THE GENERAL COUNCIL OF THE BAR OF ENGLAND AND WALES AND

THE BAR HUMAN RIGHTS COMMITTEE

 A Place in the Sun: A report on the state of the rule of law in Zimbabwe after the Global Peace Agreement September 2008

Desmond Brown QC speaking note, Tuesday, 29 June 2010, 11am – 12pm Committee Room 1, 1st Floor, House of Lords

Responsibility for the content of this report, and the views expressed within, lies solely with the General Council of the Bar and the Bar Human Rights Committee.

 * Thanks to Lord Steel for hosting this occasion, and thanks to all of you who have come to the launch of “A Place in the Sun” – a report on the current state of the rule of law in Zimbabwe, a country that means so much to each one of us.

  • Delighted that representatives of both the Commonwealth Lawyers Association and Avocats sans Frontieres are here this morning.
  • I am grateful, too, to Henry Bellingham MP, the Minister for Africa, who has agreed to see us in July to discuss our Report.
  • Finally, admiring thanks are due to Andrew Moran, who undertook the drafting of this report – the second occasion he has assumed such a task.

This is not the first such report. Six years ago, in April 2004, five leaders of the Bar from around the world visited Zimbabwe and produced a report whose contents were approved by the Law Society and Bar Council of Zimbabwe.

  • They told a story of judges being driven from office or corrupted, and of a legal system which had been subverted by the ZANU-PF government in an effort to frustrate the proper working of democracy and hold on to power.
  1.                 “Their efforts are continuing”, the report concluded.
  • Last year, Mark Muller QC of the Bar Human Rights Committee suggested to me that we should pay a further visit in order to examine the current situation in the aftermath of the Global Political Agreement of September 2008.
  • We were particularly interested to see how effective the Transitional Government combining ZANU-PF with MDC Ministers and with Morgan Tsvangirai as Prime Minister had been in realising the aspirations of the Short Term Emergency Recovery Plan (“STERP”) of March 2009.
  •  If you wonder why we chose “A Place in the Sun” as the title of our Report, they are words taken from STERP. Amongst what STERP called its “key priority areas” were reforms intended to promote “governance and the rule of law”.
  1.                 STERP’s outcome was expressed to be more than the rehabilitation of the economy – it was “to lay the foundation of a basic African state that will find its place in the sun, play its role in the Southern African Development Community, the African Union and the rest of the world”.
  • The mission led by Mohamed Husain, the South African President of the Commonwealth Lawyers Association, and myself, which visited Zimbabwe between 24 October and 4 November last year consisted of barristers from the Bar Human Rights Committee and Flemish and Dutch members of Avocats Sans Frontières.
  • Our group shared the approach of the five Bar Leaders (including Stephen Irwin) who visited Zimbabwe in April 2004. We accept that land distribution as such is a matter for the democratic decision of Zimbabweans. What gives rise to concern is when “land distribution [is used] as a weapon to subvert the legal system for the purpose of maintaining political power”.
  •  As part of STERP, the Unity Government undertook “to conduct a comprehensive, transparent and non-partisan land audit” to establish farm ownership. Regrettably no such audit has yet taken place.
  • The Government also agreed to “enforce law and order on farms including arresting any further farm invasions which disrupt farming activities.” There is currently no sign of that whatever.
  •  As we drove into Harare from the airport last October, we must have all wondered whether we had come at a good time or a bad. As it turned out, the answer was both.
  •   It was a good time for us to understand the scale of the problems which confront the former bread-basket of Africa, but a bad time for the people of Zimbabwe. 
  •  In the week before our visit Morgan Tsvangirai had partially disengaged from the Unity Government until such time as the MDC were satisfied that the Global Political Agreement was being properly implemented by President Mugabe and ZANU-PF.
  1.                 A particular cause of concern was the unilateral appointment of the controversial Johannes Tomana as Attorney General.
  2.                Another was the recent arrest on remand in Mutare and indictment on terrorism charges of the MDC nominee as deputy Agriculture Minister, Roy Bennett. This was a prosecution pursued with particular enthusiasm by Mr Tomana.
  • 48 hours before we arrived, on Thursday 22 October, ZANU-PF responded to the disengagement with a raid by over 50 police on the MDC’s guest-house in Harare.

 The police claimed to be looking for AK 47 rifles alleged to have been stolen from the Army Barracks in Harare. They ransacked the house, and the caretaker was forced to dig up the garden with his bare hands in the supposed search for the weapons.

A diary of the visit:

A daily diary of the week of our visit gives some idea of the current state of the rule of law in Zimbabwe:

  •  Saturday 24th October: The Head of the Legal Aid Directorate announced that it was on the brink of collapse because of lack of funding.  So dire are the problems that money is not even available for the bus-fares for officers of the Directorate to travel out of Harare to provide legal aid to those in need. Such were the consequences that the news even made it into the Government-run “Herald” newspaper.
  •  Sunday 25th: The Chairman and Chief Executive of the National Association of Non-Governmental Organisations, the umbrella organisation for the country’s charities, were arrested travelling to a government-organised conference in Victoria Falls on the subject (ironically) of access to justice. They were held in custody for two days on a charge of attending a public meeting not authorised by the police.
  •  Monday 26th: Because the MDC were not willing to attend the regular Tuesday Cabinet meetings, Mr Mugabe and Mr Tsangvirai met face to face, but failed to resolve the deadlock. The MDC announced afterwards that the parties were “worlds apart”.
  •  Tuesday 27th: An attempt was made to abduct the MDC Security Administrator on a street in Harare by men who bludgeoned her with AK 47s and tried to force her into a car. A well-built woman, she managed to fight off her assailants with the aid of passers-by. At a press conference called later that day we saw for ourselves her abrasions.
  •  Wednesday 28th: The UN Special Rapporteur on Torture, Dr Manfred Novak, was detained on arrival at Harare Airport, and kept there overnight before being placed on the first plane back to Johannesburg. Ironically, he had flown in on the same plane as the Southern African Development Community foreign ministers seeking to resolve the impasse over the Global Political Agreement.  Dr Novak said that he had received alarming reports of violence in rural areas – of both intimidation and torture.
  •  Thursday 29th: We travelled to Mutare on the Mozambique border to speak to a group of some 16 lawyers, each of whom had suffered harassment and sometimes arrest in the course of pursuing their professional duties. One of the participants told me when it was over that she had fully expected the meeting to be broken up by the Central Intelligence Organisation.
  1. This was far from alarmist – one of the lawyers we spoke to, Mordecai Mahlangu, a former President of the Law Society was arrested in Harare on 2 November and kept in custody overnight for doing no more than telling the Attorney General that his client would not be giving evidence against Roy Bennett in accordance with a statement acknowledged to have been obtained under torture. Just as remarkably, in March 2009 police arrested a Mutare magistrate for criminal abuse of office, after he had granted Mr Bennett bail.
  •  Friday 30th : Two black farm workers and a child were shot and severely wounded at a farm north of Harare, when so-called “war veterans” invaded a white-owned farm and burnt eight of the workers’ homes.
  • So, if that is the present, what of the future? We spoke to the former Chief Justice, Tony Gubbay, who resigned in March 2001 after his Court was invaded by a mob, which then went off to lunch at the ZANU-PF HQ. He sees little cause for optimism, as was clear when he spoke at the Inner Temple last December.
  • Nor does Beatrice Mtetwa, who speaking in March this year about the evidence that Zimbabwe’s judges and prosecutors are (with notable exceptions) taking orders from ZANU-PF, said: “it has never been as bad as it is now”.
  •  The acquittal of Roy Bennett by Mr Justice Chinembiri Bhunu on 10 May is a cause for relief. In the current climate, one can understand all too easily why Mr Bennett said he did not expect it. As Morgan Tsvangirai told us, he was not so much prosecuted as persecuted.
  •  Meantime the Attorney General has applied for leave to appeal, perhaps encouraged by the Judge’s curiously inappropriate commendation of the state for “having put up a brave fight under very difficult circumstances in defence and preservation of a constitutionally elected government.”
  •  The appeal, of course, provides the government with an excuse for not swearing Mr Bennett into his ministerial office.
  • A particular concern of Morgan Tsvangirai, a man of heroic optimism, is his wish to see the Zimbabwean judiciary “independent again”.
  •  Their compromised position is apparent to all: it stems from the fact that virtually all of them have been provided with farms on licences, and those licences are terminable by the government at will.
  •   He is also concerned to see recognition by the Zimbabwean courts of the judgments of the Southern African Development Community (“SADC”) Tribunal, to which (as he pointed out to us) the country had even appointed a judge.  In no case is this more important than that of Mike Campbell, the mango farmer unlawfully thrown off his land, who is the subject of the widely seen documentary film “Mugabe and the White African”.
  •  Having submitted to the SADC’s jurisdiction, when the judgment went against it, the government then started to argue that the ruling had no status in Zimbabwe. Indeed, in January 2009 the Chief Magistrate put out a written instruction to all his subordinates instructing them that in handling land cases, they were to treat the SADC ruling as “not binding”.

Recent events add to the cause for pessimism:

  • Evidence of the abuse of the law to persecute MDC members has increased in recent weeks. Sometimes it has reached absurdity: an MDC-T member of parliament, Paul Madzore, was recently arrested on a charge of failing to attend court back in May 2007, when in fact he was being held on remand by the police themselves.
  •  Our recommendation that there needs to be a transparently composed and genuinely independent Judicial Service Commission to appoint all judges and the Attorney General has come into focus with the appointment by President Mugabe of a new Supreme Court Judge and four High Court Judges without the knowledge of, or any consultation with, the MDC whose deputy Justice Minister was kept in the dark.
  •  The new Judge President of the High Court, the retired Brigadier General George Chiweshe, is the former Chairman of the Electoral Commission which kept President Mugabe in power during the disputed election results of 2008.
  •  Another case for concern is the remand in custody of Farai Maguwu, the director of the Centre for Research and Development, which monitors human rights abuses in the Marange diamond-fields. Mr Maguwu’s arrest follows his handing an allegedly stolen military report on human rights abuses to the South African businessman, Abbey Chikane, who is the Kimberley Process monitor for Zimbabwe. Mr Chikane, who had controversially recommended Zimbabwe’s re-admission to the Process, then gave the report to the police.
  • Farai Maguwu was refused bail by Mr Justice Bhunu who referred to the crimes alleged as treacherous and abominable. Last Thursday (24 June), the Kimberley Process meeting in Tel Aviv failed to reach a final decision, so for the moment the ban remains.
  •  If any doubt remains about the lack of commitment of ZANU-PF ministers to the rule of law, one need only consider the recent advice by Didymus Mutasa to a group of squatters on a coffee plantation in Chipinge to ignore a court ruling that they vacate the land. On 15 June the South African Bar Council said that it had learnt of reports of this episode “with shock and dismay”. It urged the government “to take corrective action to avoid a total collapse of the judicial system in Zimbabwe.”

So what is the good news?

  • With so much cause for depression about the culture of impunity which has taken hold in Zimbabwe, one can only view with all the greater admiration the many courageous lawyers and civil society groups, who show by their daily lives that they still view the rule of law as integral to any democracy. If anyone can heal the wounds the country has suffered, they can. Fortunately it is they who ensure that the legal infra-structure remains in place.
  •  The lesson of our report is that to support the vital work of such groups, the Southern Africa Development Community and the international community as a whole (including, of course, the UK) has got to ensure aid targeted at bodies promoting the rule of law – including the Law Faculty of the University.
  •   In that way we can ensure that the sun on the cover of our report is a rising sun, and not a setting one.

Read the full report here