I REMEMBER one of the highlights of the week in village life was the Dare – the local customary court session where small local disputes were solved. In our community men and women would gather Pamatombo paHwara.
The place had a large number of rocks on which people could sit comfortably under the natural shade of the trees. It was here that many gatherings were held, including the popular independence celebrations.
Misangano yeParty (Party meetings) were also held here. Of course, there was only one party and that was Zanu PF.
Although the principal purpose of the Dare was to administer local justice, in a world without television or other sources of entertainment, it was in effect reality theatre which drew a lot of interest across the community.
It was particularly relaxing during the hard farming season when many days were spent in the fields, patiently tending to crops that struggled perennially in dry and sandy soils. This is the land that historical circumstance had bequeathed to us. It was dry for most of the time and I always felt its rewards were never commensurate with the amount of labour that we invested.
The Dare provided some comic relief in an otherwise monotonous drama played on the many fields between the villagers and their emaciated land.
The matters that came before our court provided fertile ground for much gossip, discussion and laughter. They ranged from the case of a peasant farmer accusing another of carelessly letting his cows stray into his maize field and destroying the crop to the more complex case of a pregnant girl accusing a boy of authoring her pregnancy.
A man would bring a case accusing another of straying into his home and committing adulterous acts with his wife. Witnesses were candid. The stories were juicy. There was a lot of drama. The audience would increase in proportion to the amount of dirty linen likely to be laundered at the session.
Although I cannot say it with certainty, I like to think my interest in law germinated in this environment. It was interesting to see the village elders, barely educated in the modern sense, nevertheless dispensing justice with great efficiency.
But what captured my interest most was the fairness and efficiency with which the cases were handled in this most humble of courts. The court’s decisions were generally respected. I like to think that the fair and reasonable way in which the court dealt with cases contributed to this culture of respect and compliance. If the court had been hostile and unfair, I think the community would have lost respect for its judgments.
When I later went to law school, I learnt about the principles of natural justice. It occurred to me that these principles were very much in keeping with the administration of justice that I had witnessed as a boy at the village court. There was nothing fundamentally new, except that the principles I was reading in the law texts were constructed in fairly sophisticated language – the Latin terms particularly drew our interest. We learnt them by heart and repeated them often to the admiration of our non-law contemporaries.
It sounds ridiculous and slightly embarrassing now but it was our poor way of demonstrating that we were ‘learned’ men and women of law! (The things we do in our youth!). But at the core, I knew that the principles were very much the same as the principles my elders had applied at the village courts.
I had observed that the village court placed emphasis on procedural fairness. The accused person was advised of the charge or case against him. It was explained to him so that he understood the nature of the allegation. It was important to give the accused a fair hearing. He was given adequate notice and time to prepare his defence. The court ensured that the accused was given a chance to make representations against the allegations. He was also given a chance to question his accusers. This is akin to the cross-examination in modern courts.
It was accepted that a person making a decision should declare any personal interest they may have in the matter and possibly recuse themselves. That follows from the principle that a person who is a party to the proceedings cannot sit in judgment of his own case. It reduces the risk of bias and unfair advantage.
Now, I think of my observations at the humble open-air village court and the conduct of some of our administrative and quasi-judicial bodies and it’s fair to say it leaves a lot to be desired. It’s the case in both the public and private sectors.
Employees are routinely suspended, without pay so that they have little if any resources to mount a defense against any allegations. Sometimes the senior manager who has a personal interest in the matter will sit in judgment of his accused subordinate. The attitude can be hostile and intimidating to the employee.
We have seen some of this conduct on a wider scale at the national administrative bodies. Newspapers such as the Daily News were closed and it’s clear that the relevant bodies failed to observe the principles of natural justice.
Indeed in one case, the court chided the then chair of the media regulator for sitting in judgment of the Daily News given his apparent bias. A number of mayors of various cities were driven out of office – again there was little evidence of the application of these basic principles of natural justice.
We also saw how bankers and other businessmen were hounded out of the country by threats of arrests at the peak of the financial crisis in 2004-05. Bank licenses were suspended or withdrawn at short notice and often without notice.
In many cases, individuals were declared ‘specified persons’ under the Prevention of Corruption Act. The ‘specification’ of an individual has drastic consequences for the freedom and general rights of that person. Given its drastic effects and potential for abuse, the specification of a person without notice violates the very basic notion of natural justice.
I have referred to the village court and the manner in which justice was dispensed to dispel one notion; the notion that the rule of law or these ideas of justice are alien to our society. Some people take the view that anything to do with the rule of law is some kind of Western-influenced propaganda. That cannot be further from the truth. Our own traditional systems have always carried the same notions, albeit in different language.
I have written before about the importance of the ‘human factor’ – that at the end of the day, no matter how well we create the legal and political structures, much will depend on our beliefs, attitude and conduct as individuals in charge of those structures.
The extent to which we adhere to the principles of natural justice will determine the impact of the ‘human factor’. If we stick to them it is quite likely that the ‘human factor’ will be more positive but if we pay lip service, as has been the case over the years, the ‘human factor’ will have a seriously negative effect.
I do hope our administrative bodies, both public and private, in carrying out their functions will do more to abide by and follow the principles of natural justice. At the very least such reassures citizens that they are being treated fairly. But above all, it makes for a decent society – one in which power is exercised reasonably and not where it is abused.
It’s simple: Give adequate notice and information to the person and let the person be heard. Indeed, let him defend and explain himself openly. Do not judge your case or a case in which you might have interest. If you have to decide against the person, by all means give him adequate reasons for the decision so that he understands why he has failed. Surely, that can’t be too hard?
Alex Magaisa is based at Kent Law School, University of Kent, and can be contacted on e-mail email@example.com