Zimbabwe has been a hot-spot when it comes to the rule of law, with local and international human rights organisations offering different perspectives on their assessment of the Zimbabwe situation.
In a modern democracy, the judiciary together with other arms of government such as the legislature and the executive plays a pivotal role in the promotion and protection of the rule of law.
Council of the International Bar Association defined rule of law as “an impartial, independent, the presumption of innocence, the right to a fair and public trial without undue delay, a rational and proportionate approach to punishment, a strong and independent legal profession, strict protection of confidential communications between lawyer and client, equity of all before the law,”.
The above are the fundamentals of the rule of law.
Accordingly, arbitrary arrests, secret trials, indefinite detention without trial, cruel or degrading treatment or punishment, intimidation or corruption in the electoral process, are all unacceptable.
The rule of law is the foundation of a civilized society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect.
Speaking during a public lecture on the rule of law in Zimbabwe, organised by the Centre for Applied Legal Research, recently, Retired Judge November Mtshiya said Zimbabwe is still far from achieving a world class rule of law system citing a number of issues in the judiciary system which is hindering that.
He said the new Constitution adopted in 2013 incorporates most of the principles and fundamentals of the rule of law, a clear demonstration that Zimbabwe embraces the concept of the rule of law.
“The constitution of Zimbabwe Amendment [No 20] came into force after a National Referendum and it recognises the need to entrench democracy, good, transparent and accountable governance and the rule of law.
“It also commits to upholding and defending fundamental human rights and freedom. Sections 2 and 3 of the constitution of Zimbabwe emphasize the supremacy of the constitution and the founding values of the nation,” said Mtshiya.
There is no doubt that the Judiciary with the support of other arms of government plays a pivotal role in the promotion and protection the rule of law.
The new constitution also provides for the establishment of the Anti- Corruption and Human Rights Commissions. These are independent commissions whose functions also aid to the protection of the rule of law in Zimbabwe. The effectiveness of these commissions is yet to be tested.
The picture painted by the establishment of the commissions is that Zimbabwe, as a constitutional democracy, and one of the so called transitory states, has put in place legislation that promotes and protects the rule of law.
The big question is “What is the reality on the ground?”
According to Justice Mtshiya, there are threats to the rule of law in Zimbabwe.
“Our existing laws clearly call upon the law enforcement agencies and the courts to enforce and apply the laws of Zimbabwe impartially, fairly and equally. There are many actors involved in achieving that role, the decisive ones being the three arms of government.
“As long as these three arms of government have the same understanding and appreciation of the existing laws of the country and uphold the constitution and the laws of the country, it will not be difficult to deliver justice to the citizenry,” Rtd Justice Mtshiya said.
In a nutshell, the legislature, the executive and the judiciary are constrained by the principle that they may exercise no power and perform no function beyond that conferred on them by the law.
The rule of law prohibits arbitrary decision making and vague legislative provisions, that is to say the rule of law requires rational decision making.
Rtd Justice Mtshiya, in his presentation said that there is the talk about “judiciary capture” by the executive but was quick to dismiss to dismiss the allegations.
“In my view, Zimbabwe, as provided by the constitution, has an independent judiciary, manned by the professional and qualified men and women. These men and women have taken their oaths or affirmations of office seriously,”
He added that judges should not be influenced directly or indirectly by anyone when making their decisions.
One of the many traits of the lack of rule of law is the disobedience of court order and there are several examples where the court has been disobeyed.
Of note is the NERA and ORS vs Police Commissioner General and ORS (HC 8940/16 where besides a court order granted by the Magistrate’s court for NERA to demonstrate, the police general issued a statement forbidding any demonstrations for two weeks which was a clear violation of the rule of law.
Another trait of violation of the rule of law is the delay in the alignment of the laws to the new constitution.
The new supreme law may now be amended to suit legislation that was there before it was adopted.
Such a backward move will certainly be contrary to the wishes of the people of Zimbabwe, whose vies were tested through a referendum. That should not be allowed and it also creates problems for those tasked with interpreting the law.
That being said, Zimbabwe has in place, the mechanisms or structures that protect the rule of law.
What is needed is the will and correct mind-set , particularly on the executive part, to ensure that mechanisms or structure deliver justice to the people and that the rule of law be respected