• ZNSPCA Communique dated 09 October 2003
• JAG Open Letters Forum No. 161
• Zimbabwe food shortages feared
• ‘Coloured quota an issue with Zimbabwe team’
• Land grabs planned for polls
• Clean hands?
• Whose hands were dirty?
• Waiting For Death
• Diplomat in spat with Zim settlers

‘Coloured quota an issue with Zimbabwe team’

ADELAIDE, Australia: The issue of having a quota of coloured players in the
Zimbabwean cricket side has been a "bone of contention" within the team,
former skipper Andy Flower said here on Thursday.

Flower, in exile from Zimbabwe following his protest against the Mugabe
regime during the World Cup earlier this year, arrived here on Thursday to
play for South Australia in the Australian summer season.

The Zimbabwean players and officials have denied there’s a quota of coloured
players within the team to play Australia in the current first Test in
Perth, saying the side was chosen on merit.

The issue was raised by Flower’s former team-mate, batsman Murray Goodwin,
who said black cricketers got a "free ride" into the Zimbabwe team.

"That has been a bone of contention for a number of years," Flower said. "I
haven’t been involved in the Zimbabwe set-up for a while, but that has
certainly been an issue over the years.

"Some believe it’s the right way forward and some disagree. There are
various schools of thought and there has certainly been an element of it
over the years, and probably is now."

Flower said wicketkeeper and vice-captain Tatenda Taibu, who is playing
Australia in the first Test, and fast bowler Douglas Hondo, who missed
through injury, deserved their positions. "The guys that are there at the
moment are (good enough)," he said. "I have played some cricket with a lot
of those guys.

"Zimbabwe is a very young side, the sooner those guys get in there and face
up to stiff competition, the better. Guys like Taibu and Hondo have done
pretty well in short stints in international cricket and I hope they carry
on their learning experience."

Cape Town - Landless people in South Africa did not want to follow the
Zimbabwean route, but government is forcing them in that direction,
Mangaliso Khubeko of the Landless People's Movement (LPM) said.

Khubeka said at the publication of a report on the evaluation of land and
agricultural reform that there would be large-scale land seizures in South
African during next year's election.

"We will go to farms, not to the ballot boxes," he said.

"We say: No land, no vote! We will not support our government again. We
voted for them in the previous election because land would have been
reformed. But after ten years, nothing has come of those promises.

"Next year, we will make sure that landless people get property. We will
rather be killed than mislead. The government rather listens to rich white
farmers than to give attention to our case."

The LPM is a known supporter of president Robert Mugabe of Zimbabwe.

Sipho Khumalo of the union for labourers in agriculture, plantations and
related industries (Apawu), said government "should revise its land policy
soon or there would be a revolution. We cannot wait patiently indefinitely.
Government does not support the poor."

Professor Ben Cousins of the Programme for Land and Agricultural Studies at
the University of Cape Town, which conducted the study, said land policy
could be changed after the election as there was a lot of pressure for this
to happen at grassroots level.

"Land reform is unhealthy and at a cross roads."

The report found that land reform was progressing too slowly and only a
tenth of the expected land has been reformed.

However, two thirds of the more than 63 400 land claims have been concluded.

As Americans commemorated the tragic event on September 11, Zimbabwe
silently witnessed a major assault on human rights. On the same day the
Supreme Court dismissed ANZ's (Publishers of the Daily News) application
challenging the constitutionality of certain sections of the Access to
Information and Protection of Privacy Act (AIPPA). The application was
dismissed on the basis of the "Clean Hands" doctrine, in that the company
had failed to comply with the Act that requires all newspaper companies to
be registered by the Media and Information Commission (MIC). That decision
is remarkable because it represents a major setback to the protection and
enjoyment of human rights in Zimbabwe. With all due respect the Supreme
Court (the Court) may have erred in its reliance on the controversial "Clean
Hands" doctrine in a matter involving fundamental constitutional rights.
This article questions the suitability of applying this equity-based
doctrine and advances the argument that the doctrine is inapplicable as a
bar to constitutional remedies. This article assesses its implications and
concludes that the decision marks a dangerous precedent in human rights
jurisprudence in Zimbabwe.

THE "CLEAN HANDS" DOCTRINE

The doctrine traditionally emanates from Equity. According to Black's Law
Dictionary (2000) it is the principle that a party cannot seek equitable
relief or assert an equitable defence if that party has violated an
equitable principle such as good faith. It bars relief to persons who are
guilty of misconduct in the matter for which they seek relief. It is a
positive defence that is available where the complaint by the claimant is
equitable. Equity refers to a select set of remedies and associated
procedures and normally these equitable doctrines and procedures are
distinguished from "legal" ones. Normally equitable relief is generally
available when a legal remedy is insufficient or inadequate in some way. The
distinction between law and equity arose in England where there were
separate courts of law and of equity. These rights and procedures were
created to provide fairness, unhampered by the narrow confines of the old
common law or technical requirements of the law. It was recognised that
sometimes the common law did not provide adequate remedies to solve all
problems hence the creation of the courts of equity by the monarch. However
in modern days separate courts of equity have largely been abolished and the
same courts that may award a legal remedy have the power to prescribe an
equitable one. The doctrine of "Clean Hands" emanated from this branch of
justice called equity. However, with time certain aspects of equity were
imported into the law and one such import is the doctrine of "Clean Hands".
It is notable also that it is quite a controversial doctrine particularly in
the sphere of public law where the formulation is that the responsibility of
the state is not engaged when the complainant has acted in breach of the law
of the state. As an equitable rule extended to the domain of law, it is
necessary to be cautious when applying it particularly in cases where
fundamental legal rights are involved. The matter before the Supreme Court
was not a matter of equity but one where fundamental constitutional rights
were involved and the court ought to have taken caution in applying this
doctrine. Quite surprisingly, it was a unanimous decision meaning that no
single member of the bench saw anything amiss in the blanket application of
this doctrine and its implications in relation to the enjoyment of
constitutional rights.

ANALYSIS AND IMPLICATIONS OF THE DECISION

The decision has the implication of undermining the supremacy of the
constitution by relegating constitutional rights below the dictates of
parliamentary legislation. It makes a mockery of the constitution and
subjects citizens to the whims of the ruling party with a parliamentary
majority. The constitution is the fundamental law of the country with which
all legislation must comply. If legislation contravenes the constitution
citizens are entitled to approach the Supreme Court to strike out the
offensive sections. This is what ANZ did but the court accepted the State's
argument that since the ANZ had not complied with the registration
requirements of the law that they were challenging they had "unclean hands"
and the court could not assist them. The implication is that citizens must
first comply with a law even if that law violates their fundamental rights
guaranteed by the constitution before challenging it in court. The ruling
party can, at any time exercise its parliamentary majority to infringe
people's rights knowing fully well that they will be forced to comply as
they cannot approach the court unless they have done so lest they be tainted
with dirt for refusing to obey the law. It raises the question of whether it
is the constitution or an oppressive piece of legislation that they ought to
obey. It makes a mockery of constitutional guarantees of protection and
enjoyment of human rights to expect citizens to comply with infringing laws
first before challenging them.

There may indeed be situations where giving away the rights in compliance
with legislation will effectively close the door to the challenges against
the law. For example where a piece of legislation deprives one of his entire
property, if that person so complies, he will be left with no resources to
make a constitutional challenge. It does not make sense that when faced with
laws that violate their freedoms citizens should sit back and accept the
violation and then complain afterwards. The constitution specifically gives
citizens the right to approach the court to challenge the legislation and
without the help of the court the citizens will be left at the mercy of the
party with a parliamentary majority. In a situation where the ruling party
does not have the necessary majority to change the constitution, the ruling
party can always make parliamentary legislation that deprives people of
their rights thus circumventing the constitutional amendment process. They
can do so especially where they seek to effect certain measures that can
have lasting effects knowing fully well that by the time the people
challenge the constitutionality of the law they will have complied in order
to satisfy the "Clean Hands" doctrine to get access to the court. By then,
the state will have achieved, through parliamentary legislation, what it may
not do through the constitutional amendment procedure. The rule that forces
compliance before approaching the court primarily serves the interests of
the state and not the rights of men and women.

Further and in any event, persons who challenge the constitutionality of
legislation normally do so when they have been arrested for violating that
law. For example a person may be arrested under the Public Order and
Security Act for positive action that is deemed to violate the law. If that
person were to challenge the constitutionality of the section of POSA in the
Supreme Court, will the court seek to determine whether he has "clean hands"
before allowing him audience? For indeed, in terms of its reasoning in the
ANZ case, a party that has failed to comply with the law lacks clean hands.
It may be argued that in the ANZ case, the violation was clear and accepted
so the analogy does not fit in. However, using their line of reasoning,
assuming that the constitutional challenge is made after accused has been
found guilty by a trial court does it mean that the Supreme Court will not
give him audience simply because by reason of his guilt he has "unclean
hands"? Even an accused who has confessed to committing an offence is still
entitled to constitutional protection by the courts when he alleges that his
constitutional rights have been violated. Prisoners who have committed
offences against the state are still entitled to that protection despite
having so-called "unclean hands" for disobeying the laws of the state.
Clearly the constitution allows challenges against legislation at any point
and to use the "Clean Hands" doctrine to bar constitutional challenges would
seem to close the door to legitimate complaints that citizens may have
against oppressive legislation.

The decision of the Supreme Court seems to be "Lose your rights first and
then Complain later". Ideally the court must ensure that rights of citizens
are adequately protected by promoting their uninterrupted enjoyment. If a
party has an opportunity to ask the court's assistance to maintain the
enjoyment of rights before a piece of legislation is used to violate them
the court must take positive steps to ensure adequate guarantees are in
place. If there is a chance to stop the erosion of rights, the court must
actively curtail such erosion. The constitution becomes a worthless piece of
paper if the rights that it guarantees can only be enjoyed subject to
parliamentary legislation. ANZ was perfectly entitled to challenge a law
that had the effect of interrupting its enjoyment of constitutionally
guaranteed rights. With respect, it does not make sense to force a party to
comply with legislation that forces it to lose the very rights that it seeks
to protect. Quite reasonably, ANZ took pre-emptive action to safeguard the
enjoyment of its rights and it disclosed this to the court. Its conduct was
neither dishonest or improper. Prior to the legislation, ANZ was operating
within the laws of the country and when AIPPA was enacted it changed the
legal landscape by interrupting ANZ's rights. Surely ANZ was entitled to
challenge this interruption of its rights. At the time of challenging the
law it was operating legally and as its application was in terms of the
constitutional requirements, its lack of registration did not necessarily
make it illegal. Assuming that on the merits the sections of AIPPA were
found to be unconstitutional, what would be the positive result for ANZ,
other than for future purposes, when by complying with the legislation it
will have already lost rights for which it sought protection?

Some cases may be instructive to illustrate this point and how other courts
have dealt with similar problems. In the US case of People v Hawkins (1998)
the defendants had made an unsuccessful attempt to bribe a trial court judge
in a murder trial. They were subsequently found guilty and sentenced to
death. Later, they applied to have the decision set aside and have a new
trial on the grounds that their bribery attempt had compromised the fairness
of the trial. The judge that they had tried to bribe had not recused
himself. While the state accepted that under the circumstances the fairness
of the trial was doubtful it argued for the dismissal of their application
on the ground that the applicants had "unclean hands" having participated in
the bribery attempt which compromised the trial. The Illinois Supreme Court
rejected the argument and ordered a new trial indicating that the applicants
could not be sentenced to death in a case where constitutional guarantees of
a fair trial were doubtful. This constitutional guarantee could not be
compromised by the fact that defendants had contributed to the corruption of
the trial and therefore had unclean hands. The court emphatically rejected
the application of the "Clean Hands" doctrine in a case involving the
deprivation of a fundamental constitutional right. The fact that the
corruption of the trial was their fault did not mean that they would be
refused constitutional protection. An acceptance of the state's "Clean
Hands" argument would have meant executing the applicants for bribery since
it was clear that they had not been offered a fair trial as far as the
murder charges were concerned. There are other cases throughout the world
where progressive courts have held that where the surrender of fundamental
constitutional rights is concerned, the court's inquiry cannot be limited to
the "Clean Hands" of the complainant. The focus of constitutional rights
protection is not on the guilt of the applicant but the constitutionality of
laws or policies of the state.

Furthermore, although the court stated that the door is not yet closed to
ANZ's challenge, when its reasoning is taken to its logical conclusion ANZ
already has "unclean hands" because it has already violated the law. There
is no guarantee that the MIC will grant ANZ the licence to operate. Indeed
it may say that ANZ has unclean hands although if it does so, it would be
misapplying the doctrine of "Clean Hands". Assuming that they succeed at the
MIC, will their registration cleanse their dirty hands? But even if they are
deemed clean, they would have lost the rights for which they sought
protection. "Clean Hands", it would appear, is a judicial mechanism to force
citizens to comply with laws even if they doubt their constitutionality.
Instead of protecting citizens against infringement of their rights, the
court appears to be actively participating in the enforcement of oppressive
legislation. Assuming that their application at the MIC fails, will their
attempt to register cleanse their dirty hands? It is difficult to see how
the Supreme Court will allow ANZ to submit its application unless it
reconsiders the usefulness of its "Clean Hands" doctrine.

CONCLUSION

This case is not about the arrogance of the Daily News and its publishers
but it is about protecting the rights of citizens to approach the Supreme
Court for constitutional protection regardless of the state of their hands.
Indeed the guilty also deserve constitutional protection. The "Clean Hands"
doctrine is a useful principle in equity and some aspects of the common law
but its extension to the realm of constitutional law is worrying and
controversial. The area of fundamental rights is one that the courts must
safeguard to ensure that people enjoy their freedoms. In applying the
doctrine, the Supreme Court has taken a conservative approach to human
rights jurisprudence. Instead of actively safeguarding rights and the
constitution, the court is paying allegiance to parliamentary legislation no
matter how much it infringes on citizens' rights. When a party takes
pre-emptive action to safeguard its freedoms, the court must actively
facilitate that enjoyment. Its foremost duty is to uphold the constitution.
The court's decision has had the effect of not only denying ANZ its rights
by forcing it to submit to the law that it is challenging, but with the
closure of the Daily News, it has deprived the majority of the population
their freedom to access information and choice. Widely interpreted, the
"Clean Hands" doctrine will have far-reaching consequences on the protection
and enjoyment of fundamental constitutional rights in Zimbabwe. Its effect
is that before approaching the courts, citizens will be required to lose
their rights by compliance to oppressive laws rendering the enjoyment of
rights a nullity. Sadly, under that scheme, primary allegiance is no longer
to the constitution but to parliamentary legislation even if it violates the
constitution. The court ought to have been more careful before applying a
traditional doctrine of equity in a matter that involves fundamental
constitutional liberties. Not only for ANZ but also for those that purport
to champion the rights of men and women, this decision should be a major
cause for concern. After all, those with unclean hands should be careful
before they see the dirt on others' hands.

by Geoff Feltoe

Introduction

Human rights are those basic standards without which people cannot live in
dignity as human beings. Human rights are inherent and all human beings are
automatically entitled to these rights. These rights do not have to be
given, bought or earned. No one may deprive people of these rights. Human
rights are the foundation of freedom, justice and peace. Their observance
allows individuals and communities to develop fully. The development of
human rights has its roots in the struggle for freedom and equality
worldwide.

It is the duty of all judges to uphold the Constitution of Zimbabwe. Section
3 of the Constitution provides that the Constitution is the supreme law of
Zimbabwe and if any other law is inconsistent with this Constitution that
other law shall, to the extent of the inconsistency, be void. In Zimbabwe
the fundamental rights of Zimbabweans are enshrined in the Declaration of
Rights provisions of the Constitution. The Supreme Court in particular is
given the vitally important responsibility of ensuring the protection of the
fundamental rights of the people of Zimbabwe contained in the Declaration of
Rights. It is this court that has the primary function of deciding whether a
law is inconsistent with the Constitution.

The Supreme Court also is given extensive powers to provide appropriate
remedies to persons whose fundamental rights have been violated. In terms of
s 24 of the Constitution it has very wide powers to grant effective remedies
where a person’s rights have been or are being violated or where it is
likely that they will be violated in the future. (emphasis added)

All legislation passed by Parliament must conform to the Bill of Rights
provisions of the Constitution. If a legislative provision is inconsistent
with the Bill of Rights, the courts will declare it to be void and of no
force and effect. This function primarily vests in the Supreme Court. When
there are doubts about the constitutionality of new legislation, persons
affected should be entitled to obtain a ruling from the Supreme Court as to
whether or not the legislation is constitutional.

In the case of Associated Newspapers of Zimbabwe Pvt Ltd v Minister of State
in the President’s Office and Ors S-20-03 a newspaper company [“ANZ”] that
operated a large national daily newspaper, The Daily News, approached the
court for a ruling on the constitutionality of legislation imposing various
controls over the operation of newspapers in Zimbabwe. The court refused to
give a ruling on the merits, finding that the applicant could not be heard
on the merits because it was openly defying the law. The court said it would
be denied legal relief until it complied with this law. This article
critically examines the basis of this decision.

The chequered history of AIPPA

In 2002 the Access to Information and Protection of Privacy Act [Chapter
10:27] [“AIPPA”] was passed and came into operation on 15 March 2002. The
Access to Information and Protection of Privacy (Registration, Accreditation
and Levy) Regulations, 2002 (SI 169C of 2002) were gazetted on 15 June 2002.

The Parliamentary Legal Committee made an adverse report on the AIPPA Bill,
indicating that several of the provisions violated fundamental rights
provisions of the Constitution, but it withdrew this adverse report after
government agreed to make certain amendments to the Bill. The legislation
was fast tracked through Parliament despite vigorous opposition to it from
members of the main opposition party.

This new legislation proved to be extremely controversial and attracted
considerable criticism both inside and outside Zimbabwe. The critics saw the
legislation as an attempt to rein in the private media and subject it to
heavy-handed political control. ANZ obviously shared this view.

Following the outcry over this legislation, the Zimbabwean government
apparently gave undertakings to the Nigerian and South African governments
that it would repeal or amend this legislation. The Act was also very poorly
drafted and inevitably it had to be brought back to Parliament to be tidied
up. In 2003 an amendment Bill proposing extensive amendments to AIPPA came
before Parliament. Again the Parliamentary Legal Committee gave an adverse
report on this Bill, but again this report was withdrawn after government
agreed to withdraw or amend certain sections of the Bill. The Access to
Information and Protection of Privacy Amendment Act, 2003 (No 5 of 2003) was
approved by Parliament on 11 June 2003. However as at 18 September 2003, the
Amendment Bill as agreed to by Parliament had not been published in the
Government Gazette and accordingly it was still not yet law as at that date.

Several constitutional challenges have been mounted to AIPPA. Some of these
have been in response to criminal prosecutions brought against journalists
under the Act. One of these led to the striking down of a criminal provision
by the Supreme Court after the state conceded that the provision in question
was unconstitutional. The Independent Journalists Association of Zimbabwe
group also brought a case in the Supreme Court challenging various sections
of AIPPA that affect media practitioners; it is still awaiting the judgment
in this matter.

The response of ANZ to AIPPA

After the Access to Information and Protection of Privacy Act came into
operation, the ANZ believed that its fundamental rights would be seriously
prejudiced if it registered under the Act. It was of the opinion that if it
subjected itself to the controls contained in the Act its right to freedom
of expression would be drastically curtailed and it would be hamstrung in
disseminating information to its readers. It believed that the Minister and
the Commission responsible for applying the controls were partisan and
highly biased against the private media in general and the Daily News in
particular and that the controls would therefore be applied in a biased and
prejudicial way against it.

The ANZ did not, however, adopt the stance that it would simply ignore the
new law and dare the authorities to prosecute them. Instead it approached
the Supreme Court for a ruling upon the constitutionality of the law.
Essentially it challenged the provisions relating to the registration of
newspapers and control of newspapers by the government appointed the Media
and Information Commission. It also raised objections to the requirement for
registration that it disclose its private business operations and financial
details, and that it submit the curricula vitae of all its managers and
directors, and to disclose the political affiliations.

The Supreme Court decision

The Supreme Court decided that in terms of s 24(1) of the Constitution the
newspaper company had locus standi to challenge the constitutionality of the
AIPPA. However, it had openly defied the law by failing to register as
required by this law. This meant that the applicant had “dirty hands” and a
litigant with dirty hands will be denied relief.

In coming to this conclusion the court reasoned as follows: There is a
presumption that a law is valid unless and until a court of law declares it
to be invalid. Until a court declares the law to be invalid, it must be
obeyed. A citizen who disputes the validity of a law must first obey it and
argue about its legality afterwards. There is no difference in principle
between a litigant who defies a court order and a litigant who defies a law.
Dishonesty, fraud or moral obliquity is not an essential ingredient for the
application of the dirty hands doctrine. In the absence of good cause being
shown, the court will not grant relief to the litigant. The fact that the
applicant had disclosed to the court its defiance of the law was totally
inadequate to purge its contempt of the law. It was not impressed by
applicant’s assertion that it could not in good conscience apply to
register. The requirement to register was not blatantly unconstitutional and
the other impugned sections of the Act were not “totally repugnant.”
Additionally, the applicant’s company was apparently the only media house
that had refused to register on conscientious grounds and if the Act “was as
morally repugnant as the applicant would have the court believe one would
have expected more than one conscientious objector.” It was untenable for
applicant to contend that is not bound by a law it considers to be
unconstitutional. A situation where citizens are bound by only those laws
they consider constitutional is a recipe for chaos and a total breakdown of
the rule of law. A court of law cannot connive at or condone the applicant’s
open defiance of the law. The applicant was thus not entitled to be heard on
the merits of its constitutional challenge until it desisted from breaching
the law. It could either comply by submitting an application for
registration or desist from carrying on the activities of a mass media
service. Authority relied on by the Supreme Court In reaching its conclusion
that the applicant must be denied relief because it had dirty hands, the
Supreme Court relies heavily upon the English decision of F. Hoffman-La
Roche & Co A.G. & Ors v Secretary of State for Trade and Industry [1975] AC
293. [The decision in this case was upheld on appeal to the House of Lords
although Lord Wilberforce gave a dissenting judgment. The House of Lords
case is reported as of F. Hoffman-La Roche & Co A.G. & Ors v Secretary of
State for Trade and Industry [1974] 2 All ER 1128 (HL) ] The facts of the
Hoffman case were that the Monopolies Commission had inquired into and
reported on the profit levels of a pharmaceutical company. Based upon that
report, the Secretary of State had placed before Parliament a statutory
order requiring the company to reduce its prices and Parliament had approved
this order. The company informed the Secretary of State that it would not
obey this order. It claimed that the procedures of the Monopolies Commission
contravened the rules of natural justice and that the order itself was ultra
vires. The Secretary of State responded by claiming an interim injunction to
restrain the company from charging prices above the prices specified in the
order. The company was only prepared to submit to interim injunction if the
Secretary of State gave an undertaking to pay damages to the company should
the company succeed in its arguments relating to the invalidity of the
order. The court ruled that had the Crown been seeking to assert a
proprietary or contractual right, the normal rule in English law would have
applied, namely that the litigant would have had to have given an
undertaking to pay damages should the opposing party succeed in the main
action. It was different, however, where the Crown was seeking through an
interim injunction to enforce the law. Where the Crown has commenced
proceedings for an injunction to enforce the law in a manner prescribed by a
statute, the person against whom the injunction is sought would have to show
a strong case for granting the injunction subject to a condition that the
Crown give an undertaking to pay damages. This is because there is a
presumption of validity in respect of a statutory instrument. A statutory
instrument is, unless and until successfully challenged, the law of the
land. If and when it is successfully challenged it will be retrospectively
null and void. In the ANZ case the Supreme Court bases its judgment upon
dicta from Lord Denning in the Court of Appeal decision in the Hoffman case
at pp 321-322: The Secretary of State has made, under the authority of
Parliament, an order which compels the plaintiffs to reduce their prices
greatly. That order has been approved, after full debate, by both Houses of
Parliament. So long as that order stands, it is the law of the land. When
the courts are asked to enforce it, they must do so. . . . They argue that
the law is invalid, but unless and until these courts declare it to be so,
they must obey it. They cannot stipulate for an undertaking as to the price
of their obedience. They must obey first and argue afterwards. I would allow
the appeal and grant the injunction as asked without requiring any
undertaking from the Crown as to damages. From these dicta, the Zimbabwe
Supreme Court derives the principle that “ a citizen who disputes the
validity of a law must obey it first and argue afterwards.” With respect, it
is simply not possible to derive from the Hoffman case and the dicta of Lord
Denning the principle that the Supreme Court enunciates and proceeds to
apply in a case that involves a constitutional challenge. The Hoffman case
did not involve a constitutional challenge and the dirty hands doctrine was
not in issue at all. The main issue was whether the Crown was obliged to
give an undertaking to pay damages in the event of the statutory instrument
in question being later ruled to be invalid. It was in this context that the
court made its statements about the presumptive validity of laws, and the
obligation of the company to obey the law without stipulating conditions for
compliance. The courts in the Hoffman case certainly did not rule that a
person who is arguing that a law requiring compulsory registration was a
violation of his fundamental rights must first comply with that law before
he is entitled to a ruling from a constitutional court regarding the
constitutionality of that law. It should be pointed out that towards the
beginning of the Supreme Court judgment in the ANZ case, the court refers to
the legal arguments of counsel for first and second respondents. Counsel
argued that an Act if Parliament is presumed to be valid and constitutional
until the contrary is shown and where an Act is open to more than one
construction, the court will adopt the construction that will reconcile the
statute with the Constitution. A starting presumption of constitutionality,
however, does not lead on to a conclusion that a litigant must comply with a
law that he is arguing seriously violates his fundamental rights. If his
argument that the law is unconstitutional succeeds in court, he will have
rebutted any presumption of constitutionality and the law will be void. The
question is whether he is entitled to be heard by the court and have the
matter determined. It is disturbing that one of the main cases relied upon
by the applicant to combat the clean hands argument is not dealt with at all
in the judgment of the Supreme Court despite the fact that this case is far
more relevant than the Hoffman case. The case in question is Minister of
Home Affairs v Bickle 1983 (1) ZLR 99 (S), an earlier decision by the
Zimbabwe Supreme Court. This case involved Ministerial order made in terms
of Emergency regulations declaring the property of Bickle to be forfeited on
the basis that he was an enemy of the state. The main basis of the challenge
was that this order violated his constitutional rights. The Minister took
the preliminary point that Bickle had no right to approach the court for
relief as he had put himself physically beyond the jurisdiction of the court
and was therefore a fugitive from justice. The Supreme Court ruled that it
would only be in the most exceptional circumstances that the court would
deny a litigant access to the courts. Fieldsend CJ expressed this view as
follows at said this at 106C-D: [The argument of the respondent] involves a
misconception of the role of the Courts. Their duty is, of course, to
enforce the law of the land and to rule against or punish anyone who acts
contrary to it. But in the normal way they do this only in cases brought
before them to enforce the law, whether it be civil or criminal. If the
courts are to fulfil the obligations put upon them by the Constitution, they
cannot, save in the most exceptional circumstances, deny an aggrieved person
access to them. Section 18 (1) of the Constitution provides that every
person is entitled to the protection of the law and section 18 (9) provides
that every person is entitled to be afforded a fair hearing within a
reasonable time by an independent and impartial court or other adjudicating
authority established by law in the determination of the existence or extent
of his civil rights or obligations. He went on to say at 106G-H –107A: The
public policy consideration in this case appears to me to be governed by s
24 of the Zimbabwe Constitution. . . . This grants to any person who alleges
that the Declaration of Rights has been or is likely to be contravened in
relation to him the right to apply to the Supreme Court for relief. The
constitutional right of access should prevail unless it is plain that
contempt of which the applicant may be guilty itself impedes the course of
justice. As Denning LJ said in Hadkinson v Hadkinson [1952] 2 All ER 567
(CA) at 574: It is a strong thing for a court to refuse to hear a party to a
cause and it is only to be justified by grave considerations of public
policy. It is a step which a court will only take when the contempt itself
impedes the course of justice and there is no other effective means of
securing his compliance. The specific exceptional circumstances that the
court had in mind are dealt with earlier in the judgment. The first category
of cases where relief has been denied is those cases in which convicted
persons have become fugitives from justice. Such persons are denied the
right to proceed with their appeals if they have escaped from custody and or
have estreated their bail and become fugitives from custody. The court
points out that there are numerous cases in Zimbabwe and South Africa in
which the accused have been denied the right to proceed with their appeals
in these circumstances. It also refers to one civil case where in a civil
case a person was denied relief because, when he brought the civil case, he
had become a fugitive from justice whilst on bail pending appeal. Two other
cases where relief was denied are referred to. The first involved a person
who was denied relief because he had disobeyed an order restricting him to
restriction area and the second in which a litigant was denied relief
because she was in contempt of a court order. In the ANZ case, the applicant
was certainly not a fugitive from justice and it had committed no contempt
of court that itself impeded the course of justice. It was not a case in
which the State was seeking to enforce the law. Granted the ANZ had refused
to register, but the reason for this was that it believed that the
requirement of registration, together with the restrictions after
registration, was unconstitutional and violated its right to freedom of
expression. It therefore approached the Supreme Court hoping that the
Supreme Court would settle the matter by making a ruling on this matter.
This was surely not an exceptional circumstance where the litigant should be
denied access to the court. Cases from other jurisdictions on the clean
hands doctrine The clean hands doctrine has been rejected in a number of
constitutional cases from other jurisdictions. In United States of America
one important case is that of People v Hawkins 181 Ill 2d 41 NE2d 999 (1998)
In this case the defendants were being tried for murder. They had attempted
unsuccessfully to bribe the judge before whom they were being tried. This
judge did not recuse himself after the attempted bribery but proceeded to
find them guilty and sentenced them to death. The defendants then applied to
have the decision set aside and for there to be a new trial. The basis of
this application was that their attempted bribery of the judge had
compromised the fairness of the trial. The State accepted that the fairness
of the trial was doubtful in the circumstances but argued that the
application should be dismissed because the defendants had unclean hands, as
it was their act of attempted bribery that had compromised the trial. The
Illinois Supreme Court granted the application. It rejected the State’s
argument. The defendants had a fundamental constitutional right to a fair
trial and that right could not be taken away because they themselves had
compromised the fairness of the trial by their act of attempted bribery. The
constitutional right could not be taken away because it was their fault that
the fairness of the trial had been undermined. The defendants had not had a
fair trial and the acceptance of the State’s argument would have meant, in
effect, that the defendants would have executed for bribery. This American
case establishes that in constitutional cases the overriding consideration
must be to uphold the constitutional rights of a person and these rights
cannot be forfeited because he has dirty hands. There is also an important
decision from the European Court of Human Rights in the case of Van der Tang
v Spain (1996) 22 E.H.R.R. 363. In that case the applicant had complained of
the unreasonable length of pre-trial detention. The applicant had absconded
and evaded trial after being released on bail. The Spanish Government argued
that that the applicant was not entitled to bring a case against the very
State whose justice he had evaded. They referred to the “clean hands”
doctrine in international law, according to which the responsibility of a
State is not engaged when the complainant himself has acted in breach of the
law. The alleged violation of the Convention by the Spanish authorities
occurred before the applicant had absconded in breach of his undertakings.
While he remained “within [the] jurisdiction” of Spain, and in particular in
custody, the applicant was entitled to expect that the rights and freedoms
set forth in the Convention would be secured to him in accordance with
Article 1 of the European Convention. His subsequent act of flight, albeit
wrongful, did not render illegitimate his interest in obtaining from the
Convention institutions a ruling on the violation he is alleging. In the
light of these cases, the overriding consideration in the ANZ case should
have been to ensure that ANZ’s fundamental rights were not violated. The
Supreme Court could have ensured this by making a ruling on the
constitutional issues rather than refusing to hear them because of their
failure to comply with the very law it was challenging. Challenge before and
after prosecution It is well-established law that a person being criminally
prosecuted for contravening a law is entitled to raise the defence that the
law is invalid because it violates that person’s fundamental constitutional
rights. The person can ask the court dealing with the matter to refer the
issue of constitutionality to the Supreme Court for determination. On
referral the Supreme Court will have to decide this matter. It is obliged to
make a ruling because if it violates one or more provisions of the
Declaration of Rights, such a law is void and of no force and effect. See In
re Munhumeso & Ors 1994 (1) ZLR 49 (S). This would apply even if the accused
openly proclaims that he is not going to obey the law because he believes it
is unconscionable and violates his fundamental rights. If this person is
prosecuted for contravening that law, he is still entitled to a ruling from
the Supreme Court as to whether the law is void because it is
unconstitutional. The court cannot decline to decide the constitutional
issue because the accused person has acted in blatant and open defiance of
the law. This matter must be determined and the most appropriate court to
make this determination is the Supreme Court. Thus, in effect, a
constitutional challenge to a criminal provision freezes the criminal
process pending the determination by the constitutional court. Thus if a
prosecution had been brought against ANZ the newspaper would have defended
itself by challenging the constitutional validity of the provision under
which the prosecution was brought and the matter would have been referred to
the Supreme Court which then would have been obliged to make a ruling on the
issue of constitutionality. A person who believes that a new law is
unconstitutional and that compliance with it will lead to violation of his
or her rights should surely not be in a worse position that the person being
prosecuted under that law. Rather than wait for a prosecution, the ANZ had
approached the Supreme Court in order to obtain a ruling on the
constitutionality of the law. The ANZ did not simply ignore the requirement
to register under the law; it instituted a constitutional challenge to the
registration provision and various other provisions of the Act. It was
entitled to expect that the Supreme Court would decide whether or not the
provisions are constitutional. If the Supreme Court had ruled the law to be
unconstitutional, the paper would have been vindicated. If the Supreme Court
had ruled it to be constitutional, the paper would then have been obliged to
comply with the law. Just as the lodging of a challenge to a criminal
provision will halt the criminal process until the constitutionality of the
provision is decided, so too a constitutional challenge prior to a
prosecution under a law that contains penal sanctions for failure to comply
with it should freeze the application of the law until the constitutionality
of the law has been determined. Such cases should, of course, be dealt with
on a reasonably expeditious basis. Contempt of court and defiance of the law
The Supreme Court maintained that there was no difference in principle
between a litigant who defies a court order and a litigant who defies the
law. With respect, there is a considerable difference between a person who
refuses to obey a court order on the one hand and, on the other hand, a
person who declines to obey a law because he believes that compliance with a
law will lead to a serious violation of his or her fundamental human rights
and approaches the constitutional court for a ruling on this matter. In the
first situation a court has made an order and the person against whom it is
made is obliged to obey that order. In the second situation the person has
approached the appropriate court to seek guidance from that court as to
whether the legislative provisions violate his or her fundamental rights.
Effect of requiring compliance with law later ruled unconstitutional A law
that violates human rights unconstitutionally is null and void. To require
compliance with an objectionable law before any ruling on constitutionality
is given will mean that a person will only be able to obtain a ruling that a
law is void and of no force and effect after he or she has complied with the
law or has stopped doing something that he is constitutionally entitled to
do. This could result in grave prejudice and serious violation of a person’s
rights. Until the law is finally struck down as being unconstitutional a
person will lose his or her fundamental rights. These fundamental will be
regained when the law is struck down but in the meantime he or she may have
suffered serious harm. In the ANZ case the Supreme Court stated that ANZ
must first purge its contempt of the law. It could do so by registering or
it could “desist from carrying on the activities of a mass media service
illegally.” In other words, it either had to do the very thing it considered
to be a serious violation of its rights, namely register or it had to close
down its newspaper until the Supreme Court finally decided upon the
constitutionality of AIPPA which would be seriously financially prejudicial.
If the Supreme Court finally decided that the registration requirement was
unconstitutional the time and effort spent on registering would have been
wasted. There is an even greater problem. If a newspaper decides to seek
registration in order to be able to pursue its constitutional challenge
further, having initially declined to comply with the law, the body
responsible for deciding whether to register may refuse to register it
because it had seen fit to disregard the law and therefore had dirty hands!
The logical consequence of this approach is that a person may suffer grave
harm as a result being forced to comply with a law that is later ruled to be
unconstitutional or to desist from doing something by that law that he or
she is constitutionally entitled to do. For example, if a law ordered the
immediate closure of a newspaper simply because it had criticised
government, this would amount to an unconstitutional violation of the right
of freedom of expression and the newspaper should be able to challenge the
law without first complying with it. To take an extreme hypothetical
example, what if a law was passed requiring the Chief Justice to resign
immediately, without any hearing being held to investigate whether there
were good grounds for the forced resignation. What if the failure to comply
with this law was made a criminal offence and what if the law further laid
down that the Chief Justice must forfeit all his pension entitlements.
According to the Supreme Court’s ruling, the Chief Justice would have to
resign first and then approach the Supreme Court to have the law declared to
be unconstitutional. The response by the Supreme Court to this extreme
example, and to the previous example of the law closing down a newspaper,
would presumably be that the law is so blatantly unconstitutional and so
totally repugnant that it would not require compliance with the law prior to
ruling on its constitutionality. But as shown above, whether and to what
extent a challenged law is unconstitutional can only be reliably established
by delving into the merits of the case. Consequences of allowing
non-compliance pending constitutional determination The Supreme Court
asserts that it would be “a recipe for chaos and a total breakdown of the
rule of law” to allow a situation to prevail where citizens “are bound by
only those laws they consider constitutional”. It is submitted that deciding
the constitutionality of an impugned law in the sort of situation that
prevailed in the ANZ case would not lead to a breakdown of the rule of law.
As pointed out earlier, the ANZ was arguing that the requirements of the law
it was challenging violated its fundamental rights and the very act of
compliance with that law would be to surrender those rights. It therefore
asked the Supreme Court to determine this matter first. As pointed out
previously where a citizen refuses to obey a criminal law that he considers
to be a flagrant violation of his constitutional rights and he or she is
prosecuted under that law he or is entitled to challenge the
constitutionality of the criminal law. So too in the ANZ situation, the
challenger should be entitled to a ruling regarding the constitutionality of
the law. With respect, it is a misplaced concern that allowing
constitutional challenge without prior compliance in the type of situation
found in the ANZ case will lead to citizens generally to disregard laws
which they consider to be unconstitutional. The ANZ did not simply disregard
the law based on its own interpretation of the constitutionality of the law.
What it did was to back up its belief that the law was unconstitutional by
approaching the Supreme Court with detailed arguments, well supported by
authority, as to why it considered the law to be unconstitutional and asking
the court to make a ruling so the matter could be settled. Such
constitutional challenges are an expensive business and few persons can
afford to bring such matters so that few such cases are brought before the
court. When serious constitutional challenges are brought before the Supreme
Court, however, it is important in the public interest that the
constitutional issues raised be determined as soon as possible. There is
also a filter device to screen out frivolous and vexatious constitutional
challenges. In terms of s 24(4)(b) of the Constitution, the Supreme Court
has the power to filter out frivolous or vexatious constitutional challenges
without having to have hearings in respect of such cases. Thus if a litigant
brings a spurious constitutional challenge simply to avoid having to comply
with the law, the Supreme Court can throw out the case under this provision
without a hearing and can also award costs against the litigant. This is a
deterrent to spurious litigation. Procedural anomalies One of the key cases
upon which the Supreme Court relied in arriving at its conclusion in the ANZ
case was the case of F. Hoffman-La Roche & Co A.G. & Ors v Secretary of
State for Trade and Industry [1975] AC 293. This case was not referred to by
either counsel in their arguments in court and must therefore have been
found after the hearing by one of the Supreme Court during the process of
preparation of the judgment. Applicant’s counsel was not subsequently given
an opportunity to address arguments to the court about this case. This was a
very unfair because applicant’s counsel may well have been able to advance
compelling arguments to show that this case was not applicable to the
situation of the ANZ. (In fact, on close analysis this case does not support
the proposition for which it was used as authority by the court.)The
unfairness of this approach is highlighted by this statement by Dumbutshena
AJA in the case of Kauesa v Minister of Home Affairs & Ors 1996 (4) SA 965
(NmSC) at 973-974: It would be wrong for judicial officers to rely for their
decisions on matters not put before them by litigants either in evidence or
in oral or written submissions. Now and again a Judge comes across a point
not argued before him by counsel but which he thinks material to the
resolution of the case. It is his duty in such circumstances to inform
counsel on both sides and invite them to submit arguments either for or
against the Judge’s point. It is undesirable for a Court to deliver a
judgment with a substantial portion containing issues never canvassed or
relied on by counsel. By contrast, as pointed out earlier, no reference
whatsoever is made in the judgment to a Zimbabwean Supreme Court judgment
upon which applicant’s counsel placed heavy reliance. Blatant
unconstitutionality Although the Supreme Court declined to allow argue on
the merits of its constitutional challenge, it nonetheless made observations
about the strength of the constitutional challenge. The provision requiring
registration of newspapers, it said, is “not blatantly unconstitutional”.
“At worst”, its said, “its constitutionality is debatable.” It went on to
say: “Indeed the licensing of the media particularly the electronic media
has been adjudged constitutional in some jurisdictions.” In support of this
it cited the case of Athukorale & Ors v Attorney-General of Sri Lanka (1997)
2 BHRC 610. The various other sections impugned by ANZ, it said, were not
“totally repugnant and would need careful consideration to determine their
constitutionality.” What this seems to imply is that if the Supreme Court
had considered that the registration provision was “blatantly
unconstitutional” or the other sections challenged were “totally repugnant”,
it would have been prepared to make a ruling on the merits even though the
applicant had refused to obey the law. If this is what the Supreme Court was
implying, it is submitted that it would be very difficult to decide when an
impugned law reaches the threshold of being “blatantly unconstitutional” or
“totally repugnant”, bearing in mind that the litigant will be complaining
that his or her fundamental rights have been or will be violated. In the
present case the contention of ANZ was that not only the registration
requirement but also the various controls operated by a government appointed
body that constituted a serious violation of its fundamental right to
freedom of expression. The extent to which there was a violation of
fundamental rights can only surely be decided after listening to the
arguments from counsel and an examination of the merits. If the
constitutionality of a statutory provision is debatable, it needs to debated
before conclusions are reached. In any event, the descriptions “not
blatantly unconstitutional” and “not totally repugnant” are strange. Either
a provision is constitutional or it is not. It does not have to be
“blatantly unconstitutional” to be invalid. If something is repugnant it is
repugnant; it does not have to be “totally repugnant” to be objectionable.
At the core of the argument being advanced by ANZ was that the entire
statutory scheme of control over the print media was constructed so that it
could be used by the ruling party as a political weapon to silence or
completely hamstring the private media which in the past had been critical
of government and exposing wrongdoing on its part. It therefore was arguing
that the scheme as a whole would wreak havoc with its fundamental right to
freedom of speech, including the right to disseminate information to the
public. It was arguing that the Minister who was the architect of this
legislation had often publicly expressed his antipathy towards the private
press. This Minister appointed all the members of the Media Commission and
he had appointed persons likely to be biased against the private press. This
was the basis upon the registration and provisions that applied after
registration were being attacked. It was not just an argument that ANZ
should not be obliged to register; it was an argument about the nature and
extent of the control system contained in AIPPA. The starting point in any
discussion about state restrictions upon the media must be the importance
that is attached to freedom of expression. Freedom of expression is one of
the most precious of all the freedoms and is a vitally important right and
an indispensable condition for a free and democratic society. Freedom of
expression is an essential ingredient of a democratic society. The UN
General Assembly has said that it “is a fundamental human right and . . .
the touchstone of all other fundamental rights and freedoms.” This has been
accepted by courts around the world, including Zimbabwe and is incorporated
into democratic constitutions. The African Commission on Human and Peoples’
Rights has said freedom of expression is a basic human right, vital to an
individual’s personal development, his political consciousness, and
participation in the conduct of public affairs in his country. Paragraph 1.1
of the Declaration of Principles on Freedom of Expression in Africa ,
provides: Freedom of expression and information, including the right to
seek, receive and impart information and ideas, either orally, in writing or
in print, in the form of art, or through any other form of communication,
including across frontiers, is a fundamental and inalienable human right and
an indispensable component of democracy. Freedom of expression envisages
free flow of information in a society. Democracy can flourish only in
societies where information and ideas can flow freely. Free flow of
information requires that the press be free to disseminate information and
that the public have a right to receive information disseminated by the
press. In a democracy the press will operate as a watchdog on behalf of the
governed and will expose abuse of power, corruption and maladministration. A
democracy will allow a diversity of information and opinions to be
disseminated. Paragraph 3 of the Declaration of Principles on Freedom of
Expression in Africa, thus provides that freedom of expression “imposes an
obligation on the authorities to take positive measures to promote
 diversity” and this includes “availability and promotion of a range of
information and ideas to the public” and “pluralistic access to the media
and other means of communication.” In a democratic society the press should
only be subject to restrictions that are reasonably required in a democracy.
State registration of media institutions and other state controls over the
media can be, and often are used as a mechanism for political control. They
can be used to silence or unduly restrict sectors of the press that the
government perceives as hostile. AIPPA not only requires newspapers to
register with a state appointed body; it gives that body, which is appointed
by the Minister and is under his control, vast powers of control over the
print media It is strongly arguable that these provisions curtail the right
to freedom of expression to an extent that is totally incompatible with a
democracy. Although international law does not at present rule out purely
technical registration schemes, it is recognised that if the Government does
decide to require media organisations to register, this must be a purely
administrative matter, akin to company registration. The information
required should be lodged with an administrative body and registration
should be automatic upon the submission of the relevant documents. In a case
from Nigeria [Media Rights Agenda and Others v Nigeria, 21 October 1998,
Communication Nos. 105/93, 128/94, 130/94 and 152/96, para.52.] the African
Commission on Human and Peoples’ Rights had to decide upon the legality of a
legal requirement for newspapers to register, with discretion on the part of
the authorities to refuse registration. The Commission stated: A payment of
a registration fee and a pre-registration deposit for payment of penalty or
damages is not in itself contrary to the right to the freedom of expression.
The government has argued that these fees are ‘justifiable in any democratic
society’, and the Commission does not categorically disagree…. Of more
concern is the total discretion and finality of the decision of the
registration board, which effectively gives the government the power to
prohibit publication of any newspapers or magazines they choose. This
invites censorship and seriously endangers the rights of the public to
receive information, protected by Article 9.1. There has thus been a
violation of Article 9.1 of the African Charter on Human and People’s
Rights. Principle VIII of the Declaration of Principles on Freedom of
Expression in Africa on the print media states that: “any registration
system for the print media shall not impose substantive restrictions on the
right to freedom of expression.” Within the United Nations, the Human Rights
Committee has on several occasions made it clear that licensing systems for
either the press or journalists which afford discretion to refuse licenses
are contrary to the guarantee of freedom of expression. The Human Rights
Committee is the body officially responsible for supervising State
compliance with their obligations under the International Covenant on Civil
and Political Rights. Zimbabwe is a State party to this Covenant. In 1999
the Committee noted, in respect of Lesotho’s regular report that the
Committee was “concerned that the relevant authority under the Printing and
Publishing Act has unfettered discretionary power to grant or to refuse
registration to a newspaper, in contravention of article 19 of the
 Covenant.” [Concluding Observations on Lesotho’s Initial Report, 8 April
1999, CCPR/C/79/Add.106, para. 23.] Also in 1999 it expressed concern about
the newspaper licensing laws in Cambodia. [Concluding Observations on
Cambodia’s Initial Report, 27 July 1999, CCPR/C/79/Add.108, para. 18.] It
has been said that a technical registration scheme for mass media
organisations is compatible with the guarantee of freedom of expression only
if it meets the following conditions: • the authorities should have no
discretion to refuse registration once the requisite information has been
provided; • registration should not impose substantive burdens and
conditions upon the media; and • the registration system should be
administered by bodies which are independent of government. The last
criterion is important. It is now well established that any regulatory body
must be independent of government. Constitutional courts in several
countries have affirmed this point. This was pointed out in the very case
that the Zimbabwe Supreme Court referred in its judgment in the ANZ. In the
case of Athukorale & Ors v Attorney-General the Supreme Court of Sri Lanka,
faced with a Bill providing for a Broadcasting Authority, some of whose
members would be Government appointees, stated: Since the proposed
authority, for the reasons explained, lacks independence and is susceptible
to interference by the minister, both the right of speech and freedom of
thought are placed in jeopardy…We are of the opinion [that the bill’s
provisions] are inconsistent with … the Constitution. It is strongly
arguable that the Media Commission in Zimbabwe completely fails to meet
these standards. The Commission is not an independent body. The Minister
appoints all its members and he has control over it and can sack
Commissioners on vague grounds. The present composition of the Commission
strongly points to the conclusion that it is a partisan body and is not
independent. One further point must be made about the Athukorale case. The
Zimbabwe Supreme Court purports to use this case for the proposition that
registration of the media has been found to be constitutional in some
jurisdictions. It is correct that this case did accept that statutory
regulation of the broadcast media is not in itself unconstitutional.
However, there are legitimate reasons for statutory regulation of broadcast
media, provided that this is done on a non-political basis by an independent
body. One of these is the limited availability of broadcast frequencies.
Regulation of the print media cannot be legitimised by reference to the
justifiable need for regulation of broadcasting and all around the world it
is accepted that regulation of the print media must be far less
prescriptive. Conclusion The approach adopted in the ANZ case was not, as
claimed by the court, founded on “sound authority and practical common
sense.” The judgment does not cite any case law that lays down that in a
constitutional case, a constitutional court will deny an applicant the right
to obtain a ruling because it has declined to comply with a provision of a
law which it contends violates his or her rights. It is not a matter of
practical common sense that the court should decline to decide the matter on
the merits until the defiance of the law has been purged. In fact this
approach can produce grave injustice and serious harm.

BULAWAYO, Oct 10 (IPS) - It's been months since Noma, a cancer patient at
Mpilo, the largest government hospital here, has gone for radiotherapy.

The process is meant to stop the cancer in her leg from spreading. But five
months ago the only machine used by patients in three provinces -
Matabeleland, Masvingo and Midlands - broke down and there is no foreign
currency to import spares. Mpilo Hospital has also run out chemotherapy
drugs.

Furthermore, 10 of the 12 radiographers have left for better prospects
abroad, which means even if the radiology centre's machines were
operational, it would still be crippled by the staff shortage.

Now, Noma has to travel to Parirenyatwa Hospital, the biggest referral
centre in the country and only other major cancer treatment centre.

However, as the superintendent of Mpilo Hospital, Dr Juliet Dube-Ndebele
notes, most patients - including Noma - are too poor and cannot afford the
high transport fees for the 480 kilometre journey to Harare.

Specialist surgeon Chad Tarumbwa says there has been no cancer treatment in
the country for the past two years, due to machine breakdowns and a
perennial absence of drugs. Those who can afford it fork out a lot of money
to go to neighbouring Botswana and elsewhere or pay millions still, to get
treatment in private hospitals since the drugs are extremely expensive.

”The majority of people with cancer here are not being looked after. It's
only those whose cancer is amenable to surgery and it comes early enough for
us to operate, be it breast cancer and we remove the breast. But there is
still no follow-up treatment,” Tarumbwa says.

”That is a disaster because AIDS itself and HIV also increase the risk of
cancer,” he says. ”It opens up a whole lot of cancers that we didn't see
before.”

As Zimbabwe's political and economic crisis deepens, the health sector has
been one of the major casualties of a collapsed currency, runaway inflation
exceeding 500 percent, empty foreign exchange coffers and a massive brain
drain.

All categories of doctors, nurses and other health personnel have been among
the first to leave the country for better prospects in neighbouring
countries and abroad. Those remaining complain of inferior pay and
conditions of service and are frequently on strike.

While its own locally trained doctors emigrate, the government has relied on
doctors from Cuba to ease pressure in the crumbling public hospitals. The
latest contingent of 74 arrived in February this year.

In June 54 doctors, 11 pharmacists and three radiographers from the
Democratic Republic of Congo arrived in the country on a three-year working
programme underwhich they were deployed to provincial and district
hospitals.

But in a situation where the government is broke foreign doctors can only do
so much, not least because they are Spanish and French-speaking, in itself a
critical factor in rural outposts where even the official language English
is not well understood.

Throughout the country, patients - already reeling from the prevailing 70
percent unemployment and widening poverty - are also coming to terms with a
crumbling health service and the escalating price of available drugs which
have shot up by 1 000 percent in the last two months alone.

A shrinking economy has left only about one million Zimbabweans out of a
population of 12,5 million on medical insurance. Of those only about half a
million people are estimated to be actively using their medical aid
privileges.

”The macro-economic position of the whole country is not very good, so
budgetary constraints occur in the health sector,” says Dr Jimmy Gazi the
acting president of the Zimbabwe Red Cross. ”We have got shortages in almost
all the departments; we've shortages in theatres, shortages in the wards,
medicines, pharmacies and food.”

The government's failure to pay for coal which is used for heating hospital
boilers is one extra problem public hospitals have had to deal with. This
month a major central hospital had to have its food cooked at its sister
hospital due to lack of coal, which in turn also affected sterilization and
laundry.

Since Zimbabwe embarked on its controversial land reform programme three
years ago, food production has plummeted and the country has to rely on food
aid for half its population.

Malnutrition is now a growing problem, with most households unable to afford
three meals a day.

Severely disadvantaged are those living with AIDS. All they can afford are
painkillers and hardly the much-needed immuno boosting drugs whose cost per
month is several times an average salary.

Last month, the United States government launched a pilot programme a scheme
under-which non-Genetically Modified sorghum from the US will be milled in
Bulawayo and distributed at subsidized rates to households in low income
urban areas. If successful, the programme will be extended to other cities.

”The reason for this programme is that while most food aid is being
distributed in rural areas, it is clear that food insecurity has been
worsening in urban areas and that a major reason for this has been the lack
of access to food in markets,” said US ambassador Joseph Sullivan who
launched the programme.

The programme complements the rural-based food aid programmes by the World
Food Programme and other donors.

Signs of a deepening health crisis were sounded recently when Shangani
Hospital was reported to have turned away patients due to a lack of food.
Yet it is not the only health institution that can barely feed the large
numbers of patients mainly those living with HIV-AIDS.

The Brethren in Christ Church runs two hospitals and a similar number of
clinics in the southern provinces of Matabeleland. Its head, Bishop Danisa
Ndlovu, says the main challenge is in affording relish to go with the meal.

”Beef has become very expensive and so that leaves the patient with little
alternative but to resort to simple green vegetable and beans that are also
expensive,” he says.

Bishop Ndlovu adds that the problem ultimately boils down to a lack of
resources. Promised assistance from the government's supplementary budget is
yet to arrive.

In August, the government unveiled an emergency supplementary budget meant
to pay civil servants' salaries as well as the importation of food, seeds
and medicines. Equivalent to 840 million US dollars, the budget almost
doubled the existing budget.

Part of the health part of the budget was earmarked for the national blood
bank, the National Blood Transfusion Service (NBTS), particularly the
purchase of reagents for use in detecting signs of HIV and Aids, syphilis
and Hepatitis C in blood. But NBTS spokesman Emmanuel Masvikeni says funds
from the supplementary vote have not yet been allocated. ”We are very
cash-strapped and we don't even know how much we are supposed to get.”

About 75 percent of the blood collected by the NBTS goes to government
hospitals hence the organization cannot easily press the government to
approve market-based fees. ”What they can't give us by way of a fee increase
they give us by way of a grant,” Masvikeni says.

The NTBS is presently sitting on half its blood requirements partly because
school children, who account for the bulk of the blood, have just come out
of holidays. However, Masvikeni says too many bleeding sessions have to be
cancelled due to the prevailing fuel shortages and water rationing which
affects some schools in Harare.

A chilling vindication of the crisis in the country's health system was
borne by the recent announced that even before the advent of the rainy
season; about 700 people have already died from malaria. Last year, the
malaria season was particularly brutal due to avoidable bottlenecks in the
importation of drugs.

Just like they are affected the most by the prevailing crisis in the
country, rural people have to brace for another difficult mosquito season.

Dr. Tarumbwa acknowledges that sometimes all a doctor can do is watch a
patient die for lack of materials. ”They get to a hospital and there are no
drugs, no intravenous fluids, and they can't purchase them because they have
no money. You can watch a patient die.” (ENDS/IPS/AF/SA/HE/WJ/SM/03)

      The unionists, who included ZCTU president Lovemore Matombo and
secretary-general Wellington Chibhebhe, were released from custody after
being cautioned and told that the police might press charges later.

      "It was harassment, just pure harassment," Matombo said. "We always
knew that we would suffer intimidation and harassment. There was no
substance to their charges."

      A police spokesperson said the unionists would be charged under the
Public Order and Security Act.

      Matombo said the ZCTU would continue to demonstrate against high
taxation and inflation until Zimbabwe's budget was presented next month.

      "This issue isn't finished," he said. "We will continue with our
plans."

      ZCTU legal adviser Johnlife Mawhire said there had been further
arrests in the southern town of Chiredzi and in Chegutu, west of Harare.

      Matombo said it was not possible to say how many people remained in
custody countrywide.

      "There was a lot of brutality," he said. "In Bulawayo, four of our
members were beaten severely. Two were blindfolded by police and taken over
50km out of town before being beaten and left for dead in the bush. One
crawled to a main road and they were rescued by passers-by."