definitionally are anything against Robert Mugabe, his Party, his Government or his officials.

Once you pick a case pitting you against this condemned chain, you are instantly privileged: by way of defence funds, defence lawyers, defence publicity and, yes, awards that await you after it all. And once the Judiciary showed it stood on the side of the landless, it became a target, both for attacks and for attempted corruption.

The attorney general’s office also came under attack, not helped by previous attorney generals who equivocated, and of course the State which did not seem to appreciate the role of a strong AG’s Office in its own defence and that of the Revolution.

The pound impetus

Which takes me to the nub of the matter. Everything must be wrong in the legal profession because its present impetus comes from resources earmarked for regime change.

Those forces for regime change have simply made it rewarding for any law firm and any lawyer to take up cases they deem politically important to the broad regime change agenda. Persistence, or more accurately, obduracy which the law deprecatingly terms "frivolous and vexatious", fetches high rewards and better prospects for recognition in the end. This most probably explains why litigation is unnecessarily drawn out and even bogged down in time-wasting technicalities, indeed why lawyers go against training, knowledge and ethics, if only to be seen to have put a drawn out fight.

Much worse, lawyers who represent these people facing high crimes, are themselves part of the continuum of regime change as direct actors. Many are on forums that are clearly subversive, and which were set up by the same forces who fund projects and activities that lend people in courts. Illustratively, most of these lawyers for people facing high crimes are in organisations like Lawyers for Human Rights, itself a face of the MDC. Others are office holders in the MDC or play an advisory role. They thus approach the court with hands already dirtied, eyes already coloured by their mere affiliation to these partisan platforms. Yet once in court they dare point fingers at judges for being partisan. It simply pays to represent the accused in high crimes. It brings fame to clash with judges and attack them for any matter you lose, often through sheer incompetence or politically inspired bigotry. That is what is wrong with the profession. And the incompetence must always express itself in unreasonable defence of the accused. Equally, partisanship is only defensible if it gravitates towards interests of powers of regime change. Which is why it is a crime for the Bench to get resources from the RBZ, itself a national institution and a part of a Government which must avail these amenities anyway, but perfectly right for lawyers to get money and recognition from foreign governments which are hostile to Zimbabwe.

Dawn of a new ethos?

Yet all is not lost. That the issues are now discussable, and what is more, introduced by senior judicial officers, means we are close to the endgame. This, together with a new Attorney General who seems stubbornly determined to challenge abuse of due process, should see sobriety returning. The third element which must come is that from the Ministry of Justice. There is great case for reforming the Law Society of Zimbabwe. I find it extraordinary that Minister Chinamasa allows himself to be responsible for a law that founds a body in which his Ministry is a minority by way of representation. How does he hope to influence this critical body which is supposed to enforce ethics of the industry? And is self-regulation the ultimate, the standard? Surely where it does not work – and evidence is galore that it has failed monumentally in the legal profession – then direct regulation must come into play. It already does in the media profession and Minister Chinamasa took this to Parliament. Why not for the legal profession where cases of misconduct clearly undermine public faith in the administration of justice? Besides, the Ministry clearly watched a very dangerous poacher turn herself game-keeper at the Law Society of Zimbabwe, which is why the centre cannot hold, will never hold under the present circumstances. Instead of fearing, the poacher is actually expanding her role, including creating and dishing out phoney awards named after legal luminaries, as happened just this week. The poacher is allowed, in other words, to preside over the shooting competition for game wardens. My foot!

Icho!





Justice system: Defining parameters; defying the perverse

PROFESSIONS are generally opinionated, but none as opinionated as the legal profession. And there is a veneer of righteousness to that enormous self-centredness, reinforced by the apparent acquiescence of other professions to its wanton bullying.

It robes itself, in the process robbing all other professions of their shine. And the robes give lawyers an air of papacy, which is what probably makes them believe they are votaries of the god/goddess of knowledge.

Global positioning satellite

Yet whatever our professions, we all go through university education, emerging robed at the end of it all.

After that brief crowning ceremony, we discard those gowns, for more humble apparel, seemly and suited to the multifarious daily chores that preoccupy hard-working, unassuming, citizens. Not so with lawyers — learned friends — for whom modesty passes for ignorance.

And the phrase "learned friend" is both mutual congratulation and assurance, indeed an exclusionary code by a profession and skill that regards itself as a nonesuch.

As a society, we all get to know how well we are doing in infracting our laws by the number of gowned citizens we meet along First Street, laboriously journeying to the High Court.

To the man, to the woman, they make sure their professional GPS — global positioning satellite — plots their shortest route to the High Court, all the time carefully making sure the route takes them through this bustling mall: the only part of Harare where millions teem, where the perennial clash between men and machines, between feet and wheels, has been decided in favour of that toed limb which takes us about.

These our lawyers, walk with a swooping swagger, their tiny frames obeying measured steps that ruffle gently the draping black robes, marking their proud motion.

Always in tow, or running beside, will be an un-robed ruffian, clearly grateful and fixed to the helm this dark "Christ" — literally by step, symbolically by trial and fate.

In stark reversal to biblical logic, the pilloried ruffian carries his crucifix, and finally gets nailed on it the same day our "learned" friend - in the same dark robes - is getting counsel from yet another urchin-victim.

DCJ on Sadc Tribunal

This week, the legal profession came under extraordinary spotlight, which is why even I, a creature of darkness by name, seeks to focus my equally dark beam on it. I claim no expert opinion on this profession.

I do not need it to give my readers a commonsensical view of what the trouble is with this sector which in theory facilitates the coming of justice to all manner of men and women, avowedly without fear or favour.

That is not to say law officers do not fear, do not favour. But that is another matter for another day. Today’s business first.

On Monday, we had Deputy Chief Justice (DCJ) Luke Malaba making a remarkable statement in respect of the recent so-called SADC Tribunal judgement on Zimbabwe’s vexed land question. As an aside, I want to say we have exposed the Bench through our slow diligence. The Bench cannot accost cases, may not address matters that are not before it.

This is an age-old legal principle which makes the Bench both active and inactive in shaping and reshaping society.

I tried to get those in authority to appreciate the need to get some resettled farmer somewhere in the countryside, to approach the Supreme Court for an interpretation of the so-called SADC Tribunal ruling, against that of the Supreme Court itself, which appeared non-existent to the pseudo-SADC Tribunal in its deliberations on the matter.

The case for such a course of action is quite clear and obvious. You are a resettled farmer set to be affected by two judgements, one reassuring that you are a lawful occupant of the piece of land you have inhabited since our Land Revolution; another buffeting and suggesting you are ripe for eviction, for landlessness.

You are a serious farmer, intend on long-term investments on the property, but substantially made unsure by the ruling of what purports to be a competent court, again purporting to enjoy jurisdiction in the whole of SADC, and thus whose word shall be last and un-appealable.

I am sure such a case would have allowed the Bench to apply its full, collective mind on the matter in a way that would have reasserted the justice-is-sovereign notion, while putting the varying competencies of the two courts under searing spotlight.

I have not the slightest doubt which court would have come worse off, the same way I have no doubt which judgement guides me as part of new farmers.

We did not help the Bench, leaving it to take narrow advantage of the ceremony of opening the legal year to make a non-binding, yet fundamental position on a matter so grave as to make or unmake this society.

JP on transient politics

The same Monday, we had Judge President (JP) Rita Makarau making yet another landmark pronouncement (not judgement) on the profession. A few of us, she said, referring to judges and legal practitioners alike, "have allowed the transient politics of the day to affect the relationship between the profession and the Bench".

The profession stood polarised, she declared, lamenting: "The time-honoured duty of all legal practitioners to seek the truth and to assist the court at all times, has in some instances and on account of politics, been thrown overboard."

Clearly she spoke somunhu mukuru, carefully ensuring rampant infractions of cardinal ethics of the profession, nevertheless get pointed out with remarkable restraint and measure, if not understatement.

Led by the same instinct and the instantaneous anger that visit and guide most of us — especially against an obvious and ever snowballing ill — I am sure she would have put the same point furiously, by voice and by limb.

The vice she hit out at, is simply rampant, made more so by the seeming indifference of the Law Society of Zimbabwe. This cannot be in contention. I will return to that vital point, in fact the thesis of my instalment this week.

AG on own rights and obligations

On Tuesday, we had the new Attorney General (AG) Johannes Tomana making his maiden intervention in that same capacity.

While he may have pronounced himself on a specific matter, it is clear he was making larger points about the legal profession, especially how it is evolving nowadays.

His insistence on the role and rights of the Attorney General and his Office, a good 29 years after our Independence, and in a language implying interlocutors in the legal profession — not you and me the un-learned friends — clearly showed his position and Office were or are under challenge from within the legal profession.

He asserted his rights and role as Government’s chief lawyer who must lead public prosecutions and in ensuring there is no danger to the State and Nation.

Significantly, he did not appear to be addressing the Bench.

He appeared to be addressing defence lawyers, in the process implying they had gone beyond their mandate of simply raising defences for their clients, to one of counselling if not guiding and determining for the AG and his Office which cases to carry to the courts for prosecution, which to discard.

Again, you cannot run away from the fact that the AG was very measured in the face of what appears to be a serious doubt of his competence as a lawyer, and that of all those lawyers who fall under him.

I do not need to refer to the Gula Ndebele case against the Police which in reality became a case of a sitting AG against his own Office and officers.

To the extent that the former AG sought to withhold legal cover to a department of the same Government of which he was the principal law officer, all this in a case in which he was party, the role of an AG and his Office became quite confusing.

Far from being a freak, it became a sample of the contradictions I am referring to.

CJ on crass incompetence and ineptitude

On Wednesday, you then had a real bluster: by way of the Chief Justice (CJ) himself, angrily throwing out a constitutional case on grounds of "crass incompetence and sheer ineptitude of the applicant’s legal practitioners" who hurried to the Supreme Court without seeking leave to do so from a lower court in terms of the "peremptory" Section 24 of the Constitution.

The legal practitioners in question are not cub-lawyers. They have been at it for years and years, which is why probably the CJ’s threw the case out with an undisguised feeling.

Munhu mukuru kwazvo. Yet you perfectly understand his anger at the fact that sheer reckless disregard of elementary technicalities had had the unwholesome effect of delaying justice. Negligence by people who should help the court, and in fact have the legal wherewithal to do it. What has gone wrong in this very proud profession?

Au milieu

Simply put, the praxis of this vital profession will have to be understood au milieu, on the basis of the lived experience and climate in the Zimbabwe of today. And the milieu of the Zimbabwe of today is essentially defined by the peculiar politics that have shaped this decade, politics whose juridical consequences are only beginning to be apparent to those in charge of our courts.

Those of us who operate in the media identified the baleful effects of these politics way back, with those in authority putting in place instruments for dealing with the mischief.

Whether or not they are succeeding is another matter.

The point is they have come to terms with the source of the distortion.

The legal profession which seems to be facing a huge challenge of practitioners who, in the words of JP, "abandon their training and ethics", either may have been in denial for a long time, or may have stood constrained by the case-by-case approach which seems to bar it from making larger points beyond cases on hand.

A few years back, the Americans made it clear they were targeting both the legal profession and the judiciary to get tools for effecting regime change, the same way they would target the media and even churches for the same.

The impact of that whole effort in respect of both the media and churches is now well documented, thanks to the noises we have made, and the prosecutions which have taken place, involving personalities from these sectors.

Not so in the legal profession against whose politically resonant misdeeds we have all acquiesced, gagged either by its sheer aura, or by the very values set by those subverting the profession, principally the value of "judicial independence".

To question the integrity of conduct or decision of law officers appear a heinous undermining of "judicial independence"!

We never posed to ask why the same Americans who vaunt themselves for a catholic recognition of that principle at home, still find no contradiction in undermining it abroad, to aid and further their foreign policy goals.

Attacking the other pillar

The CJ, the JP and the AG just have to come to terms with the fact that the legal profession — across the board — stands cankered by perverse monied merchants of politics of regime change who have actively recruited from the legal profession.

The Americans, the British, have become un-acknowledged players in our justice system – for worse.

The judicial hierarchy has to come to terms with the fact that the Judiciary, itself a pillar of the same State under attack and red-flagged for "regime change", could not have remained un-attacked, above the current onslaught.

Is it not a fact that the term "regime" stands for a bundle of rules and values — laws in other words – which the courts themselves guard and uphold, all for the sake of "rule of law"? Is not the observance of rule of law the mark of civilised normalcy, something the British and Americans would want to see in smoke here?

Where a regime has to change, how possibly can courts be allowed to function normally by proponents of that regime change goal?

Don’t they become part of the regime that must change?

And where the Judiciary stumbles or is made to appear to have stumbled, does that not reinforce the case for international crimes and therefore prosecution?

Does that not help suggest a state of anarchy, and thus make a case for the reclassification of Zimbabwe as a failed state?

Indeed, Obert Gutu, himself an MDC legal functionary, makes this same point the same week of the above sentiments.

Red herring

Having realised the politics of the land make Zanu (PF) formidable nationally and internationally, the British, the Americans and their EU partners decided on a strategy of attacking the pillars of the State of Zimbabwe on grounds of offending against a set of democratic tenets.

The raging debate of freedom of expression was witnessed by all.

The equally raging debate on police actions and the observance of human rights is again well known.

The attack on institutions which dispense critical social services is well documented, all to suggest the State can no longer dispense those services for which it is founded, and of course to legitimise intervention on grounds of "r