Mukoko: Over to you Mr Tomana

AN OLD colleague sent me an email on Monday afternoon.

“Maionaka Rule of Law yamunoswero chemera anaMagaisa?” (Do you see the Rule of Law that you always ask for?).

“Ndiyoka Rule of Law yacho iyi?” (This is the Rule of Law), he declared emphatically.

He was of course, referring to the decision pronounced earlier that day by the Supreme Court of Zimbabwe to grant a permanent stay of prosecution in favour of Jestina Mukoko.

The story of Mukoko is not new to followers of the Zimbabwe story.

Mukoko, a human rights activist, was abducted, kept in unlawful custody and subjected to inhuman and degrading treatment at the hands of state agents. Many other activists (including a toddler and an elderly gentleman) suffered a similar fate.

In its decision, the Supreme Court confirmed that several of Mukoko’s constitutional rights had been violated. These included the right to personal liberty (Section 13 of the constitution), the freedom against inhuman and degrading treatment (Section 15) and the right to the protection of the law (Section 18). These rights are guaranteed to every individual under the Constitution of Zimbabwe. Flawed as it may be, the constitution does provide for the protection of these fundamental rights.

“I’m happy for Jestina,” I wrote to my colleague. “I’m happy that this unnecessary and heavy load has been shifted from her shoulders by the Supreme Court.”

But I added that the court had no other choice. It was clear from the start that the manner in which Mukoko had been treated violated every law and principle – written or unwritten; that indeed, her treatment was a brutal assault on the nation’s conscience. It did not even require the law to set her free. “Common sense,” I wrote, “required that she be set free”. Anything else would have meant a huge embarrassment for our main court.

As for the Rule of Law, I thought my colleague had been too hasty in his conclusion. The result of the case has gone some way towards salvaging the reputation of our judiciary. Nevertheless, there is more to the Rule of Law than a single positive decision, however monumental it appears. There are some observations to be made in this regard:

First, it has taken more than nine months to decide a matter that involved a clear and obvious breach of a citizen’s fundamental rights. The court rightly found that these rights had been violated. If individual rights are to mean anything in reality, it is important that they be protected upfront or at the very least without undue delay.

What we have here is a decision which acknowledges that there were violations of these rights. Yet, from day one the courts were approached by Mukoko’s lawyers. They tried everything to ensure that there was a cessation of the violations of Mukoko’s rights. Yet, as I wrote at the time, Mukoko and her lawyers were subjected to what were in effect bungee-jumps in the justice system – a high speed and chaotic roller-coaster as they moved from one court to another, to no avail.

The point is: there was a chance to stop these unlawful acts against Mukoko but those opportunities were not taken when it mattered most. Constitutionally guaranteed rights can only make sense when they are actively safeguarded from violation in the first place. What good is a right when it is violated and the protection of the law is not given when asked for? Mukoko could well have suffered worse consequences during the period of her unlawful custody. She could have contracted disease; she could have disappeared forever, indeed, she could have died.

This case demonstrates how important it is for the courts to play an active role in the protection of constitutionally guaranteed rights. What the Supreme Court has found is not new. In a key but largely unreported judgment, Justice Hungwe of the High Court had already made similar observations, chiding the state agents for their conduct. This was known and it could have been stooped ages ago.

Second, if there is to be effective deterrence against similar conduct in future, surely those who presided over the violation of Mukoko’s rights as found by the highest court in the land, should feel the hand of the law. There should be a clear message that those who commit such actions against other citizens should not be beyond the law. The reason why people act with impunity, as they did to Mukoko and others in her situation, is that they know that they will escape the legal consequences of their actions.

As it is, whilst there are celebrations in light of the judgment, it is easy to forget that there is absolutely nothing to stop the same or similar people from taking the same actions against Mukoko and others now or in the future. In other words, she or someone else could well be abducted and subjected to inhuman and degrading treatment just as it happened in December last year. One way to deter such conduct is to place legal responsibility upon the shoulders of the perpetrators of these hideous acts.

This, therefore, presents a key challenge to one of the most disputed offices in Zimbabwe – the Attorney-General’s Office. How will the incumbent, Johannes Tomana handle this one? The highest court in the land has found conclusively that Mukoko’s rights were violated. They were not violated by objects from outer space. These actions were taken by Zimbabweans who presumably are known. There is a key witness, Mukoko herself. Ideally, one would think that this is a case where the Attorney General, the most senior state lawyer entrusted with powers to prosecute criminals would have taken swift action to ensure that perpetrators are brought to book.

Section 76 (4a) of the Constitution empowers the Attorney General to require the Commissioner General of Police to commence investigations in matters where in the Attorney General’s opinion relate to any alleged/suspected criminal offence. The Commissioner General is peremptorily required to comply with that instruction. So the powers are there but whether or not they are invoked is another matter but one that surely tests very severely the commitment of the prosecuting authorities to the Rule of Law.

Indeed, if the alleged theft of a cell-phone caused the hand of the law to move so swiftly in the case of Thamsanqa Mahlangu, one would expect that the serious violation of constitutional rights as found by the country’s biggest court would be enough to cause that hand of the law to move at twice the speed, if not more.

There is another issue in relation to a number of other persons who suffered the same fate as Mukoko. I am advised that these persons were not co-parties to the application by Mukoko. This means the decision directly affects Mukoko but not the others, whose cases remain pending before the High Court.

If my understanding is correct, this means these individual cases must be dealt with by the Supreme Court before a stay of prosecution can be granted. I am not sure why the cases were not joined with that of Mukoko but I suppose there were practical reasons for the approach taken. In any event, Mukoko’s case is now a firm precedent which should apply to all these cases.

Given this scenario, you would think that the prosecution authorities would see sense and withdraw the charges. Certainly, the AG’s office should be considering this very seriously if only to avoid further embarrassment.

More importantly, where a Supreme Court has made such an important decision implicating agents of the state, you would expect normal standards of professionalism and decency to prevail amongst those in charge of those state agents. Surely, there can be no worse or more serious an indictment against responsible authorities than a decision by the highest court in the land which demonstrates impunity on the part of those organs.

In any normal system, heads of those state organs would have been too embarrassed to remain in office. They would tender their resignations for failing to keep proper watch of their charges. In other words, they would take responsibility seriously. And if they don’t have the decency to do so, their superiors would kindly ask them to resign.

When I explained this to my colleague, he said rather dismissively, ‘Urikurota, wangu” (You are dreaming, my friend). Of course, I understood him well because unfortunately, he could well be right. But I said to him, “The Rule of Law is not an event. It is a culture. You can’t hold it in your hands; you can’t see it with the naked eye. But you can feel its presence; it is measured by the conduct and attitudes of the human being.”

It doesn’t escape some of us that in the past, some major Supreme Court decisions have been crudely circumvented through executive and legislative decisions. One hopes that’s a thing of the past.

Finally, of course the decision was welcome news to some of us who despite our misgivings, maintain a strong desire to see the country get back on its feet. We have seen from experience that it is very hard to sell Zimbabwe when there are so many negatives around.

♦ Last week my colleagues and I who belong to a young organisation called the Zimbabwe Diaspora Development Interface (ZDDI) hosted a conference on investment, development and migration in Zimbabwe. It was a beautiful event at which I was pleasantly surprised by the will and commitment of fellow Zimbabweans in the Diaspora to play a role in the reconstruction project (see www.zimdisaporainterface.org).

The message was simple: there is will and resources but it is hard to push the country’s cause in an atmosphere of negativity. For as long as there are those who wish to build the negative image, this job will be very hard. The Supreme Court’s decision in the Mukoko case is welcome news but one of a number of issues that require resolution.

Alex Magaisa is based at the Kent Law School, University of Kent, and can be contacted on e-mail wamagaisa@yahoo.co.uk