Landmark ruling gives glimmer of hope
“GREETINGS! Whereas under the terms of Section 50 of the Law and Order Maintenance Act… Blah-blah … certain powers vested in me… Blah-blah… now, therefore, I hereby direct that you be detained in Salisbury Maximum Security Prison until this order is revoked or otherwise varied by me. God save the Queen!”
This was a typical message delivered to President Robert Mugabe, Joshua Nkomo, Joseph Msika, Canaan Banana, Eddison Zvobgo, Daniel Madzimbamuto and several other nationalists by different officials of the Rhodesian settler government, which messages resulted in many of them rotting away in various jails and detention camps, with some like Morris Nyagumbo being locked away for as many as 20 years.
Under these unquestionable laws, President Mugabe himself was caged in for a good 11 years.
If anything, such harsh laws only served to harden the resolve of these nationalists to fight for the downfall of the settler regime, which all right-thinking people agreed made life in their motherland sheer purgatory.
It was in the background of such harsh laws that President Mugabe and his wife Sally (now late) were forced to flee Rhodesia in 1963 by walking through the bush for three days before crossing the Shashe river into Botswana.
All the nationalists were detained under the emergency laws promulgated on the eve of the regime’s flagrant rebel from the Queen’s authority, the Unilateral Declaration of Independence of November 11, 1965.
The emergency laws were to be buttressed by the Indemnity and Compensation Act of 1975 which law was applied retrospectively to give blanket indemnity to all security forces for any crimes they had committed from December 1972.
The law gave the security forces an open cheque to commit whatever atrocities they deemed necessary in the perceived interest of improving the security situation in Rhodesia.
At independence in 1980, the new government, citing what it considered a serious security threat posed by political groups that had lost in the elections — coupled with that posed by Apartheid South Africa — inherited Rhodesia’s repressive laws, with the emergency laws only being discarded in July 1990, a good 25 years after Ian Smith had put them in place.
Last week’s Constitutional Court (ConCourt) ruling declaring a notorious detention law illegal, was one small battle victory in the war to rid the country of a dangerous minefield of obnoxious laws that still conspire to make the lives of the country’s citizens difficult.
The full Constitutional Court bench headed by Chief Justice Godfrey Chidyausiku himself ruled that Section 121 (3) of the Criminal Procedure and Evidence Act (CPEA) (Chapter 9:07) — a law that has its roots in the colonial-era legislation — giving prosecutors a free hand to veto bail orders granted by courts, was unconstitutional.
For years, the law has been used wantonly by the State especially in cases involving members of the opposition and other “undesirable” elements.
In July 2010, the law was evoked to detain Didymus Mutasa’s son, Martin, his nephew Temba Mliswa and one George Marere in a case in which the trio was accused of trying to seize shareholding worth over US$1 million from a company owned by a white businessman, Paul Westwood.
A livid Mutasa, who was still in government back then, remarked: “That section must be there for correct usage not this kind of behaviour. Even if it was not my son involved I would have complained.”
Maybe by “correct usage” Mutasa probably meant that the law be applied only on opponents of ZANU-PF — both real and perceived — as he had kept quiet over the years when the same section of the law has been used countless times to keep opposition activists locked up even when bail has been granted by the courts.
The same law was to be used over and over again to make Mliswa a guest of the State in his several other cases in which bail had been granted in his favour.
The State has a rich trove of dangerous laws to dip into depending on each situation.
There is the Public Order and Security Act (POSA), Criminal Law (Codification and Reform) Act, the Access to Information and Public Protection Act (AIPPA), the Broadcasting Services Act (BSA), Censorship and Entertainment Controls Act, the Interception of Communications Act, Official Secrets Act and the Zimbabwe Broadcasting Act, among others.
Although the ConCourt has decriminalised defamation, which was provided for under AIPPA, efforts are currently under way to get the mother law repealed together with several others of its ilk.
AIPPA itself has since become an orphan after its godfather, former information minister, Jonathan Moyo, suddenly decided to disown it.
POSA (formerly the Law and Order Maintenance Act) has been widely used by the police to violently stop citizens from enjoying their right to association while the Interception of Communications Act is used by the State agents to spy on citizens’ communications.
Another killjoy law is Section 33 of the Criminal Law (Codification and Reform) Act (“the Criminal Code”), which criminalises free speech.
The Zimbabwe Lawyers for Human Rights (ZLHR) says since 2010, there has been a dramatic increase in the arbitrary application of law, whereby individuals have been charged with allegedly “insulting or undermining the authority of the President”.
The ZLHR says its lawyers have attended to more than 100 cases where citizens have fallen afoul of this law, but most of the cases end up fizzling out.
“In most of the cases the beneficiaries (of ZLHR’s legal services) have been acquitted. In other instances, clients have been removed from remand due to failure by the State to prosecute timeously,” ZLHR spokesperson Kumbirai Mafunda told the Financial Gazette this week.
“The constitutionality of this provision has been challenged on several occasions, on the basis that it infringes on freedom of expression, particularly for a public figure, and one who must be subject to scrutiny as a political candidate.”
In one bizarre case, a Harare woman, Cynthia Manjoro, was in 2011 detained for more than a year-and-a-half together with 28 other opposition MDC members accused of killing a senior police officer, Petros Mutedza, after police picked her up for use as a bait in their cruel effort to trap her boyfriend who was believed to be one of the suspects.
More than three years later, of the suspects, 21 were later acquitted while the case against another six has since floundered amid claims from the victim’s family that the murder was staged by State security agents.
Those acquitted of the crime have since instituted legal proceedings to get compensation from the State for the harrowing experience that they went through after being unlawfully arrested and detained.