Indigenisation ... A stock broker at the Zimbabwe Stock Exchange

I WONDER if designers of the indigenisation laws considered the practical ramifications of the 51% indigenous ownership rule particularly in the case of publicly-listed companies. It is effectively means that 51% of all publicly-traded companies required to comply with the laws will be restricted to a market of indigenous investors. Not only does it require vigilant and systematic monitoring, but it is apparent that there will inevitably be a distortion of the stock market.

Just in case not everyone is familiar with the operation of stock markets where listed companies’ shares are traded, perhaps a little very basic description is in order.

There are two types of companies – private and public. The latter is allowed to market its shares to the public whereas the private company is not. Usually, most companies start off private, with less onerous obligations. But the company’s ability to raise funds from the public is limited since it is restricted from selling shares publicly.

So as the business grows, it makes sense to convert from private to public company status. For practical purposes, it also makes sense to simultaneously have the company’s shares listed on a stock exchange, such as in our case, the Zimbabwe Stock Exchange.

The stock exchange is the equivalent of Musika, the farmers’ market. The shares are there for all to see and for anyone to buy just as the farmers’ tomatoes from whatever part of the country are there for all to view and buy at Musika. The main purpose of listing is to bring your company’s shares to a platform where they will be visible to and tradable by more people. And because you are seeking to raise capital, it makes sense to list on the shares musika.

To extend the analogy further, the Mrehwa farmer figures it probably makes better business sense to bring his tomato harvest to Mbare Musika than to stand by the roadside along the Harare – Nyamapanda road. He knows the market at Mbare Musika is bigger than at the roadside market. In the same way owners of public companies who wish to raise more funds know that they must go to the stock market and use the facility to sell the company’s shares to the wider public.

Usually, the biggest companies are listed on the stock market. But because the shares can be bought and sold by and to any person, there is always the risk that the founder can lose control of his company – hence the phenomenon of friendly and hostile takeovers of companies. There is a whole body of literature analysing the pros and cons of takeovers but suffice to say it is a natural phenomenon arising from the public character of the stock market.

As we have seen, the beauty of the stock market is that Investor A can sell his shares to Investor X without ever having met each other; without ever having spoken a word between them – these transactions usually take place through professionals called share brokers. Investor A can be a red Zimbabwean selling his shares to Investor X who is a blue Zimbabwean or a green European. All Investor A needs is money for the value of his shares. What prompts him to sell is probably that the company’s share price on the stock market would have risen because the market perceives that the company is doing well.

But there has to be someone available and willing to buy and he does not want the cost of searching and verifying the identity of the buyer. In fact, such searches could reduce the market’s efficiency – it negates the whole aim of listing company shares and facilitating ease of trades.

With the indigenisation laws, however, it means 51% of the company must at all times remain in the hands of the indigenous as defined in the law. As an indigenous investor, you must sell your shares to another indigenous investor. You no longer have the liberty to sell to anyone else. Essentially, it means that the market for indigenous share owners in listed companies will have to be restricted to indigenous buyers only for to sell to a foreigner would upset the balance.

The implication of this is the creation of a severely restricted ‘secondary’ market for indigenous investors. It also means a severe distortion of the stock market and limitations in terms of access to capital for Zimbabwean listed companies – since at least 51% of what they seek can only be raised among locals.

But then, what if the indigenous buyers are limited or unwilling to pay the price? This punishes even the honest and hard-working indigenous investor who owned shares before the inception of this rule because suddenly he finds himself with a restricted market of indigenous buyers.

I could go on and consider how this will affect the take-overs market especially where companies are really struggling and need another company to bail them out via take-over.

I could go on and discuss the difference in the types of securities issued to investors – preference shares, ordinary shares, debentures, etc – issued by companies seeking to raise capital and how this will also be affected by the regulations.

The larger question, of course, is how all this will be enforced going forward. Unless there is a formal indigenous securities’ market, it’s difficult to see how the restrictions on sales will be enforced on a regular basis. And it will prove cumbersome for indigenous investors to trade their shares without flouting the regulations.

In addition, it’s hard to see how publicly listed companies can be made accountable for change of ownership of shares between investors. Once given to the indigenous investors, the company can have no control over what the indigenous investor does with the shares. The share represents the investor’s interest in the company and the investor has a legitimate right to deal in the share as he deems fit. The indigenous investor is free to keep or sell the shares in accordance with stock market norms. To restrict him would be to deny him his freedom, too and therefore negate the whole essence of empowerment.

Perhaps the state would have put in place a rule that gives them the right of first refusal in the public share market. This would have the effect that whenever an indigenous investor wants to sell his shares, he would be obliged to make a first offer to the state which would decide whether or not to buy. But surely, if the state had the resources to buy the shares in public companies, they would simply have bought 51% of every foreign-owned company and then sell on the shares to indigenous Zimbabweans. The state has no money.

In fact, inserting the right of first refusal would not work just as it didn’t work in relation to the land issue when the state failed to maximise on its right of first refusal for many years after independence in 1980. In any event, the state has a poor record in business management as evidenced by the demise of almost every company in which it has a majority interest, the ailing Air Zimbabwe being a prime example. Furthermore, it would have the potential to create a bureaucratic and cumbersome process that would cause stock market inefficiencies.

As I have always maintained, I have no problem whatsoever with the theory behind policies to take ordinary people out of poverty and to benefit local communities from natural resources. Some people think when we are critical and point to loopholes that we are stridently opposed to ideas of empowerment. No, we are not. We simply plead that there be some modest investment in careful thought before taking steps that ultimately kill the proverbial goose that lays the golden eggs.

I am not sure if the practical ramifications discussed above were considered and if so, whether there are mechanisms in place to deal with the challenges.

When all is said and done, the great tragedy is that there is no ideological shift at all behind the indigenisation agenda – it is not challenging the neo-liberal capitalist system – rather it is an attempt to remove the shoes from the feet of one set of owners of capital and into them place the feet of a new set of owners, albeit bearing a different complexion. There is nothing original or revolutionary about it and that is what is really and truly sad.

E-mail: wamagaisa@yahoo.co.uk

Icon ... Gen Mujuru (centre) with his wife and Morgan Tsvangirai

AS AN unequalled avalanche of emotion engulfed the national landscape last week following the shocking death of Retired General Solomon Mujuru, there were certain discernible features that still refused to be obfuscated. The nation would do well to take notice of them rather than to bury our collective heads in the sand, like the proverbial ostrich.

Observing general discussions among Zimbabweans across the whole spectrum, it became clear that the tragic incident presented a moral dilemma of great magnitude. Recognising the immense contribution of the General toward the achievement of Zimbabwe’s independence, the vast majority of Zimbabweans poured their hearts out sympathising with the Mujuru family and sharing a huge sense of loss of a man they considered a hero.

Yet there were also pockets of dissent; chambers of doubt in the midst of the collective chorus of adulation.

It is not the purpose of this article to engage in the debate of heroism. I believe that decision (whether or not one is a hero) lies in the hearts and minds of the people and in this regard, events of the last few days tell a story that is there for all to observe. What is sought to be done here is to identify and assess the narratives that can be identified from this tragic episode and why they are important in the ever-present nation-building project. To refuse to acknowledge these narratives and pretend they do not exist simply because they are less palatable at this juncture or because we disagree with them would constitute recklessness.

Liberation Narrative

The first and overwhelmingly common narrative, which we can conveniently call the liberation hero narrative, is represented by the almost unprecedented outpouring of emotion across large sections of Zimbabwean society – both locally and abroad. Like Joshua Nkomo before him, Mujuru has the distinction of having drawn an almost universal crowd of mourners who genuinely believed in his heroism. This included people from different political persuasions – a feat that few, if any, of the living leaders can ever lay claim to in life as in death.

It demonstrated that Mujuru was perceived by the majority not simply as a Zanu PF leader but as a national figure whose role and contribution transcended party lines. It showed a man who both in life and death possessed a rare kind of power over people. This narrative did not, however, overlook his flaws and it should not be seen as such. It recognised that like all people, the man had his flaws but the narrative balanced the positives and negatives and chose to privilege the positives.

There has been a sense of unity among political leaders who otherwise spent most of their time fighting each other in mourning the demise of a political and military giant. Indeed, he has been hailed as a hero in particular for his sterling contributions to the liberation struggle that brought independence to Zimbabwe in 1980.

The second narrative, which is evidenced by three threads, emanates from pockets of Zimbabweans who do not find favour with the hero label. This dominant line in this narrative is that a hero can also morph into a villain if previously heroic deeds are followed by dreadful conduct. This narrative acknowledges the significant role played by leaders of the liberation war but goes on to point out that this was followed by acts of betrayal in the post-independence era.

Gukurahundi Narrative

The first of these threads of discontent arises from the Gukurahundi atrocities in Matabeleland and the Midlands in the 1980s. This Gukurahundi narrative contains the common lament that authors of the atrocities, however significant their past contributions may be, can never be regarded as heroes. In this narrative, the authorship of Gukurahundi is invariably attributed to the Zanu PF leadership as a collective and sometimes, in the extreme cases it has to be said, to a more generalised and amorphous group referred to as “Shonas” – reference to Shona-speaking people.

Where guilt is not direct, it is attributed by association. When there were no positive acts, liability is attributed by omission, i.e. that either they were directly involved or that they did not do enough to stop it.

In the case of General Mujuru, although his friend and comrade, Dumiso Dabengwa, the ZAPU leader who was a prominent victim of the onslaught by the state during that period has spoken to absolve him of responsibility for the atrocities, a number of people using the Gukurahundi narrative are not sufficiently persuaded. Their argument is that as head of the national army at the time, he surely knew or ought to have known of what was happening in the region.

Property Rights Narrative

The second thread of discontent arises from the white farming community — that being the constituency most affected by the land reform exercise carried out over the last ten years. Indeed, the symbolism that the fire that consumed the General occurred at a farmhouse located on a farm from which a white commercial farmer was forcibly evicted is too obvious to be overlooked.

It is not too far-fetched to say that even though it may be considered uncultural and morally indecent to celebrate someone’s demise, there may have been others within the dispossessed white farming community saying the events are an indication that ‘what goes around comes around’. Admittedly this may be extreme but still, it is a sentiment that cannot be ignored.

Economic Decline Narrative

The third thread is both a combination of the two but includes in addition, the more generalised view of Zanu PF’s culpability in causing the country’s poor fortunes after independence and especially in recent years. It is a narrative that says past heroes have negated the gains of independence rather than ameliorate the conditions of the people. This is more a reflection of general opposition and resentment towards Zanu PF so that anyone who is considered part of the establishment is regarded as an anti-hero, regardless of what they have achieved in the past. So in the present case, it is not so much a reaction against the General in his personal capacity but against the political party in which he was a key player.

There are important observations to be drawn from these narratives:

First, the nation will forever be burdened by a huge moral dilemma regarding the champions of liberation from colonialism. Are they heroes at all? To what extent is heroism overtaken and obfuscated by later deeds that some people regard as un-heroic?

It seems to me the nation will almost always be divided on this question. The reactions witnessed this week give a foretaste to the living liberation champions of what people think of them now and how they will be viewed in death. Commendably, Zimbabweans largely remain united by the sense of achievement around the liberation struggle, itself a defining moment in the country’s biography. But there is also a feeling of betrayal by the liberation leaders who must do some self-introspection that see if they can salvage their reputations.

Few, if any will probably manage to garner the kind of support that the General did on his death – indeed the narratives of discontent, which were in the minority in this case are probably and will be in the majority and louder in respect of the remaining liberation leaders. Being alive means they have a chance, albeit slim, to redeem themselves.

Second, the cries from sections in Matabeleland and the Midlands over the Gukurahundi atrocities demonstrate that this sore point in the national psyche cannot be overlooked any longer. There is a genuine feeling of anger and grief among the people who were affected, either directly or indirectly by the sordid events of that period. Zanu PF and the national leadership need to confront this issue and deal with it conclusively.

My observation is that even long after the alleged authors of those events have departed this world, this matter will forever haunt Zimbabwe. Already there is ill-feeling among Zimbabweans of a certain generation and this is evident in the often vitriolic attacks and serious verbal jousting that takes place in cyberspace among other forums. It’s only a matter of time before these clashes spill from cyberspace into the physical spaces. The national leadership needs to take responsibility over this issue.

Third, one also observes an unhealthy tendency to generalise in our politics, which frequently results in weak understanding and appreciation of politics in Zimbabwe, even among the general populace. The third sub-narrative that we have seen above has the weakness that it is too generalised. When critics argue that the General was part of the establishment and should have done more, they are not arguing from a position of information but rather that of speculation and erroneous deduction.

Merely that one is in Zanu PF – they have not done enough and they are always wrong. Conversely, with politics seen through this lens merely because one is in the popular MDC, therefore he is doing well and is always right. These are dangerous and disingenuous generalisations. There must be a reason greater than his liberation war heroics why General Mujuru commanded respect even among opposition leaders and their supporters. He was seen as a voice of reason and restraint in the present political climate – able, we hear, to restrain the extremists within Zanu PF. Perhaps his detractors will come to appreciate his role more now that he’s gone.

Fourth, no matter the recognised justifications of the land redistribution exercise there can be no doubt that there is a constituency, however small, that will forever feel aggrieved by what happened. Despite the political rhetoric, I do not think even the national leadership is convinced that this matter is concluded.

Two distinct aspects of the land reform programme need highlighting: first, there is the issue of the land itself which remains contested both legally and politically and second is the issue of immovable and movable property on land, clearly a legal matter that should be easily settled. Even if the government sticks to its argument that it will not pay for the land itself, it is impossible to find any serious justification for not adequately compensating the farmer in respect of buildings and other movable property such as machinery and livestock which were unjustly expropriated.

I do not see this issue dying out anytime soon and like the Gukurahundi problem, this matter will spill over the haunt future generations just like the colonial violations of the 19^th century haunted the white settler community a hundred years later.

Overall, the death of General Mujuru has given us deeper insights into the psyche of our nation or more specifically, the different aspects of the national psyche.

There is part of the national psyche that wants to recognise and celebrate our heroes; an aspect of our psyche that recognises the flaws in men and women but faithful to the age-old principle of wafawanaka, wants to retain the beautiful parts and place them above the bad.

There is also part of our psyche that is traumatised by past episodes of madness and deliberate violation of human freedoms. Here blameworthiness is collectivised and placed on the shoulders of everyone deemed part of the then establishment. This itself may not be fair on individuals but it represents a cry for a matter that requires dealing with.

We have witnessed this week a moral dilemma for the nation. I for one was swayed by the celebratory aspects not only of the liberation war hero but also of a man who represented an important counter-balancing factor within one of Zimbabwe’s most influential political organisations. There is a collective sense of apprehension of how the void his loss has caused will affect politics.

I have also, over the last few days, come to understand and appreciate the narratives of discontent represented by some compartments of the nation. It would be reckless if we did not attend to those issues. It would be clear negligence toward future generations if we dismissed them out of hand. It would be a great legacy if the demise of the military and political giant caused us to think more deeply and act more decisively on these national questions.

Alex T. Magaisa is based at Kent Law School, University of Kent, and can be reached at wamagaisa@yahoo.co.uk

On the one hand, the MDCs and civil society organisations argue that the Summit effectively recognised the decisions of the Livingstone Summit whereas Zanu PF counter-argues that the Summit simply noted but did not endorse the decisions. But does it really matter? What really does the SADC Communique say and what are the implications?

In all this, one must take cognisance of the bigger picture and ultimate objective, which is the SADC-mandated process to resolve the political problem in Zimbabwe.

The SADC Communique contains various other clauses, including some on the matter of sanctions but this note focuses strictly on the fate of the Livingstone Troika decisions – as this appears to be the issue that has been most contentious.

Clauses 21 to 31 are the provisions of the SADC Communique that are pertinent to Zimbabwe. The critical clauses in respect of the Livingstone Summit are clauses 22, 23 and 24 – although there are other relevant provisions. For purposes of this note, the critical provision is clause 22 which states, “Summit noted the decisions of the SADC Troika Summit held in Livingstone, Zambia in March 2011.”

The question that arises, therefore, is what this clause means, the key word here being “noted”. Does it make any difference to the outcome, in effect?

Ordinarily, when something is “noted” it means that there is an acceptance that it has value and is worthy of attention. By noting the decisions of the SADC Livingstone Troika Summit, the SADC Summit is recognising that they have value and are legitimate. It means the Summit has given recognition to the Troika decisions.

This is important when considered against the background that one party to the GPA (Zanu PF) had taken umbrage against the SADC Livingstone Troika decisions on grounds of procedural irregularity. Therefore, for anyone holding the view that the SADC Livingstone Troika decisions were illegitimate and that they should not be upheld, the recognition of the decisions by the Summit must be a disappointing outcome.

Also important to consider is that the interpretation of that word, “noted” in Article 21 cannot be done in isolation. In interpreting words of any document context matters a great deal. The word “noted” is used in various provisions of the SADC Communique – see Article 9, 12, 21 and 30 for example – and in each case the notion communicated by noting is official recognition by the Summit of whatever was brought before it. It is a statement of the Summit accepting its value.

In fact, Clause 30 of the SADC Communique also states that the Summit “noted” the recommendations of the sanctions mission mandated by SADC in August 2010. It does not say it “endorsed” the recommendations but that does not mean SADC takes the issue less seriously. No-one seems to be downgrading the idea of “noting” sanctions recommendations, but instead it is getting publicity as SADC’s recognition of the sanctions problem in Zimbabwe.

In any event, if the SADC Summit had rejected the SADC Livingstone Troika decisions as some would have the world believe, it would have stated as much in unequivocal and no uncertain terms. Instead, not only did the SADC Summit recognise those decisions, it went further in Clause 24 to “urge the SADC Troika to appoint their representatives as soon as possible to participate in the Joint Monitoring and Implementation Committee (JOMIC)”.

The JOMIC is a body mandated to monitor the implementation of the Global Political Agreement (GPA) that forms the foundation of the present Inclusive Government. The appointment of a team by the SADC Troika to work with the JOMIC was one of the key decisions of the SADC Livingstone Troika Summit. It was also heavily opposed on grounds that it represents interference with Zimbabwe’s sovereignty.

That the SADC Summit has reiterated in its Communique what the SADC Livingstone Troika resolved in March gives further weight to the view that in effect it has recognised and upheld the decisions of the Livingstone Troika.

It must be pointed out, albeit as an aside, that the view propagated in some quarters that the team to be appointed by the SADC Troika represents interference in Zimbabwe’s sovereignty is rather disingenuous in light of SADC’s role regarding the GPA. SADC is a guarantor of the GPA. It has a responsibility to ensure the full implementation of the GPA. In fact, one could argue that SADC has generally failed to live up to its obligation to fulfil this role given that almost three years since the signing of the GPA a number of provisions are yet to be satisfied.

By accepting SADC’s role in the resolution of the conflict and its place as guarantor of the GPA, Zimbabwe’s main political actors (Zanu PF, MDC-T and MDC-N) effectively conceded ground which SADC can and must utilise to produce a meaningful result in resolving the problem.

Indeed, one could go so far as saying that making the GPA part of the constitutional order and given SADC’s role as guarantor, the political players effectively compromised the country’s sovereignty and diluted their own authority. To argue, therefore, that SADC cannot appoint a team to monitor the full implementation of the GPA as interference in the country’s sovereignty flies against the foundation of that agreement. It is the guarantor and as long as its conduct is within reason, it can take necessary measures to ensure it performs its role efficiently. No-one can seriously argue that the full implementation of the GPA is beyond the bounds of reason.

In the overall analysis, the net effect of the SADC Communique is that the SADC Summit gave due recognition to the SADC Livingstone Troika decisions contrary to what may have been argued by those opposed to them. The opposite would have been to sideline, ignore or totally reject the Livingstone Troika decisions without equivocation. The Summit did not do that. In fact, it went on to reiterate the need to appoint a team to monitor the full implementation of the GPA, a key resolution and outcome of the Livingstone Troika Summit.

The substance of the outcome is clear for any reasonable mind to see. But what we see instead is an exercise in spinning the unspinnable. It is the political equivalent of the football manager who, upon his team losing a match, tells the media that his team did not lose but rather that it simply conceded more goals than it scored. It doesn’t change the outcome. It is called a loss in any language.

There are two observations to be made. First, the collapse of Renaissance has been presented as a failure of corporate governance. That is probably correct, but what seems to me to be more significant is that it was a failure of regulation.

Regulators in the financial sector exist principally because those who handle other people’s money cannot be fully trusted to do the right thing all the time. There has to be someone to keep an eye over them. They are the gatekeepers, ensuring that only those with the resources – both financial and skills can be permitted to run banks.

If there were failures of corporate governance, one wonders why and how it took so long for regulators to pick that up. And indeed, one is compelled to ask: how many such failures of corporate governance are there but have not yet been identified?

The problem of ‘corporate incest’ – where related parties deal with and lend to each other and that of insider loans that have been cited in the Renaissance saga are not new to Zimbabwe’s financial sector. Neither is the problem that these insider loans were often non-performing loans. They were prevalent in the 2004 banking crisis.

Similarly, the shareholder-manager problem and the attendant risks such as the high levels of insider loans and non-performing loans were identified in many of the new financial firms at the time. The regulator needs to keep an eye on the ball.

On the Renaissance case, it seems to have been too late again – the proverbial farmer shutting the gates when the horses have already bolted. And you would hope there is not more of the same coming. There is clearly need for major overhaul in the country’s financial regulatory framework.

Then we have the issue of the so-called ‘loan sharks’ – basically men who have been giving loans to ailing corporations at ridiculously high interest rates. Yet it seems to me the term ‘loan sharks’ is being misused in this context, especially as it connotes that the borrowers are in some ways victims of circumstances beyond their control.

Surely the businessmen and corporations who were borrowing money from these lenders were often professional business executives who knew exactly what they were doing? They are not like the desperate worker who borrows money from a lender at extortionate rates on the basis that he will pay it back on pay day – so-called “Pay-day Loans” which need proper consumer regulation.

These businesses accessing these loans are not desperate consumers in need of similar protection. They have at their disposal advisors of all sorts who can provide proper counsel and protective mechanisms.

Indeed, one wonders if the borrowings in some cases were made to fund lifestyles as opposed to funding business. There is a problem in the corporate sector generally – aptly captured by that cliché: “Keeping Up with the Jones’”. Too many people try to keep up with the Jones’ – even if they lack the means to fund the lifestyle. People think they are wealthy, they feel wealthy and they end up trying to fulfil that belief by foolishly but willingly entering into transactions that they cannot afford. They don’t grow the business; they grow the lifestyle. When the lender wants their money back, they will of course come after you.

To my mind, to heap blame on the so-called ‘loan sharks’ is to pay a blind eye to the failings of individuals and a business culture that encourages profligacy. It is that which has to change.

Stories like this have become common. After reading the story, you will probably raise both eyebrows at the interest rate on the US$1,5 million loan, which at 15% is ridiculously high.

But you have to ask: Can grown professional men really say they did not know what they were signing for in a US$1,5 million deal? I mean, how does one put a signature on papers relating to a US$1,5 million loan and claim not to have known what it was for? And these people were (and still are) bank directors? And all along, I thought a regulator’s due diligence checks include the ‘Proper Person Test’ to gauge whether a person meets the requirements to handle other people’s money!

Essentially, the businessmen knew what they were getting into, as did others who were lent huge sums of money by so-called ‘loan sharks’. If these were cases of desperate men and women in Mabvuku or Magwegwe trying to put a plate of food on the table for their children, I would understand the ‘loan shark’ argument. Here, I think, the label is least deserved. They are business deals that went terribly wrong and the borrowers are far from being victims of manipulative lenders. It’s a culture of profligacy that is at the centre of most of these challenges.

Writing Chapter 3 (The Pitfalls of National Consciousness) in his seminal work, The Wretched of the Earth, Franz Fanon had long foreseen this circumstance when he said, “ … in under-developed countries … there is only a sort of little greedy caste, avid and voracious, with the mind of a huckster … [it] tries to hide [its] mediocrity by buildings which have prestige value at the individual level, by chromium plating on big American cars, by holidays on the Riviera and weekends in neon-lit night clubs …”

Enough said.

Europe has held the monopoly of selecting the head of the IMF. Only 10 men have held the job of Managing Director (MD) at the IMF since its inception in 1946. All 10 have been European. Four out of those ten were French (including the beleaguered DSK).

It’s one job of global significance that has been the monopoly of white European males – so there is a gender dimension, too. Critics argue that in this set-up, merit is sacrificed for political deal-broking between top European powers.  The people who are chosen have not always been the best that the world can offer.

But how did Europe get this odd monopoly on the IMF job? Here, a brief historical background is appropriate. This convention on Europe’s monopoly at the IMF has to be read alongside the USA’s monopoly in regards to the World Bank top job. It has always been held by an American. So, in effect, Europe and the US hold a duopoly on the IMF and WB top jobs. Europe defers to the US on the WB job and reciprocally, the US defers to Europe on the IMF job. That’s the way it has been.

But that does not make it right? Certainly not in the new global economic landscape which is vastly different from what it was in 1946 when the two institutions were created. And this is why this convention is being challenged and rightly so.

Those conventions may have worked in the immediate post-war period, when many countries in the world were still colonies; when the US was the key dominant political and economic power and needed Europe to get back on its feet in the aftermath of the war; when the global economic order tilted hugely in favour of the US and Europe compared to the rest of the world.

It’s probably understandable that they had the power to make those choices – they led the creation of those institutions at Bretton-Woods and it was important to exercise control and build them according to their own taste. When you build something, you want to maintain control so that you mould it the way you want it to be. But not when it has profound impact elsewhere and on others, as the IMF has been over the years. Most countries in the developing world have felt or continue to experience the impact of misconceived and poorly-implemented IMF-led Economic Structural Adjustment Programmes.

The world has changed drastically since 1946. The duopoly of Europe and the US on the IMF/WB leadership is no longer tenable or even morally justifiable. The emerging markets have become a dominant force in the world economy, with the BRIC countries (Brazil, Russia, India, China) leading the way. A look at the figures shows the extraordinarily rapid growth of the Chinese economy; that India has overtaken Germany in the last few years whilst Russia and Brazil have advanced past the UK. Economists forecast that Mexico will replace Italy in the exclusive top ten club of world economies by 2015. Yet none of those emerging economies have a say in the leadership of two of the world’s most important financial institutions.

Why is it that these emerging economic powers are excluded by old conventions from the selection of the IMF/WB leaders? One struggles to find the moral ground for the duopoly, let alone the economic justification. For countries that insist, often with evangelical zeal, on spreading democracy and democratic values and practices across the rest of the world, it seems ridiculous that they would continue to insist on their duopoly in so far as leadership of the IMF/WB is concerned.

This US/European dominance is not confined to the WB and IMF but indeed to various other aspects of the global social, economic and political architecture. It is these kinds of conventions that raise the wall of resistance among large sectors in the developing world and make it difficult for Europe and the US to exercise acceptable leadership in other areas.

No doubt Europe will want to reclaim the job after DSK’s fall. Media reports indicate that they will probably offer Christine Lagarde, the French Finance Minister, as a replacement (which will make it five French out of 11 heads since 1946). There will certainly be one thing that would be novel about her candidature: she is a woman and would therefore be the first female head of the IMF. But that is not likely to pacify the critics especially in the emerging economies who question their exclusion from the decision-making process.

Europe is currently going through a hard time economically, with Ireland, Greece and Portugal all requiring huge bailouts and the IMF has played a critical role in the deal-broking. Naturally, it would give comfort to Europe to have one of its own in charge. But that is why the emerging markets protest that there is potential for bias and that conditions set for the European countries are kinder compared to the rest of the world.

In the end, it is likely that if a vacancy arises presently, given DSK’s circumstances, the job will go to a European. But it is important that this matter be raised, discussed and debated. That countries like China and Brazil are calling for non-European candidate is itself an indication of the changing face and voices of the global economic and political landscape. The US and Europe can no longer afford to ignore China, India and the rest of the emerging economies. It is difficult to kill old habits, let alone conventions, but this one may be having its last kicks.

It is not intended here to pass judgment on the character of those comments. It is a matter which if it indeed it does come before the courts will exercise the wise faculties of the learned judges.

Having some interest in matters of judicial independence and inclined to defend the courts against political interference, it matters not to me who is doing it and I believe that it is important to exercise restraint. However, concern also arises where the law is applied selectively.

I have, in my research on Zimbabwe over the years, observed with interest the relationship between the judiciary and politicians and I have concluded that few can really raise their hands and claim them to be the cleanest of them all. This piece simply recollects moments in recent history where conduct similar to that which is currently the subject of the political and legal storm has manifested, often without consequence to its authors.

Interestingly too, some characters who today point accusatory fingers do not seem to have a clean record when it comes to contemptuous behaviour towards the courts. No doubt they will justify their conduct, just as Tsvangirai will also try to justify his recent comments.

“True Judgments”

In an article in the Zimbabwe Independent on August 2, 2002, President Mugabe was quoted as having remarked at a reception for members of Parliament (MPs) that the government would not obey judgments which it regarded as “subjective.” He is quoted as having stated, “We will respect judges where the judgments are true judgments.”

These comments were made in reference to a case in which Justice Minister Patrick Chinamasa had been convicted of contempt of court by Justice Blackie, then a High Court judge. The report goes further to quote the President as having said that a judge who “sits alone in his house or with his wife and says ‘this one is guilty of contempt,’ that judgment should never be obeyed”.

This was a statement clearly signalling that the government would be at liberty to select which judgments to obey and which ones to ignore. And of course, that was not deemed enough to qualify as contempt of court.

“Night Judges, Night Justice”

In October 2000, the then Information Minister, Professor Jonathan Moyo issued vicious criticism of High Court judge, Justice Chatikobo, whom he accused of being a “night judge dispensing night justice” having granted an urgently sought interdict after hours.

A new radio broadcasting company, Capital Radio, had sought urgent protection of the courts against Moyo who wanted to seize its equipment at a time when the main case was pending in court. Justice Chatikobo granted an order for Capital Radio i.e. against the government and Moyo was not pleased.

The police disregarded the High Court order which Moyo ridiculed on the grounds that it had been issued by a “night judge, in a night court” and that the result had merely been “night justice”. There were no charges of contempt of court against Minister Moyo.

Letters to the Judiciary

But the matter did not end there. As the Zimbabwe Independent reported on October 13, 2000, Moyo was reported to have written to the then Judge President Justice Godfrey Chidyausiku registering “government’s disquiet over [the] High Court ruling in the Capital Radio saga”. This resulted in the High Court instituting investigations into the conduct of Justice Chatikobo who had granted the interdict giving Capital Radio protection against a search by the police.

Contrast this to when Tsvangirai is reported to have written to the High Court regarding the Roy Bennett matter. He was widely lambasted for interfering with the judiciary. To my mind, both were wrong to write to the courts from their seats in the executive for it constitutes undue interference. There are proper channels that everyone must follow. Yet it would seem rather odd to any reasonable person the different reaction to both cases.

In any event, there was nothing irregular about what Justice Chatikobo had done – urgent relief ought to be given at any time of the day otherwise violators can take advantage to commit their acts and cause irreparable harm during those times when they think judges and the courts of law cannot hear matters. Justice Chatikobo later resigned and went on to take up a judicial post in Botswana where he later died.

Chinotimba’s Invasion of the Supreme Court

In November 2000, war veterans’ leader Joseph Chinotimba led a group that in an unprecedented act, invaded the Supreme Court building to start what was to become the effective purge of the judiciary, removing judges who were regarded as being unfavourable towards the Fast Track Land Reform Programme.

Indeed, of all judges of the Supreme Court who were in office in March 2001, the one who has survived is Justice Wilson Sandura, who so often finds himself in the minority in major judgments. Those of us in the business of teaching the law often advise students of law to pay particular attention to some dissenting judgments often because they have more legal merit than the popular majority decision.

I like to think Justice Sandura’s judgments are, and will in future, be a critical source of teaching and learning the law in Zimbabwe. History is kind to good legal reasoning.

After their unprecedented act and accompanying threats against the judges, Chinotimba and his comrades were never charged with contempt of court.

“Polite and Nice” Request to Leave

After Chinotimba’s group threatened the Chief Justice, Justice Minister Chinamasa is reported to have advised him that the government would not be able to guarantee his safety. This lack of protection and apparent collusion between the war veterans and the executive arm of government threatening the integrity of the courts and safety of the judges forced him to retire in March 2001.

One of the Supreme Court judges, Justice McNally, is also quoted in the media as having said at the time, “I was told very politely and very nicely that I should go – take my leave and go, otherwise anything could happen. It was said very frankly that they didn’t want me to come to any harm”. He was referring to a meeting he had with the Justice Minister Chinamasa during the upheavals.

Judge Devittee was one of the three High Court Judges appointed after the highly controversial 2000 parliamentary elections to preside over electoral cases brought before the court. He made a few decisions that upheld the opposition’s petitions.

Chinotimba is quoted as having declared: “Devittee is a judge for opposition political parties. The way Gubbay went is the same way he is to go”. Gubbay is the former Chief Justice whom, it was reported, Chinotimba and his colleagues had invaded and threatened at the Supreme Court in 2000 before he eventually departed in 2001. By June 2001, Judge Devittee had resigned from office. Needless to say Chinotimba was not charged with contempt of court.

Justice Blackie’s “Kangaroo Courts”

Sometime in 2000, Justice Minister Chinamasa was hauled before the High Court on charges of contempt of court. He did not turn up. Justice Blackie, then presiding, issued an order of sentencing Chinamasa to three months jail time and a Z$50,000 fine for contempt of court. The charges of contempt had arisen over comments regarding sentences against three Americans who had been found in possession of arms which punishment Chinamasa thought was too light.

He is quoted as having said at the time of sentencing that the six month jail sentences induced “a sense of shock and outrage in the minds of all right-thinking people … The leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe’s sovereign interests”.

When he gave his judgment on the contempt charge, Justice Blackie said that, “the statements made by Chinamasa were intended to bring Mr Justice Adam (who had issued the sentences) into disrepute as a judge and the administration of justice by the high court in this case into disrepute.”

Later, the sentence against Chinamasa was overturned by another judge but not long after, Justice Blackie was arrested and what followed was an ordeal that some believe was retribution for the sentence that he had earlier passed against the Minister.

There is some indication in this rubble that this at least shows that it is possible to hold one in contempt of court for scurrilous accusations against the courts especially by those in positions of executive authority and that they should exercise restraint in their public utterances. This applies to all leaders and parties. Yet one has to recall that even after Chinamasa’s conviction, the then Information Minister Jonathan Moyo did not relent.

He is quoted as having remarked that the contempt of court judgment by Justice Blackie showed that the judge, “who has a history of kangaroo courts” had taken the matter into “a personal crusade and has done that in a manner that will erode public confidence in the justice system” and further that “there is no doubt that fair minded and law abiding citizens will see this judgement for what it is: outrageous, sinister, highly personalised crusade made by someone who should be packing his bags” (BBC: 2002).

No to Legal Technicalities

As long back as 1982, after a judgment against the government in a matter involving Yorke brothers, the then Prime Minister Robert Mugabe is recorded as having responded: “The government cannot allow the technicalities of the law to fetter its hands in what is a very clear task before it, to preserve law and order in the country …We shall therefore proceed as the government in the manner we feel is fitting … and some of the measures we shall take are measures which will be extra-legal” (The Herald, July 29, 1982).

Defenders will no doubt find reasons to defend these statements citing arguments including preservation of national security and the politics of the day but so will defenders of Tsvangirai in present day politics.

“Merely Academic Judgement”

In 2004, when Justice Majuru, then of the Administrative Court, ruled in favour of the ANZ, publishers of the Daily News, and when the order was later confirmed by Justice Nare, the then Minister of Information Moyo responded by saying that the judgment was merely academic and could not therefore be enforced.

In an article on the undermining of the judiciary, journalist Blessing Zulu quotes Professor Welshman Ncube, then MDC Secretary General, as having said: “The ANZ case is the first clear and unambiguous refusal by the government to obey a court order. This time they cannot change the law to suit their needs. This is a clear attack on the judicial system” (Zulu: 2004). Needless to say, no action was taken against the alleged offenders.

Enduring Culture

Contempt of court by Zimbabwean politicians has a shamefully rich history. As long back as the late sixties, in the well-known of Madzimbamuto v Lardner-Burke, the Smith government had vowed not to obey the Privy Council judgement which was likely to rule against it. Indeed when the Privy Council judgment came, pliable judges effectively took the government side – except two, Judges Fieldsend and Dendy Young who resigned in protest.

The culture of disobeying and undermining judicial authority where decisions were unfavourable to politicians seems to have been one of the more negative inheritances from that era. It is part of a culture that taints the greater political landscape.

Few can raise their hands and claim them to be clean. They have been contemptuous in various ways but the difference is that most have got away with it because they wield greater political power.

Sober Minds and Sober Approach

Plainly, one could produce a whole volume of incidents in which members of the executive have conducted themselves in ways that are so contemptuous that they are likely to jeopardise and often have endangered the independence of the judiciary.

Chief Justice Chidyausiku issued a plea in his recent speech at the opening of the legal year calling on politicians not to interfere with the judiciary’s work. True enough, politicians are human beings and they do get frustrated. In the frustration, they may say things that upon further reflection they would rather not have said.

It is probable that Tsvangirai made statements against the Supreme Court judges in a moment of frustration. That is not to excuse his conduct. But one needs to tread carefully here, for as the various instances chronicled in this piece indicate, politicians on the other side of the political divide have no clean hands as far as this type of conduct is concerned. They have, in various instances, issued similar, if not worse criticism against the courts and judges. This conduct caused many judges to leave office in the early part of the last decade.

Whatever the justifications they may use for their actions, the fact remains that their conduct was no less contemptuous. Yet none of them faced the wrath of the law and the courts for such contempt — in the one significant case involving Chinamasa, it was quashed by another judge.

It is not right for politicians – Zanu PF, MDC or whomsoever to abuse the courts and judges yet it is also not right to apply the law selectively. The matter needs sober minds and sober politicians to raise their hands and clean up their act and for judges to maintain the integrity of their office by not only dispensing justice but as the old adage goes, be seen to be doing so.

Cruel fate ... X Factor reject Gamuchirai Nhengu

THIS is one bandwagon that I cannot prevent myself from joining. For the ‘Gamu bandwagon’ is not an ordinary one.

For a moment – for those few weeks — the talented girl brought many of us out of our shells. For those few weeks, as her talent outshone the brightness of others around her, the Zimbabwean in me and from my observations, in those similarly placed, had something positive to scream about in this country.

When Gamu first appeared on television and sang so beautifully and captured our hearts, I noticed that her surname betrayed a link to an old friend who answered to the same name. When it was confirmed that Gamu Nhengu was her niece, those of us who had shared lecture-time with her in law school instantly appointed ourselves ‘uncles’ and ‘aunts’ to Gamu.

Yes, such was the pride, that even a remote connection to imminent celebrity was good enough. It was all in jest but to be sure, Gamu’s young shoulders were carrying many expectations.

Little did we know that before the game had even begun, our smiles would transform into frowns; that our tears of pride would turn into streams of heartache and disappointment. For watching the Gamu story has been like watching a public humiliation; a public flogging of one so vulnerable yet so loved.

It has been cruel. And very painful too. It conjures up of images of one being raised to a high pedestal and then from there, being dropped so forcefully just imagining it is painful to the senses.

Why, I asked, did the bosses at ITV put Gamu through a charade when it seems they knew pretty well that she would be dropped for reasons that have little to do with her talent? And yet presented her as failing to make the cut because she was not good enough!

We watched in shock as X Factor judge, Cheryl Cole, pronounced the unlikely end of Gamu’s journey to the top of the tree. We were horrified to discover that a girl who had, without the slightest fault, sailed through her auditions so effortlessly, had failed to make the cut, losing to two competitors who had literally crumbled before the judges.

I thought it was a rude joke. I imagined there might be a twist and sure enough, the rumour-mill had it that maybe, just maybe, she would come back as one of the judges’ ‘wild cards’ at the live show.

I have a son who is nine. I always tell him about Zimbabwean success stories and Gamu had become a potential success story that I wanted him to follow right to the end. I have always told him that if he works hard in this country, he will get a fair chance; that the principle of fair play is held in high regard.

On Sunday evening, he approached me after the show and seeing my visible disheartenment, asked if I still stood by my strong belief in fair play in this country. It took me a little while to respond, quite likely because my beliefs had been rudely shaken by what I had just witnessed.

I later said to him that not everyone is like the judge and reassured him that this was a show seeking publicity and anyway, things on television don’t always work the way they are supposed to in real life. But deep down, I had been severely disturbed by what had happened and I doubt that my boy was convinced by my explanation.

I later admitted that he has to be mindful that in life some people can be very unfair and it’s always important to be on guard and to protect one’s position. When later I saw the many protests against the decision led and supported by many ordinary Britons, I was pleased to tell my boy that there are still many decent people out there in this country who believe in the spirit of fair play.

Then a couple of days later, rumours started circulating that Gamu had actually been axed not for lack of talent but because of issues surrounding her mother’s immigration status on which hers and her minor siblings is dependent.

And on Wednesday, the media carried headlines stating that Gamu would be deported apparently because her mother’s application to extend her stay in Britain had been rejected by the UK Border Agency (UKBA), the immigration agency.

Some news reports even carried reasons for the refusal, apparent insinuations pointing to the allegation that Gamu’s mother had abused the benefits system. A situation that was already bad had become very desperate.

I joined concerned colleagues seeking clarity on the matter. The statements had been sourced from a UKBA ‘spokesperson’ so it seemed that the story was authentic. But what did Gamu and her mother know about the refusal, we asked?  We turned to the aunt that we knew to make further enquiries. We were aware that what appears in the media is often not the full story.

The information we obtained was that apparently Gamu’s family had yet to receive official communication of the so-called refusal and deportation. So it appeared that the applicant had received news of the decision through the media, just like the rest of us watching this sad drama from the sidelines.

What happened to privacy? I asked. What happened to the usual line so favoured by the UKBA, the one that often goes, ‘We do not comment on individual cases’? Fair enough, the case had drawn public interest but would it not have been more decent to inform the family first, with full reasons and a chance to challenge the findings, especially the damaging finding in respect of alleged benefits cheating?

The issuing of this statement in these circumstances completed the public humiliation on this poor girl whose only mistake was to pursue a dream that her talent so deserves.

I understand that the law must be upheld at all times and I know that immigration is a hot issue in this country. But the law also provides for appeals against decisions or rules that remove the right of appeal. Further, and in any event, the laws provide for reviews of decision-making processes by administrative bodies, such as the UKBA to determine whether they have complied with principles of natural justice.

It may be that the UKBA made inaccurate findings. Indeed, it maybe that the procedures they have followed in a specific case have not conformed to generally accepted principles of natural justice. None of us in the public domain has the full facts of this case other than the bits and pieces emanating from the media and dare I say, rumour-mill fuelled by the internet.

It’s unfortunate that in an age dominated by internet news dissemination, opinions are formed more swiftly than before and sometimes on the basis of inaccurate or incomplete information.  Already, some people have formed the opinion that Gamu’s mother is a benefits cheat. Others are convinced she was wrong and that she and her family must be deported.

These are quick but ill-informed judgments. They must be afforded opportunities to defend themselves like all persons in their position. The UKBA issues refusal notices every day; it probably issues deportation orders on a daily basis but it always guards its processes and clients’ privacy, even those involved in security-related matters.

I have read stories of persons who threaten the security of people in this country and yet those people have been afforded protection by the law. Indeed, some remain on these shores, enjoying benefits paid for by decent and hard-working people in this country.

Gamu did not threaten anyone’s security. No, she doesn’t pose a threat to any person in this country. She only sought to bring happiness to people; to sing for them and make they feel good if only for a few moments. And for a while she did. She touched the hearts of many people with her soulful, most beautiful voice.

She made us her fellow Zimbabweans proud. She was on the brink of success and almost, just almost could have transformed her family’s fortunes, using a rare talent conferred on her by her Creator. But the chance is about to be taken away in the most cruel of circumstances. And her treatment has been appalling.

But I also believe that everything happens for a reason. What seems like a nightmare might just turn out to be a blessing in disguise. After all is said and done, it’s her talent that will have an enduring presence. That is the permanent fixture that no television judge or immigration officer can ever take way.

But I am appalled, as indeed are many right-thinking people, at the way Gamu and her family have been treated. It is odd that a system that so stridently protects the right of terror suspects can be so harsh to a songbird whose suspicion is that she is more than a wonderful talent.

Paolo Coelho writes in The Alchemist that, when you really want something, the whole universe will conspire to make it happen for you. For Gamu, I believe the Universe has already started conspiring in that direction and I too, am a willing conspirator. You can become one, too.

To the UK authorities, I ask for mercy on Gamu’s behalf and I can do no more here than refer to the timeless words of Portia, the lawyer in Shakespeare’s The Merchant of Venice who says, pleading for Antonio’s life, that “the quality of mercy is not strained”, that it drops as the gentle rain from heaven; that it blesses him that gives and him that takes; that mercy is above authority and that sometimes, it is better, ‘when mercy seasons justice’.

I pray that mercy seasons justice and that Gamu gets a chance to showcase her vast talent.

Below is the product of Magaisa’s creative instinct which he has dedicated to the Mtukudzi family at their loss.

Mhodzi Yangu

Ndiyaniko atora zai rangu
Kudya here ndichirarira, vakomana
Ndiyaniko amedza mhodzi yangu
Kuruma here ndichangosima, vasikana

Ndaiti mhuru yangu yanga yofamba
Kutoti ndumurwa yangu yakunda kufamba
Kuti bwaibwai kuvhura uso
Apa rurimi rwogona kuridza muridzo

Muridzo ndaiti hunzi veduwee uyai titambe
Muridzo kunge haya ndikati youya yemvura hore
Hataiziva muridzo wemheni
Kusacheuka kuti muridzo wegondo
Rinononga nhiyo dzevamwe
Muridzo wenyoka inomedza zai revamwe

Chorus

Ndiyaniko, varume
Adya zai rangu
Ndiyaniko, machinda
Atanha ruva rangu
Ndati ndiyaniko, vasikana
Ateya nhiyo yangu

Taiti chave chigondora chozvifurira
Taiti hukwana yozvinongera
Kutoti rava rume, rozvifambira
Ko isu taizivei
Kuti kune musungo mberi
Kuti kune vakateya

Chorus

Ndiyaniko, varume
Adya zai rangu
Ndiyaniko, machinda
Atanha ruva rangu
Ndati ndiyaniko, vasikana
Ateya nhiyo yangu

Dai ndaiziva hangu,
Ndaiti ramba urimudhuze, wangu
Ndaiti ramba wakabata, wangu
Nokuti rwizi harusati rwaserera, makei
Ndaiti hona musungo uyo, wake
Nokuti unobata chero chisingadyiwe, sahwira
Mumwe musi waiyambuka
Mumwe musi waipotsa

Chorus

Ndiyaniko, varume
Adya zai rangu
Ndiyaniko, machinda
Atanha ruva rangu
Ndati ndiyaniko, vasikana
Ateya nhiyo yangu

Yanga yabuda mhodzi yangu, varume
Yanga yatumbuka, mhodzi iya
Maruva chechete, kudanha nyuchi
Hwanga hwoita uchi hwegonera
Wanga wasimba mudonzvo wangu

Chorus

Ndiyaniko, varume
Adya zai rangu
Ndiyaniko, machinda
Atanha ruva rangu
Ndati ndiyaniko, vasikana
Ateya nhiyo yangu

waMagaisa 2010

“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

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