Trias politica: An exercise in common democratic sense

THERE was a time in the not so distant past when the thunder of the architect of Gukurahundi, Robert Gabriel Mugabe, would make many among us quiver in fear, sending a cold chill down one’s spine. He thundered this week declaring that;
“They (judges) dare not be negligent in their decisions when requests are made by people who want to demonstrate, to hold these demonstrations. In light of the violence that we had earlier on, surely they should have taken note to the fact that when permission was given four days ago, there was violence; when it was given two days ago, there was violence. …To give permission again when they (judges) are to the full knowledge that it is going to be violent or (there is a) probability that there is going to be violence is to pay reckless disregard to the peace of this country. We hope now they have learnt a lesson, ivo majudges.”
No one quivered. Certainly not the High Court judges one of whom promptly ruled a police decree suspending the constitutionally guaranteed right to demonstrate illegal, null and void. Slightly more than a year earlier in March 2015, Mugabe had also thundered over the Didymus Mutasa and Rugare Gumbo court challenge to the 2014 ZANU PF congress amid cheers and ululation from a ZANU PF crowd in Zibagwe threatening that;
“If there is a magistrate or judge who will want to preside over this matter, then I would like to know where he/she went to school and where he/she got the powers to rule over ZANU PF.”
I do not know whether Mutasa and Gumbo quivered. What I know is that both remarks are symptomatic of a mindset in which the individual sees himself as the Alpha and Omega of all things. The Feudal King in whom absolute power is vested. He be the Law Giver. The Executive. The Judge. All in one. But then this is the 21st century and not the dark ages. In the 21st century it is accepted the world over that the ‘first and most sacred duty of courts of law is to administer justice to those who seek it high and low, rich and poor, black and white.’
Given the above threats issued to the courts by Robert Mugabe and his government and remembering that not so long ago my friend Patrick Chinamasa, when he was Minister of Justice secured the resignation of then Chief Justice Anthony Gubbay by simply visiting his office while Honourable Joseph Chinotimba and a band of war veterans bayed for Gubbay’s blood in the streets and telling him that government could no longer guarantee his safety, I thought it appropriate this week to write on the courts, their role and function in our country given the struggles and challenges that face us today.Advertisement

The satirist Jonathan Swift in Voyage to The Country of The Houyhnhnms painted a wholly negative image of lawyers and courts of law by portraying them as:
”… a society of men among us, bred up from their youth in the art of proving words multiplied for the purposes that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. For example, if my neighbour hath a mind to my cow, he hired a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself. It is a maxim among these lawyers that whatever has been done before, may legally be done again; and therefore they take special care to record all the decisions made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions, and the judges never failing, directing accordingly. They have a court and jargon of their own, that no other mortal can understand, and where-in their laws are written which they take special care to multiply; whereby they have compounded the very essence of truth and falsehood; of right and wrong; so that it will take thirty years to decide whether the field left me by my ancestors for six generations belongs to me or to a stranger three hundred miles off.”
Contrast this wholly negative image of lawyers which has sometimes resulted in retrogressive and short-sighted actions such as the abolition of the legal profession in France soon after the 1798 revolution and in Russia in the aftermath of the Bolshevick Socialist Revolution in 1917 with the perceptions which lawyers have of themselves as captured in Justice Maugham’s often quoted remarks that -‘Lawyers are the custodians of civilisations than which there can be no higher aim and nobler duty,’ as well as in Karl Llewellyn’s famous words;
”The essence of our craftsmanship lies in skills and wisdom, in practical, effective, persuasive, inventive skills for getting things done, any kind of thing in any field, in wisdom and judgment in selecting the things to get done, in skills for moving men into desired action, any kind of man, in any field and the skills for regulating the results, for building into controlled large scale action such doing of things and such moving of man. Our game is essentially the game of planning and organising management (not for running it), except that we concentrate in the areas of conflict, tension, friction, trouble, doubt – and in those areas we have the skills for, working the results. We are the trouble shooters. We find the way out and set up the methods of the way, and get the men persuaded to accept it, and to pick up the operation. That is the essence of our craft.”
Whatever the above contradictory images of law, lawyers and the courts may suggest, it cannot be doubted that law is a facet of culture, politics, morals and economics; a manifestation of power and authority and a device and instrument for channelling, regulating, restraining, legitimating, moderating and mediating. Law is one of the primary means of organising society. It is the medium for the recognition and enforcement of human rights and of restraining the State and other social organs from trespassing on the rights of citizens. It regulates, moderates and legitimises politics by defining in advance the rules for competition into political office. Lawyers, judges and the courts inevitably have to play key roles in this process.
We must however, be mindful that law is a double edged sword with the inherent capacity to be used in ways inimical to human rights, justice and the public good. Rhodesia is a good example of this. Commenting on this, Professor Reg Austin, one of the finest legal minds in this country and the only white man I have ever worked with who is wholly unconscious of his whiteness, but one conscious of himself as a human being, has had this to say of and about the Rhodesian legal profession;
”The Smith Constitution emasculated the courts and lawyers of Rhodesia, turning them, in relation to a vital part of the law- that relating to the political and civil rights of the individual – into little more than highly paid, elaborately costumed, occasionally be-wigged YES MEN…”
The new State inherited, with this body of security laws, a legal profession which had sadly (with a few exceptions) been either co-opted into the system or been cowed into acceptance of it. A legal profession which had vigorously (even if unsuccessfully) challenged the repressive structure of the white minority State, which had truly asserted its dedication during the colonial era to the traditional Rule of Law would have immediately played a major role in articulating and nurturing the traditional democratic Rule of Law values which the Liberation Movement had insisted on throughout the struggle…”
Professor Austin must have been profoundly disappointed that the Liberation Movement – as represented by ZANU PF – inherited and deployed against the people lock, stock and barrel, the entire labyrinth of Rhodesian repressive legislation which today still includes the Law and Order (Maintenance) Act, now restyled the Public Order and Security Act, the infamous POSA and the preventive detention laws which Mugabe used in the early independence days throughout the 1980s to terrorize, first the Rhodesians, then ZAPU and Zipra cadres and later anyone who stood up to the ZANU PF regime. The post -independence courts, first under Chief Justice Fieldsend, then Chief Justice Enock Dumbutshena and later under Chief Justice Gubbay, tried gallantly to push back as much as was possible the frontiers of these Zimbabweanised Rhodesian laws.
My point in all this is that the recent attempts at assaulting the judiciary, coming from Mugabe is nothing new and is something which must be resisted by all democrats who subscribe to the principles of the Rule of Law, human rights and the doctrine trias politica – separation of powers.
Thus we cannot afford to reconstitute the Rhodesian judiciary and legal profession in today’s Zimbabwe. When the people march in defence of their rights and the dictatorship screams for assistance from the judiciary to aid and abate in the suppression of the people our courts and our legal profession must be guided by one thing and one thing alone – the Constitution.
I am mindful of the caution expressed by Judge Learned Hand that;
”I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, they are false hopes. Liberty lies in the hearts of men and women; when it dies there, there is no constitution, no law, no court (which) can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
When the people, organised as citizens, stand up to protest misgovernance, the stealing of elections and to demand the implementation of electoral reforms and for an accountable and responsive government, that is the living proof through action that liberty and freedom are alive and well in our hearts as a people. In this context there is a symbiotic relationship between the desire for freedom, liberty and prosperity which lie in our hearts and the duty of the courts to protect and safeguard those liberties and freedoms guided only by the will of the people as expressed in our Constitution.
Mugabe may rail on the courts to do his bidding but the judges must honour their oath to uphold the Constitution. That Mugabe is violating his own oath to defend and uphold the Constitution on a daily basis, for example, over the devolution clauses of the Constitution, is the more reason that judges must uphold their own oath.
The people are showing determination in asserting their constitutional rights. By demonstrating, protesting, staying away, demanding the implementation of electoral reforms, reversal of import bans, resisting bond notes which will further impoverish them, they are standing up and showing that liberty is well and thriving in their hearts. Let it not be the courts that aid the regime to further extinguish those flames of liberty in the hearts of the people.
I am also mindful of Justice Khanna’s perceptive warning that;
”There is no modern instance … in which any judiciary has saved a whole people from the grave currents of intolerance, passion and tyranny which have threatened liberty and free institutions. The attitude of a society and of its organised political forces rather than of its legal machinery, is the controlling force in the character of free institutions. The ramparts of defence against tyranny are ultimately in the hearts of the people”.
The organised political and civil society forces are standing up against the grave currents of tyranny. Let the courts not be on the side of tyranny but on that of the people, liberty and freedom as so carefully set out in our Constitution. Being on the side of the people requires no partisanship but merely to faithfully uphold the fundamental pillars and principles of our Constitution.
Allow me to give the last word to the late Edson Zvobgo who, in his inimitable style, had this to say;
”There cannot be peace or sustainable development in Zimbabwe and the region unless there are iron clad, visible and permanent guarantees to us all that democratic systems of governance are not guests of convenience. The life style and culture of a free people must permeate every activity of the nation. The question whether any people are a free people must never be determined by conclusions of research; it must be palpable, visible and agreeable to all human senses”.