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Grappling With The Developing Jurisprudence in Zimbabwe

 

The native is so angry that the government is about to amend the constitution just three years after the effective date of the country’s home-made book of commandments.

By Farai Gwenhure

Folks are not only annoyed by the mere fact of a mooted amendment but by the agenda which is highly Lacosteic (forgive the new word) in nature, intricately linked with succession politics in ZANU PF but more importantly the contemptuous attempt to add more constitutional powers to an already existing imperial president dealing a sad blow to the idea of checks and balances.

The first amendment is just but a number of steps backwards where ZANU intends to remove the idea of public nominations and hearings by the Judiciary Service Commission in the appointment of the Chief Justice their deputy and the Judge President.

A simple analysis will reveal to an average Zimbabwean that the dispute of who takes over between Lacoste and G40 will end up spilling into the courts of law one way or the other, the person occupying the office of the top judge of the country will therefore be key in determining the way forward.

There is a high possibility that when the ninety days lapse when the person who will be acting as head of state lapse at least two separate ZANU PF processes to nominate a substantive replacement of Mugabe will take place resulting in two different names being submitted to the speaker of parliament who will have no choice but to refer the matter to a competent court of law to determine which one is legitimate.

The major worry of those in the legal fraternity and the democratic contingent is not who will replace Mugabe from ZANUPF but the probability of having an illiterate, lazy chief justice with no competence to deal with the hard and fast constitutional applications considering the young constitution is demanding a fast development of the jurisprudence to catch up with especially progressive provisions of the new constitution in a country where the state is doing a poor job to align the laws.

The citizen is also trying to play catch up if not grappling with the changes happening in the Zimbabwean law.

The local scribe has for many times referred to a landmark case or a land mark ruling in the past few years.

The Con Court has heard various matters making “Revolutionary rulings”, sometimes reserving judgements; equally the High Court has also made serious constitutional determinations owing to the powers conferred to that court to hear constitutional matters.

At the centre of the landmark rulings is fiery Harare Lawyer Tendai Biti of Tendai Biti Law who has so far won several Constitutional cases before both the Con Court and High Court.

“We are not in practice for the sake of being in it we are there to use the law as a tool for social change that’s what we do at HMB Chambers,’ Biti says.

Among the cases Biti won is the Mudzuri case which invalidated section 21 of the marriages act effectively making 18 the minimum age of marriage, the Obadiah Makoni case which changed the interpretation of a life sentence making it imperative to establish a parole board to review correctional conditions of inmates, the high court case by Michael Munyika and Chrispen Tobaiwa before Justice Tsanga case which invalidated section 70 of the Police Act making police officers subject to the same conditions of lawsuits as ordinary citizens and recently the case which resulted in the abolishing of corporal punishment a bold ruling by Justice Mangota.

The two high court constitutional rulings are however subject to confirmation by the Con Court.

The citizen therefore grapples with how to cope with the idea of contradictions in the idea of minimum marriage age being set at 18 when sexual consent remains at 16.A documentary titled A little later produced by the author last year tried to address the issue.

Several marital unions involving children continue to take place with clear signs of parental involvement and in some instances the church is also involved specifically the apostolic sects.

Now comes the idea of corporal punishment being outlawed, many folks think the state must not be involved in how they discipline their own kids.

Parents sometimes take out their anger on kids and instead of canning a kid to instill discipline they end up doing so just to feel better and more importantly there is no corporal standard on how many times you whip a child or pinch them for them to be corrected.

Again folks relate the issue of corporal punishment to scripture where it is mentioned that a loving parent will guide them through the whip.

On top of that parents are also complaining that there are no adequate disciplinary alternatives outside the beatings, movies provide many options folks might need to start befriending the HD version of parenting.

A quick chat with Biti will inform you that his application brought evidence before the jury to the effect that both teachers and parents had previously killed children by assaulting them in the name of discipline.

At a personal level Biti also says he lost a boyhood friend who was beaten to death by his step mother. In fact today’s herald screams “Man whips neighbors son to death.”

Signs being shown are that both the state and NGOs are not doing enough in popularizing the judgements as well as initiating discussions around the developments for society to evolve at the same speed with the evolution of the law.

The Con Court has so far reserved judgement on a case in which fourteen death roll inmates are arguing that their rights have been violated by the state by having them stay on the roll for periods ranging from 5 years to 21 years.

As remedy they request that their sentences be commuted to prison sentences especially when the state has demonstrated that it has no capacity to execute with no hangman currently occupying that office or be it the gallows.

The Con Court has also reserved judgement in the Mahiya case which the director of Heal Zimbabwe Trust is seeking an immediate establishment of a complaints board which deals with citizens complains against members of the security services.

Another case which Biti is involved is one in which Sipepa Nkomo is seeking an order compelling the state to implement devolution of power as dictated by the new constitution.

Biti is promising to bring a couple more cases this year including one on the right to housing in which he is representing a group of people evicted by Murambatsvina who went to camp at a farm and are now at the risk of being evicted by land barons colluding with local authorities and the state.

He also promises to bring a case for compulsory provision of health care on cancer patients, another on the right to education and more importantly in this election season a big case on Diaspora vote.

Outside the Biti factor litigants have won cases like the invalidation of section 121(3) of the Criminal Procedure and Evidence Act which allowed the state to further detain an accused person who granted bail. In the Shelton Kamurendo case through attorneys Kadzere, Hungwe and Mandevere the Con Court ruled

“The application in this matter succeeds. It is declared that section 121(3) of the Criminal Procedure and Evidence Act Chapter 9:07 is unconstitutional in that it is ultra vires sections 13(1) and section 18(1) of the former constitution.”

And in another important case brought by MISA Zimbabwe represented by Adv Magwaliba, the Con Court outlawed criminal defamation in a positive move for press freedom in the country.

Instead of practicing constitutionalism through litigation the state must be ceased with doing their work aligning the laws to the constitution, legislating to close all the grey areas of the law in the spirit and letter of the constitution rather than try to take away progressive clauses.

Gwenhure Farai is a journalist who loves his country, he writes in his personal capacity. This article is a summary of a chapter in a book titled “With all due respect my lord” which is a lay man’s view of the justice delivery system in Zimbabwe.

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