Moyo's false controversies

Moyo's false controversies

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By Psychology Maziwisa
Posted to the web: 21/01/2009 23:34:15
IN A new polemic published this week (read article), Professor Jonathan Moyo raises the following issues before making his rather controversial arguments on them:

(a) Is it right for MDC leader Morgan Tsvangirai to demand that he and his party should have been consulted by President Robert Mugabe on various national issues including the appointment to key state institutions of individuals such as the Attorney General and the Reserve Bank of Zimbabwe -- when he has yet to be sworn in as Prime Minister?

(b) Was it right for the Judge President of the High Court Justice Rita Makarau to castigate lawyers who scandalously criticise the judiciary outside the court process when they lose a case?

(c) And was it right for the Attorney General – Johannes Tomana -- to declare that he is a proud Zanu PF member or supporter?

Prof Moyo’s assertions in respect of each of the three issues above are fundamentally to the effect that: (a) since the September 15 Global Political Agreement is yet to be implemented, there is no basis -- at least in law -- upon which Tsvangirai can question or seek to question, whatever the case might be, Robert Mugabe’s exercise of executive power.

Differently put, unless and until the inclusive government as contemplated in the Global Political Agreement is realised, Tsvangirai is, to put it mildly, like any other normal citizen unable to question the President’s powers -- at least in the manner he does.

(b) As far as the Judge President’s remarks about her fellow colleagues in the legal fraternity was concerned, Moyo added, her utterances were in keeping with the situation on the ground and therefore free of any blemish. I concur.

Prof Moyo went further to personally attack Beatrice Mtetwa, the president of the Law Society of Zimbabwe, apparently for her diligent exploitation of all legal avenues open to her or her client. Moyo fell short of labelling her a legal prostitute, and it is with this attitude that I am utterly disagreeable- for reasons soon to follow.

(c) The Attorney General Johannes Tomana like every other human being in Zimbabwe, correctly argues Prof Moyo, is accorded the right to freedom of association. But for Prof Moyo to even restate a point as obvious as this is tantamount to considering those within the MDC as the most gullible politicians ever to grace the Zimbabwean political stage.

The professor is obviously mistaken. Tendai Biti is a bright man, along with several others. To recite human rights especially to the people of Zimbabwe in circumstances where they know their rights only too well is at best a clear sign of indifference and at worst an insult.

What follows now is my opinion, the bulk of it based in law on the three issues recklessly and insultingly raised.

Firstly, the title of Moyo’s article is as regrettable as it is ill-informed. ‘Stop making false controversies’ it said. Save for the one aspect relating to the Attorney General’s constitutional right to freedom of association, which itself is fraught with limitations, surely the basis on which anyone could possibly have commented on the three -- disjunctively or otherwise -- can be called several things but controversy is scarcely one of them. If anything, Prof Moyo’s misconstruction rendered an otherwise uncontroversial subject controversial and it is to him that that caution has pertinence.

That since Tsvangirai has yet to become Prime Minister and is consequently not positioned to demand consultation on national issues -- including but not limited to appointments to key State institutions – is too obvious a fact to be re-iterated.

The real point is this: The September 15 Agreement contemplated a unity government in which not only the office of the Prime Minister was created but also that of President. It is put pretty succinctly in the agreement how power would be allocated as far as the two positions are concerned. By necessary implication, neither the President nor the Prime Minister can exercise any of the powers accorded them in terms of the agreement unless and until an inclusive government is in place.

The President as head of state is something anyone in their right mind would be willing to forego immediately but the President as head of the executive branch was never possible an institution in the absence of a unity government. Yet Mugabe unilaterally re-appointed Gideon Gono Reserve Bank governor for a scotching and careless five more years, amongst other illegally exercised executive powers.

Just like Morgan Tsvangirai has presently no basis upon which to found any legal objection, so too should Mugabe have no basis on which to make any appointments let alone those that have far reaching consequences on our already crippled country.

The fair answer is that Tsvangirai should have nothing to object to. But what happens in circumstances where Mugabe, who is party to the agreement, acts at odds with what the agreement envisages? That, Prof Moyo, is the crux of the matter.

For present purposes, Tsvangirai’s failure to turn adversity into hope and his lack of wisdom to look further down the road, for which I have always criticised him along with a sizeable number of other Zimbabweans, is neither here nor there.

Further, while I have consistently criticised Tsvangirai for his glaringly futile bid to get more concessions out of Mugabe, I think Prof Moyo’s article is an absolute frustration to our democratic aspirations. Thank goodness Barack Obama came with a message of hope which resonates with millions across the globe.

Indeed, the Constitution of Zimbabwe entrenches, at least in theory, amongst other rights, the right to freedom of association. Much of what Prof Moyo stated regarding this issue could never successfully be contested in any 21st century court of law.

In the normal course of events, utterances of this nature are nothing less than a loud statement of one’s rights conferred on them purely by virtue of being human. Yet in law, no right is absolute. Courts very often limit one’s right on consideration of all the surrounding circumstances, employing in the process, an objective test.

In the circumstances, I have no doubt in my mind that were Tomana’s utterances to be tested in an impartial court of law, alive to the fragile political situation currently prevailing in our country, and regard being had to whether such statements were made during the course of his employment, which I suspect to have been the case, his right to freedom of association would, to the extent that it has the potential to destroy an already ailing political environment, be limited.

Judge Presidents are by the very nature of their calling guardians of our respective legal systems and very often call upon their colleagues to act judiciously and in the spirit of upholding justice. To that end, I have no reason to suspect that in so doing Justice Rita Makarau acted outside of the calling of her office.

My only reservation relates to Prof Moyo’s seemingly calculated and reckless attack on Mtetwa who to me -- from what the Prof alleges -- was doing nothing more than being a diligent lawyer seeking recourse from one court room to the next. The Constitution guarantees the right to a fair trial. It also guarantees the right to freedom of expression in the same manner it guarantees the right to freedom of association.

Zimbabwe presently needs people who see beyond just Zanu PF and the MDC, people who do not make irresponsible statements to the effect that “save for those who are brain dead, every Zimbabwean is either Zanu PF or MDC” and that effectively everything else in between has been rendered an “endangered species”.

I am not too sure this is the kind of message the people of Tsholotsho would like to hear at the moment. I am not too sure it is the kind of message those moved by Obama’s words of hope, like myself, would like to hear either.

Psychology Maziwisa is the interim president of the Union for Sustainable Democracy. Visit: www.usd.org.zw
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