The Movement for Democratic Change (MDC) led by Nelson Chamisa has said it is is deeply alarmed and perturbed by the level to which the Rule of Law has been trampled upon by the Executive, the Army, Police, the National Prosecuting Authority and some elements of the Judiciary.
Innocent Gonese, the MDC Secretary for Justice and Legal Affairs said that the Rule of Law has been thrown into the dustbin. The statement comes amidst high levels of depravity, cruelty, callousness and downright disdain and contempt of the right of the citizens as enshrined in the Zimbabwean Constitution and statutes.
While Zimbabwe has had a history of serious violations of human rights starting from the years of colonial rule and repression and the epochs of Gukurahundi, Murambatsvina and the dark days of June 2008, Gonese said the people thought that the country had turned a corner in November 2017 with the demise of the former strongman Robert Mugabe.
“Sadly it has turned to be a false dawn. The actors may have changed with the removal of Robert Mugabe and some of his henchmen, but the script has remained the same if not worse. Mugabeism the system is with us and recent events are frightening to say the least. Zimbabweans yearn for a truly new order where the right of the individual, constitutionalism, the rule of law and justice are at the cornerstone of a New Zimbabwe. What has happened over the last few weeks is a negation of what our liberation fighters fought for and is a return to the dark ages. For starters the involvement of the army is on its own problematic and the situation is worsened by the reports and scenes of brutality which are there for all to see. The victimisation, sexual abuse and rape of women is inexcusable,” Gonese said.
The legal guru said the situation is compounded by the failure of the police to carry out their role in a professional, non-partisan manner as witnessed by the wanton disregard of the elementary rules of the game whereby Section 50 of the constitution is respected. People have been dragged from their homes and arrested randomly and may have appeared in court with gruesome injuries and the courts have not afforded them the due protection of the law.
Lawyers have raised serious issues of concern regarding violations of the rights of accused persons such as the right to be treated humanely and with dignity, the right to challenge the lawfulness of their arrest and most importantly not be detained for more than 48 hours before appearing in court. It is bad enough that some victims have been badly assaulted but for the prosecuting authorities and magistrate to take a cavalier approach and ignore such blatant violations is a new low even for Zimbabwe.
Gonese said the situation is compounded by what appears to be a choreographed and well scripted approach where bail applications are either not entertained or simply dismissed without the batting of an eyelid. Furthermore, some of the accused persons were not afforded the right to legal representation and where this was granted, the lawyers were not given adequate time to take instructions in order to adequately represent their clients.
Worse still, trials have been fast tracked even in circumstances where the defence has had no opportunity to be availed with the trial papers or even time to prepare their clients’ defence. While there is an adage that a justice delayed is justice denied, it is equally true to say that justice or is it injustice hurried is equally bad if not worse. It is trite law over time immemorial that bail is a right and that where the presumption of innocence operates, courts should lean favour of granting bail as long as the interest of justice would not be prejudiced. But refusing to even hear bail applications on the pretext that the state is ready for trial is unheard of and yet these are the disturbing reports that have been witnessed in our country.
In some instances where the dockets have been said to be complete, witnesses are nowhere to be found because they would be non-existent and some trials have commenced with the investigating officer testifying first because the evidence would have been manufactured and no direct evidence would be available.
“It is no wonder that a spate of acquittals have been witnessed in circumstances where the evidence clearly does not add up. But the unfortunate accused persons would have been subjected to needless incarceration let alone the indignity of being paraded as a criminal. Another disturbing aspect has been the arrest of juveniles and there are reports that some charges have been falsified. Our law gives adequate protection to such vulnerable groups but sadly this has been ignored for the expediency of maintaining the façade. The other bad phenomenon is the mass trials where large groups of fifties or sixties are being tried together in circumstances where it is evident that this could not have been properly witnesses and again it is done for purposes which are clearly at variance with real and substantial justice.
“The element of fast tracking of trials is also manifesting itself in unholy and ungodly hours during which some of the proceedings have been held. Lawyers have indicated that some trials have commenced after 5pm and gone well into the night with inadequately prepared lawyers who could not abandon their clients. But in some instances, the lawyers have found themselves in the invidious position that they could not proceed.”
Gonese argued that so gross and odd has been the behaviour of some magistrates that lawyers have sought their recusal but even in those instances where there was blatant manifestation of bias courts would not budge and they have proceeded with the cases.
“While we do not condone lawlessness and violence, one of the cardinal principles of our legal system is the right to legal representation as well as the presumption of innocence. The justice delivery system has been found wanting and we call upon judicial officers and the prosecution to introspect and reflect upon their oaths of office.
This is not a political issue but a fundamental issue which lies at the heart of constitutionalism. Justice and the rule of law. The game must be played fairly in accordance with the dictates enshrined in our constitution and ventilated over the years by our courts. When he opened the legal year, the Chief Justice dwelt on the theme of the Rule of Law and we are flummoxed and perplexed as to whether what we are witnessing is what he had in mind. Surely this cannot be and we hope and trust that all the vital cogs in the justice delivery system will depart from this frightening spectre that we have been witnessing. Pray the beloved country.”
