The famous Constitutional Law Professor A.V. Dicey submitted that the rule of law in its practical manifestation must contain the following elements. First, “that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law, established in the ordinary legal manner before the ordinary court of the land.” In essence, if anyone is to be penalised, it shouldn’t be on account of a fictitious rule dreamt up by some authority.
Second, “no man is above the law; every man and woman, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” There is no special law or court which deals with the elite in the country. The law applies to everyone.
Rule of Law in Zimbabwe
Zimbabwe’s rule of law is selective on how it operates. Those aligned to the government never really go to prison unless they are out of favour with their bosses. The natural course of things is that when they get caught, they get released. This is done to give a fake appearance that there is due process. The truth is prison is used to silence and persecute those in the opposition political party or anyone deemed to be against the government.
Job Sikhala, a member of parliament for the opposition party and practising lawyer has been in prison for almost three months without trial. The case is based on frivolous and vexatious charges. He has been arrested in similar circumstances more than sixty times since he was elected to parliament in 2000. Essentially, the case has no legs to stand on.
Job Sikhala is not an ordinary politician. Fire burns in his belly. He’s a force to be reckoned with. In a hostile political environment, he stands out as brave and courageous. Not many politicians speak truth to the military government in Zimbabwe. He’s radical and won’t be silenced like many politicians who fear the consequences of speaking their minds. It’s this attribute that brought persecution from his government for more than two decades. They fear his energy, his ability to articulate people’s challenges. People easily connect with him for when he speaks, they seem ignited.
The force with which he speaks and his impact on the people is the reason why his government won’t stop persecuting him. They are constantly weaponizing the law at his detriment. The general elections are less than a year away and the government is desperate. They are out their depth. There is no realistic prospect of the ruling party winning given how dysfunctional the country is. Sending Job Sikhala to prison is a well known government strategy of stopping effective people from taking part in elections.
Facts of the case
The facts of the current case are horrible in that he was arrested while assisting a family in his constituency. A mother of two, Moreblessing Ali was abducted in May and her body was found two weeks later mutilated in a well. Her intestines were in a plastic bag. She was an effective and well-known activist. Before her murder, she was knocking on doors giving people advice on how to register to vote.
In a letter written by Job Sikhala from prison, he said, he was given instructions by MoreBlessing’s family to “ask the authorities the truth about her whereabouts and to demand justice for her.” He further alleged in the letter that “the government in an attempt to conceal the truth about the circumstances around the depressing abduction, went into hysterical public campaign against myself, through statements issued by senior government officials and its propaganda mouthpieces inciting and calling for my arrest.”
As a result of this campaign, he was arrested on 14 June 2022 at 20:00pm. He highlighted that the government dispatched a swarm of its paratroopers, secret security agents and the police totalling over a hundred who raided his house. From that day, they kept him in Chikurubi maximum prison where they keep murderers and those who committed horrible crimes. He depicts the prison as resembling Hitler’s concentration camp and Stalin’s Siberia.
A member of parliament for a close-by constituency, Godfrey Sithole was also arrested for helping Job Sikhala. By the time, the government was done, a total of sixteen people had been arrested. They are all in the maximum prison with Job Sikhala and have been refused bail. No one has any idea when the trial will be done. This is a clear case of violation of human rights and exposes the deficiencies of the rule of law in Zimbabwe.
A fair observer can deduce that it’s unreasonable for the government to arrest a member of parliament and a lawyer more that sixty times. This is not about upholding justice but political persecution and harassment. In the previous case in 2019, he was charged with treason for plotting to overthrow the government using unconstitutional means. He was tried and acquitted of all manufactured charges.
In another case, High Court Judge Justice Erica Ndewere was put under pressure by the government to reach an unjust judgment against him and she refused. She lost her job, and no one knows where she is today or whether she is safe or not. The manner in which Judges have been denying him bail in the current case is influenced by the harassment that Justice Erica Ndewere faced.
Judges fear that if they give him bail, they could lose their jobs. When bail was refused two weeks ago, the judge could not give reasons why bail was refused. The judge said reasons will be given later. Job Sikhala is effectively “persona non grata” in his own country. If they could take away his citizenship, they would have done it.
In his letter, he also made a very serious allegation that senior opposition leaders, prominent journalists, civic society leaders and social media activist are being dragged to a special court called the Corruption Court. This court was introduced by president Mnangagwa when he came into office to deal with corruption cases. He said the court has been turned into a persecution court by the government.
All those deemed to be opponents of the government, are diverted from criminal courts, and brought to the Corruption Court and given corruption court reference numbers. This court functions outside the provisions of the country’s established laws where selected Judges are instructed to impose the government’s unfair judgments.
Strengthening the rule of law in Zimbabwe
(i) The law must be accessible and as far as possible intelligible, clear, and predictable. If anyone is arrested for doing or failing to do something, that person must easily know what they did wrong. People cannot be discouraged from breaking the law if they don’t know what the law is or if they do not know what they shouldn’t do. In addition, people need to know their rights or obligations so that they can claim their rights and perform their obligations. One cannot claim rights he is not aware of or perform obligations when he does not know what he is meant to do. In a nutshell as submitted by the European Court of Justice, “the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him or more realistically by a lawyer advising him.”
(ii) Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
(iii) The laws of the land should apply equally to all unless differences can be justified. Equality before the law is the cornerstone of any society. The idea of one law for the elite and one law for poor people is a recipe for disaster. In his book “Rule of Law” Lord Bingham used a reference from the Bible in which Paul refused to discriminate on the grounds that “there is neither Jew nor Greek, there is neither bond nor free, there is neither male or female: for you are all one in Christ. Every person in Zimbabwe should enjoy the equal protection of the laws of Zimbabwe.
(iv) Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose on which powers were conferred, without exceeding the limits of such powers and unreasonably. Although the citizens empower the government by electing them to make laws which bind the whole country, it falls on the government and its ministers to carry the laws into effect. In so doing, they should do it strictly according to law. A government that gets into power through a coup or ministers who plunder the country’s resources through corruption are essentially breaking the foundation on which the country is built on. It creates unnecessary complications for the country.
(v) The law must afford adequate protection of fundamental human rights. Zimbabwe’s law should incorporate The Human Rights Act 1998 which provides fundamental rights that no one living in a free and fair democratic society can live without. Every Zimbabwean should be guaranteed “the right to life.” This is the most fundamental of all rights. Furthermore, Zimbabweans should not be subjected to torture. They should be guaranteed the right to liberty and security. Moreblessing Ali and many people lost their lives because human rights are not given the attention they deserve.
(vi) Right to a fair trial. Adjudicative procedures provided by the state must be fair. Sending people to prison without trial and refusing them bail is a serious violation of rule of law. Court proceedings should be fair on both sides. The prosecutor or defendant must be given a fair chance to make their case or defend it. The rule of law must guarantee the independence of judicial decision makers. A captured judicial renders the country’s legal system defective and detrimental to everyone. Job Sikhala and the 16 arrested have not even gone through a trial, they were denied bail and are in maximum prison because the government can do so. It’s unacceptable.
(vii) Rule of law requires compliance by Zimbabwe with its obligations in international law as in domestic law. The Secretary General of the United Nations once said that “the rule of law is a concept at the heart of the organisation’s mission. He went on to say, it refers to a principle of governance in which all persons, institutions, and entities, public and private, including the state itself, are accountable to the laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights and norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”
(vii) (i) Zimbabwe must address its domestic laws first because they are applied selectively. There is also an ignorance in which leaders seem to be oblivious to the fact that violation of certain domestic laws amounts to violation of international laws. Leaders who don’t appreciate the rule of law will never make an effort to strengthen them. Zimbabwe could do with good leaders as a country with no rule of law, often struggles to attract investments.
What Job Sikhala is going through is what Nelson Mandela experienced under the apartheid system. What is difficult to comprehend is that it’s his own government subjecting him to apartheid oppression and discrimination. The government of Zimbabwe should govern in the interest of its people instead of persecuting them when they complain.
Zimbabweans want their government to take responsibility for its actions and do the job expected of a government. Sending Job Sikhala to prison without trial will make him more popular among the suffering and hard-working families.