Is the Party Above the Law

via Is the Party Above the Law | Research Advocacy Unit 9 March 2015

Over the past 35 years Zimbabweans have witnessed a slow erosion of the rule of law, but this erosion has turned into a landslide since 2000. The hopes of 1980, so clearly expressed in the quote from Robert Mugabe below, now represent the broken dreams of all democrats.

“Only a government that subjects itself to the rule of law has any moral right to demand of its citizen’s obedience to the rule of law. Our Constitution equally circumscribes the powers of the government by declaring certain civil rights and freedoms as fundamental. We intend to uphold these fundamental rights and freedoms to the full.” (Robert Mugabe.1980)
This laudable view seemed only to apply when ZANU PF was not under any threat of losing its power to govern, for, once a viable opposition party emerged, all pretense at upholding the rule of law went out the window. Look at the two comments below by President Mugabe early in the new millennium:

“Let it be known that the courts in independent Zimbabwe do belong to the people for whose convenience and protection they were set up in the first instance.” (Robert Mugabe.2000)

“We will respect judges where the judgments are true judgments. We do not expect that judges will use subjectivity in interpreting the law. We expect judges to be objective. We may not understand them in some cases but when a judge sits alone in his house or with his wife and says ‘this one is guilty of contempt’ that judgment should never be obeyed. I am not saying this because we would want to defy judges. In fact we have increased their salaries recently. But if they are not objective, don’t blame us when we defy them.” (Robert Mugabe. 2002)

These comments and the attitudes that underpin them were the response to the undeniable threat to continued governance posed by the MDC. But now there is a new threat, from within the party itself, and a challenge that the party does not obey its own constitution, with the serious allegations that the president of the party, the Presidium, the Central Committee, and possibly all the constitutional amendments made at the ZANU PF Congress last year are invalid due to their unconstitutionality.

This is now challenged in court by Didymus Mutasa, not previously the most outstanding model of a disciple of constitutionalism, but nonetheless a citizen with a right to redress. And the response of the President is to threaten the courts once again.

If there is a magistrate or judge who will want to preside over this matter, then I would like to know where he/she went to school and where he/she got the powers to rule over Zanu PF,” (Robert Mugabe.2015)

The fundamental difference for the President in 2015 is that he signed into law a new constitution in 2013, and, unless he and ZANU PF amend this pretty smartly, they will have to deal with the challenge from Didymus Mutasa in terms of this new constitution. It will be both fascinating and worrisome to see how they will deal with the case. It is also worrisome that the ZANU PF government still sees the constitution as a loose-leaf folder, to be amended whenever it appears inconvenient. This is the clear conclusion to be drawn from the remarks of the Minister of Finance recently, and is the danger behind having a two-thirds majority in Parliament.

But in dealing with the Mutasa challenge, and constitutionalism, just consider all the following provisions of the constitution:
2. Supremacy of Constitution
(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.

68. Right to administrative justice
(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

69. Right to a fair hearing
(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.
(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.

85. Enforcement of fundamental human rights and freedoms
(1) Any of the following persons, namely—
(a) any person acting in their own interests;
(b) any person acting on behalf of another person who cannot act for themselves;
(c) any person acting as a member, or in the interests, of a group or class of persons;
(d) any person acting in the public interest;
(e) any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.

Now it seems to me that Section 2 of the Constitution make s it quite clear that no-one or no body is above the constitution, and this must apply to both the President and the party he allegedly leads. Section 68 makes it plain that every citizen has a right to administrative justice, which means redress through access to the courts, and applies to every situation in which a citizen might feel aggrieved at the decision of another or some juristic body, including the decisions of a political party. This is further elaborated by Section 69 and both sections together state unequivocally that the intention behind these sections is to ensure that citizens have the right to legal redress: even if their complaint might be misplaced, and will fail in the courts, they have this right. Finally, this right is further supported by Section 85, which points out that the right to redress can be personal, but can also be on behalf of others.
Essentially, no-one is above the law and everyone has the right to have their day in court, and, when Professor Jonathan Moyo and Patrick Zhuwao claim that no outsider may dare comment on the ZANU PF constitution or the goings on within ZANU PF, they should read the national constitution more carefully. And, as Derek Matyszak pointed out recently, commenting upon ZANU PF’s adherence to their own constitution, this is critical when ZANU PF’s apparent failure to adhere to their own constitution has such a direct bearing on way in which the national constitution will have to be applied in such an important matter as succession to the presidency.

So, for the President to once again suggest that some actions will be above the law flies in the face of the Constitution that he has sworn to uphold. However, constitutionalism and the Constitution seem irrelevant in our new feudal state, and an additional comment by the President says it all:

“Musangano wedu unozezesa (Our party evokes fear). So don’t worry about those who take the party to the courts,” (Robert Mugabe.2015)