(TALKZIMBABWE) Rule of law is not a political weapon

Rule of law is not a political weapon
Reason Wafawarova - Rule of law is not a political weapon
Sun, 07 Jun 2009 11:07:00 +0000

APART from trying so hard to make Zimbabwe a nation of mendicants where citizens are all supposed to fold hands in misery so articulately designed for the sympathy and empathy of Western donors, some in the inclusive Government have focused on the doctrine of the rule of law – particularly where we are told the so called Global Political Agreement has been violated.

The mendicants that made the nation believe that it is possible to have billions of US dollars worth of aid fall on the nation like manna from heaven have had to find an excuse why such a wonderful promise is taking so long to fulfil.

The major reason so far espoused is that Zanu PF has not subjected itself well enough to the provisions of the GPA, especially on matters to do with the appointment of the Attorney General and the Central Bank Governor.

This writer had reason to forgive one man this week after he asserted that the GPA clearly and specifically barred the appointment of Dr Gono and Mr Tomana in black and white “but Mugabe appointed them regardless”. This is the sense you get when people cite the GPA as having been violated by the appointment of these two men.

The Minister of Finance, Tendai Biti believes he has a job to do and by every indication he is one energetic man who many would want to have in any public office. It is not clear if the Minister has any better plan or strategy for his energy and vision other than to impress the gallery by being seen to be doing something and also hoping to “hunt and gather” from overseas coffers.

It appears Governor Gono may have been targeted for a political punch bag to give the gallery something to cheer about while we keep hoping that someone with more than enough money may be impressed enough to reward our Finance Minister with aid on our behalf.

It is Mr Tomana and not Dr Gono that this writer wishes to discuss this week.

The Attorney General has been accused of selective application of the law, trumping up charges against perceived political opponents and promoting “farm invasions”.

Any Attorney General anywhere in the world must be guided by the principle that people should be ruled by the law and obey it; that individual persons and governments shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.

Other than blanket accusations against Zimbabwe’s AG, mostly by people doing no more than sympathising with who has been brought before the law, not at all concerned about why that person has been brought before the law; there is no evidence that the AG has condoned or protected arbitrary actions from individuals or groupings.

This argument is based on the fact that other than some politicians and some sections of the media accusing the AG of partiality, there are no known complaints from aggravated parties that have been levelled against the AG in a court of law.

Many times we are told AIPPA and POSA are bad laws and the AG’s office is blamed vigorously each time a person is brought before the courts on charges related to these laws.

A Judge in the Supreme Court of British Columbia once said, “We do not get to pick and choose the laws we will observe and obey. Each of us must accept the rule of all laws, even if we have to hold our noses in complying with some of them.”

The Daily News blatantly ignored to register as a media outlet under AIPPA in 2003 and the paper has enjoyed sympathy from some quarters as a champion of lawfulness and a victim of lawlessness. The argument is that the media house was exercising its freedom of expression by defying the law and the ban was a violation of that freedom.

The Supreme Court of Zimbabwe ruled that the Daily News could not on one hand purposefully decide to defy a law upheld by the Supreme Court and on the other seek the same court’s protection. The Judge made the point that the media house was approaching the court with “dirty hands”.

The point here is we cannot judge the credibility of the AG on the basis that he presides over laws that we do not like, or laws we consider to be bad laws.

The Land Acquisition Act is a very popular piece of law among the majority of indigenous Zimbabweans, but is extremely loathed by others who feel the law robbed them of opportunity to accumulate wealth through a skewed land tenure that used to prevail in the country.

The AG is neither a good man because this law is a good law to some or a bad man because this law is a bad law to others.

The other argument that is coming up as arsenal against Mr Tomana is that he presides over a system that selectively applies the law among citizens. Indeed selective application of the law is an indefensible malpractice that has to be condemned unreservedly.

The dimension that is nonsensical is the advocacy that accused people must be freed on the basis that the law could have been applied selectively against them. If there is selective application of the law, the role of civic society, politicians, and human rights activists is not to free the perceived victims of selective application of the law but help the law catch up with the perceived privileged escapees.

When President Joseph Ejercito Estrada of the Philippines was on trial in 2001 on corruption charges his defence argued that the law had been applied selectively and detailed evidence of others who allegedly did similar acts as Estrada was provided.

The prosecution rebutted this by reasoning that the law’s selective application did not constitute a valid legal defence and therefore was irrelevant to the judicial determination of guilt or innocence. The argument here was it is no defence for a jaywalker to claim that nobody else gets arrested for the misdemeanour. The jaywalker may have been unfairly treated but he remains guilt.

The judge concurred with the prosecution on this and this is what any Attorney General would be forced to do when prosecuting those who violate the law. The AG cannot possibly stop prosecutions on the basis that some in the civil society and some political activists are alleging selective application of the law.

A valid legal defence must prove that the law may not only have been selectively applied, but also wrongly applied. This is what can stop a prosecution and not what we are told is the “letter and spirit of the GPA”.

It is inconceivable to imagine that the letter and spirit of the GPA is to have an AG who will set criminals free because he abides by a political opinion that other similar criminals may not have been arrested.

Countries are not run like that.

It is the role of any government in power, and so it is for Zimbabwe’s inclusive Government, to observe that though the law itself may be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, such denial of rights may constitute the prohibition of the Constitution.

This determination is made by the law courts when aggrieved parties approach the same courts.

If for example a local council ordinarily gives retail licences to residents who wish to operate tuck shops but chooses to deny one a licence because they do not like the person, such discrimination violates the Constitutional rights of the affected person, and Judges, being moral humans may act on discretion to order the granting of a retail licence to the person discriminated against.

The so called Global Political Agreement may sound grandiose and turgid because the qualifier reads “global” but surely that agreement is not the Supreme Law of the Republic of Zimbabwe. It is simply a governance tool setting goals, objectives and parameters of an inclusive Government.

It is therefore puerile for some people to keep waving this GPA document in the faces of magistrates, judges, the police and the Attorney General each time someone with friends in political circles is brought before the law.

The GPA cannot be used as a tool for political expediency and certainly not as a tool to ring-fence political opponents with a view to incapacitate them.

That can only create another big conflict as we saw in the last decade and one would think the agreement seeks to ensure that the conflicts of yesteryear do not recur.

Minister Biti sounds like a vindictive man on a mission to settle pre-meditated scores with some players in the inclusive Government, not least with President Mugabe himself. He calls it “a job to be done” and assigned to him “by the people”.

The idea of a lawyer with no known association with the world of economics standing (if not masquerading) as a finance minister may sound strange enough to many progressive people, but it is most puzzling when the same Finance Minister publicly declares that his “job to be done” is to “ring-fence” his political opponents. That kind of a joke cannot be funny for a country in such trouble as Zimbabwe is.

Politicisation of the Finance portfolio, as well as that of the judicial system and that of aid cannot in any meaningful way help the cause and intent of the inclusive government.

There is need for politicians to draw the line between effective governance and politicking, between policy and rhetoric and between ostentatious grand-standing and achieving.

The problem of external meddling in the affairs of Zimbabwe cannot go away for as long as we have some among us whose idea of politics is irascible radicalism.

This way the country is faced with dramatised next-to-nothing events being converted to world news so some people can look like monsters before the eyes of foreigners.

This is the polarity we all thought we had overcome when the inclusive Government came into place.

As Prime Minister Morgan Tsvangirai has reiterated over and over again, the inclusive Government is a project that cannot be failed. It is the bridging hope of Zimbabweans as we cross from the horrors of the last ten years into a future of rebuilding and reconstruction.

Zimbabwe we are one and together we will overcome. It is homeland or death.

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*Reason Wafawarova is a political writer and can be contacted on wafawarova@yahoo.co.uk reason@rwafawarova.com or visit www.rwafawarova.com