Alex Magaisa

Alex Magaisa is a senior lecturer at the Kent Law School. Prior to joining KLS, he worked for the Jersey Financial Services Commission, the financial services regulator in Jersey. His research interests lie mainly in financial services regulation, law of corporate groups and the effects of IP Laws on developing countries. Alex takes a keen interest on legal and political issues pertaining to Zimbabwe and Africa generally.

Lessons from the village court

By Alex MagaisaImmigration, Politics Last updated on: August 28, 2009
48 CommentsComment on this article

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 wamagaisa@yahoo.co.uk

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Tags: daily news, dare, employment law, human factor, natural justice, village court
  • Joromiya

    Thanks Magayisa. Very informative. The system that brought us up can never fail us. I always wonder, why on earth this Roman-Dutch law foisted amongst us. Retracing our past we can come up with a more just system.
    I do pray that some fool out there would retrace the same path just like you did above so as to inform in our endeavour for a new constituion. Otherwise, i can see us writing another constituition b4 i go 6 feet under.

  • Joromiya

    Thanks Magayisa. Very informative. The system that brought us up can never fail us. I always wonder, why on earth this Roman-Dutch law foisted amongst us. Retracing our past we can come up with a more just system.
    I do pray that some fool out there would retrace the same path just like you did above so as to inform in our endeavour for a new constituion. Otherwise, i can see us writing another constituition b4 i go 6 feet under.

  • Bantu Nzira

    Alex, the African judicial system has no attorney or lawyer or what I call the accussed’s super witness or commercial representative. Which means if we were to return to it one day, your expertise may lack relevancy in Africa. What is paramount in an African court is a fair witness, one without undue bias as you pointed out. If for example the accused is not willing to tell the truth, our system of justice does not use torture like the Americans do. Or if there is no witness to a crime of murder or any other offence committed in the dark of the night, the African judicial system will make an enquiry through a priest and out of that enqiry will come detail that resembles a video or graphical illustration of how the crime was commited, with how many accomplices and how many victims, what time, where and why and all this would be done in a space of a few minutes. But the northern justice system is a system of probabilities and incertainties that can stretch for years without answer. Like what makes you so certain that you saw what you saw, or it is being alleged that though you were not seen committing the offence but it can be inferred that you were the nearest person in the place and time neighbourhood of the crime scene, so we reasobably think that you committed the crime. Often the northern justice system has sent angels “innocent persons” to jail on that basis, but not in the African justice system. In the African justice system, when the accussed has been proven to be the offender, he/she out of shame and appreciation of the system would proceed to apologize as a sign that indeed he committed the crime yet in the northern courts there are tales of people who finished their terms in jail and continue to live up to their death in denial of the offence. Why would a person continue to deny a matter that he has been punished for, including those criminals without a name or fame to protect – it is because of innocence. This perfect African system is known in detail by African leaders, but they would not institute it because it is not manipulable, they want the northen justice system where the most crimimous murderer like one I saw as a little boy who was caught with a human head in his car boot but escaped jail by frivolity – “what makes you so certain that the human head that I carry for ‘muti’ is a victim of my hand?” In other words, a top of the range judicial system is playing second fiddle to a system of probabilities and incertainties of justice because the human being is intimidated by the truth. So Magaisa if you were introduced to law by this perfect system, why as a professional have you not lobbied for its restoration like I am fighting alone for African Culture and Spirituality?

  • Bantu Nzira

    Alex, the African judicial system has no attorney or lawyer or what I call the accussed’s super witness or commercial representative. Which means if we were to return to it one day, your expertise may lack relevancy in Africa. What is paramount in an African court is a fair witness, one without undue bias as you pointed out. If for example the accused is not willing to tell the truth, our system of justice does not use torture like the Americans do. Or if there is no witness to a crime of murder or any other offence committed in the dark of the night, the African judicial system will make an enquiry through a priest and out of that enqiry will come detail that resembles a video or graphical illustration of how the crime was commited, with how many accomplices and how many victims, what time, where and why and all this would be done in a space of a few minutes. But the northern justice system is a system of probabilities and incertainties that can stretch for years without answer. Like what makes you so certain that you saw what you saw, or it is being alleged that though you were not seen committing the offence but it can be inferred that you were the nearest person in the place and time neighbourhood of the crime scene, so we reasobably think that you committed the crime. Often the northern justice system has sent angels “innocent persons” to jail on that basis, but not in the African justice system. In the African justice system, when the accussed has been proven to be the offender, he/she out of shame and appreciation of the system would proceed to apologize as a sign that indeed he committed the crime yet in the northern courts there are tales of people who finished their terms in jail and continue to live up to their death in denial of the offence. Why would a person continue to deny a matter that he has been punished for, including those criminals without a name or fame to protect – it is because of innocence. This perfect African system is known in detail by African leaders, but they would not institute it because it is not manipulable, they want the northen justice system where the most crimimous murderer like one I saw as a little boy who was caught with a human head in his car boot but escaped jail by frivolity – “what makes you so certain that the human head that I carry for ‘muti’ is a victim of my hand?” In other words, a top of the range judicial system is playing second fiddle to a system of probabilities and incertainties of justice because the human being is intimidated by the truth. So Magaisa if you were introduced to law by this perfect system, why as a professional have you not lobbied for its restoration like I am fighting alone for African Culture and Spirituality?

  • ini hangu ini, Nottingham

    Bantu Nzira, you have a lot of energy. I will go further to say you have zeal sir for your values.
    Anyone ever thought of the idea of a judge in the cultural sytstem submitted by Magaisa, acting “Ultra Vires”? I’m sure it will be a complex conundrum to manoeuvre out of. I Presume it will be more of the judge is right until any evidence on the contrary is adduced. Question is, buy what process?
    With regards to the so called Roman law, If I may use the English Legal System. There is a process where cases can be heard depending on their seriousenss. However the crucial factor of this systen is a person can challenge a judgement all the way to the highest court which is the House of Lords(HL). In addition, A HL decision can be challenged by being taken to the EU Court.
    I guess the illustration above does does show a structured system that is well organised with all court judgements documented for future use, in the event a similar case with issues arises. Though it is marvelous, it is not that different from the system that Magaisa demonstrated from his village. Only terminologiy and techinicalities.
    In conclusion, what is sad is that out legal system does not fit any of the systems, be it Roman or Village. To say it has gone to the dogs would be the understatement of the century. Corruption and inconsistencies of titanic proportion are the order of the day. what a shame. Ladies and Gentlemen, it does not get worse than this. Controversially, I would say any legal system is better than ours.

  • ini hangu ini, Nottingham

    Bantu Nzira, you have a lot of energy. I will go further to say you have zeal sir for your values.
    Anyone ever thought of the idea of a judge in the cultural sytstem submitted by Magaisa, acting “Ultra Vires”? I’m sure it will be a complex conundrum to manoeuvre out of. I Presume it will be more of the judge is right until any evidence on the contrary is adduced. Question is, buy what process?
    With regards to the so called Roman law, If I may use the English Legal System. There is a process where cases can be heard depending on their seriousenss. However the crucial factor of this systen is a person can challenge a judgement all the way to the highest court which is the House of Lords(HL). In addition, A HL decision can be challenged by being taken to the EU Court.
    I guess the illustration above does does show a structured system that is well organised with all court judgements documented for future use, in the event a similar case with issues arises. Though it is marvelous, it is not that different from the system that Magaisa demonstrated from his village. Only terminologiy and techinicalities.
    In conclusion, what is sad is that out legal system does not fit any of the systems, be it Roman or Village. To say it has gone to the dogs would be the understatement of the century. Corruption and inconsistencies of titanic proportion are the order of the day. what a shame. Ladies and Gentlemen, it does not get worse than this. Controversially, I would say any legal system is better than ours.

  • pre

    I think the problem with our african legal system has failed because the white people said that our philosophy and ethical principles were primitive. It is time the University of Zimbabwe or South Africa introduce Post Graduate Degrees in Ethical theory, Legal Philosophy and so forth and encourage students to examine African Models of Justice, and document them, maybe we can use them to develop African law.. We Africans are left behind while in China and the Middle East have their own legal systems. We should start moving away from this Roman-Dutch approach and encourage our own culture and make laws that reflect our own heritage. Why is it illegal to have two wifes? because the ex-rulers imposed such a law on us? That is the first law I want changed so I can legally marry my 8 girlfriends and be a Real Man in the African sence. We also need to make Drink Driving Legal, because it is cultural in africa that one has more drinking friends when he buys a car, And the first thing the Nyanga will do is pour beer to bless your brand new car, besides pedestrians in zimbabwe are not stupid, they walk away from the road if they see a car coming, especially on friday evenings or month-end(payday), hence drink drive laws are not reflective of our own culture. Where my grand father came from, who would stop an old man own his bike or Donkey-cart because he was drunk>>> you can not do that because it is the way of life there, such a case will not succeed in Dare, the prosecution would be told to go to for mental health treatment from the witchdoctor.

    If the british will not accept Shiria law in England and continue to arrest my fellow Zimbabweans for Drink-Driving their PIJOT 504 as they drive back the Thomas Mapfumo or Trompies show (doing what is morally acceptable in Zimbabwean society) then we should not impose thier laws on our people

  • pre

    I think the problem with our african legal system has failed because the white people said that our philosophy and ethical principles were primitive. It is time the University of Zimbabwe or South Africa introduce Post Graduate Degrees in Ethical theory, Legal Philosophy and so forth and encourage students to examine African Models of Justice, and document them, maybe we can use them to develop African law.. We Africans are left behind while in China and the Middle East have their own legal systems. We should start moving away from this Roman-Dutch approach and encourage our own culture and make laws that reflect our own heritage. Why is it illegal to have two wifes? because the ex-rulers imposed such a law on us? That is the first law I want changed so I can legally marry my 8 girlfriends and be a Real Man in the African sence. We also need to make Drink Driving Legal, because it is cultural in africa that one has more drinking friends when he buys a car, And the first thing the Nyanga will do is pour beer to bless your brand new car, besides pedestrians in zimbabwe are not stupid, they walk away from the road if they see a car coming, especially on friday evenings or month-end(payday), hence drink drive laws are not reflective of our own culture. Where my grand father came from, who would stop an old man own his bike or Donkey-cart because he was drunk>>> you can not do that because it is the way of life there, such a case will not succeed in Dare, the prosecution would be told to go to for mental health treatment from the witchdoctor.

    If the british will not accept Shiria law in England and continue to arrest my fellow Zimbabweans for Drink-Driving their PIJOT 504 as they drive back the Thomas Mapfumo or Trompies show (doing what is morally acceptable in Zimbabwean society) then we should not impose thier laws on our people

  • Ndingai

    Alex the concept of “Dare Paruware” is actually exciting and may have aspects that are appropriate to the current global setting. There is drive towards what people would call “Green Events Organisation”. If you look at it the event organisation entailed in the “Dare Paruware” is almost 100% green. There is also a huge efficiency in utilisation resources. These indegenous practices that we naturally take for granted are being repackaged and sold back to Africa for a premium because we do not see how to “Make something out of nothing”. “Dare Paruware” can be patented with a dash of satellite television technology to ensure access to scarce skills of qualified lawyers/advocates/Judges residing in the cities or even abraod. Ofcourse Zimbabwe has to be a ranked as a democratic society first for any of this exciting stuff to be officially implementable!

  • Ndingai

    Alex the concept of “Dare Paruware” is actually exciting and may have aspects that are appropriate to the current global setting. There is drive towards what people would call “Green Events Organisation”. If you look at it the event organisation entailed in the “Dare Paruware” is almost 100% green. There is also a huge efficiency in utilisation resources. These indegenous practices that we naturally take for granted are being repackaged and sold back to Africa for a premium because we do not see how to “Make something out of nothing”. “Dare Paruware” can be patented with a dash of satellite television technology to ensure access to scarce skills of qualified lawyers/advocates/Judges residing in the cities or even abraod. Ofcourse Zimbabwe has to be a ranked as a democratic society first for any of this exciting stuff to be officially implementable!

  • Batshele Nduna

    Well thught Magaisa.After reading your article I thought of the so called reconciliation vis-a=vis the natural justice you referred to.Fancy this situation where a thief steals my maize crop, I beat him thoroughly and he eventually dies I am incacerated for murder or culpable homicide . On the other hand somebody kills a fellow country man for belonging to a party he hates,the person should be forgiven. Do you think our kraal heads(sobhuku) would treat the cases our courts of law do?

  • Batshele Nduna

    Well thught Magaisa.After reading your article I thought of the so called reconciliation vis-a=vis the natural justice you referred to.Fancy this situation where a thief steals my maize crop, I beat him thoroughly and he eventually dies I am incacerated for murder or culpable homicide . On the other hand somebody kills a fellow country man for belonging to a party he hates,the person should be forgiven. Do you think our kraal heads(sobhuku) would treat the cases our courts of law do?

  • Vongai Mushure

    Aiwa, another interesting piece Magaisa….zvinodadisa izvi. Zimbabwe has got talent!!!VERY HOT TALENT. Gob bless Zimbabwe and it’s people. I pray for good health and happiness for the people of Zimbabwe.Aiwa ndadzamirwa maningi funny!!!You are so right that those basic courts back home did a splendid job.

  • Vongai Mushure

    Aiwa, another interesting piece Magaisa….zvinodadisa izvi. Zimbabwe has got talent!!!VERY HOT TALENT. Gob bless Zimbabwe and it’s people. I pray for good health and happiness for the people of Zimbabwe.Aiwa ndadzamirwa maningi funny!!!You are so right that those basic courts back home did a splendid job.

  • munyar

    in fact i turned to love law because of dare ramambo..my father was a representative of the chief..sometimes he would handle the case.it was quiet interesting..i was young then but i was allowed by my father to listen to the cases being adjudicated.i developed a sense of fearless and respect of law now i am a barrister.its fun is not it?..usazvidza dare..ndiko kupindana kwamazuva.

  • munyar

    in fact i turned to love law because of dare ramambo..my father was a representative of the chief..sometimes he would handle the case.it was quiet interesting..i was young then but i was allowed by my father to listen to the cases being adjudicated.i developed a sense of fearless and respect of law now i am a barrister.its fun is not it?..usazvidza dare..ndiko kupindana kwamazuva.

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