Law as a Shield or as a Sword? No Easy Walk to Freedom for Zimbabweans

When law can do no right, let it be lawful that law can bar no wrong’ (Shakespeare, King John Act 3). Africa is replete with worrying and disturbing scenarios whereby the law is used as an instrument of oppression rather than liberation. This makes one to safely arrive at the conclusion that in most African countries the law is being used as a sword rather than as a shield to defend the citizens’ rights against encroachment from the excesses of the state.It can be vouched with certainty that the Zimbabwean case is a striking illustration of a country with ‘fractured constitutionalism’. A country, according to (Uzoukuwu, 2010) with an arrangement where a constitution has features of constitutionalism but the practice of constitutionalism is ominously absent or missing. Like in South Africa, it’s worth quoting Sachs (1990) who argues that, ‘the battle for human rights in our country has essentially been the struggle for the vote and not for the Bill of Rights’- so has been the struggle in Zimbabwe.

The struggle and contestation for rights is as old as humanity itself. In Zimbabwe the struggle for the realisation and enjoyment of rights and people’s freedom is far from over – taking a cue from the just ended 31st July elections. The obtaining events preceding the elections, during and post elections has clearly and unequivocally pointed out the shortfalls of the electoral laws in protecting people’s fundamental freedoms as constitutionally guaranteed under municipal law, in the Bill of Rights and in several other human rights legal statutes and instruments (both from a regional and global) level. In fact the just ended election has revealed the danger of relying on purely legalistic interventions in rights claiming and realisation. The inadequacy of the law in rights realisation –whereby the law has and continue to be used as an instrument of oppression rather than using the law as a stone upon which everyone can step and be saved has also become apparent for the naked eye to see.

For the record, it should be noted that Zimbabwe has a long checkered history of unsuccessful election petitions (since 2000 to date) which is indeed a blight to an emerging constitutional democracy. Consequently, this has led to the erosion and loss of public confidence in our judiciary system. Just imagine –

When citizens lose faith in the courts
When the wheels of justice seem to be exceedingly grinding slow-that is if they even grind at all
When justice eludes the poor

Indeed the Zimbabwean judiciary has become a site of contestation over its alleged politicization subversion and usurpation by the executive. Chief among its shortcomings is the handing in of activist judgments (judicial activism) in various cases that has been brought before the bench as well documented in the Zimbabwean legal jurisprudence. Many thus wonder whether the men and women in the bench are still protectors of citizen’s rights and freedoms or are mere pretenders? In most post-conflict and conflict zones the judiciary system has failed to dissociate the ‘living law and living politics’ – hence ultimately the judiciary remain ensnared and captured by the legislature and the executive. In such instances the judiciary lack in principle and in practice (praxis) of separation of power in the strict Madisonian and Jeffersonian sense. Such is the case in countries such as Zimbabwe, a country in which it seems there has been erosion in the systems of checks and balances.Nowander why the Zimbabwean government echoed the famous statement during the peak of the 2000 land invasions as a reaction to the ensuing court appeals

Chief Justice Gubbay is acting against the government that gave him his job and is paying his salary; he is biting the finger that feeds him’.

Reading from such pronouncements we can therefore agree with Abel (1995:8) who observes that, “the myth of the judge as a passive vehicle through whom the law mechanically finds expression encounters a number of inconvenient facts”. We should also stand reminded by Gubbay’s observation that, “The bedrock of a constitutional democracy is an independent judiciary”. But when the judiciary ceases to function independently as the case in Zimbabwe – what more can we expect? When the complainant’s lawyers are supposed to be arrested in a constitutional democracy, we are all left with many questions than answers. Isn’t this akin to a situation of rejecting and denying the aggrieved of his/her rights?

Consequently, this makes many to wonder whether the law is worth the paper it is written on, as some will believe ‘it is not worth the paper it is written on….’.This happens in a country when the law only becomes a piece of paper which is difficult to waive in an authoritarian context. A law that is built on quick sand and ever shifting sand – it is a law that reflects the politics of the day. It is the dark sides of virtue! Reflecting on the Zimbabwean case, one can safely agree with Singer (1990:1841) who posits that, “When we ask ourselves whether a social or legal practice works, we must ask ourselves, ‘works for whom?’ Who benefits and who loses from existing political, economic and legal structures?” In the same vein, Zimbabweans can also agree with Sachs (1990:32) writing on a South African case when he opines that,

We do not know what it means to have constitutionally entrenched Bill of Rights. We are unfamiliar with the notion of constitutionalism and constitutional rights.

The long walk to freedom is far from over. In an authoritarian regime where the law is used as a sword rather than as a shield the struggle for rights realisation is a nightmare. But, the time for speaking truth to power is now or never! In a democracy why is it criminal to criticize and talk openly about the shortfalls of the judiciary?

Maybe we need to draw lessons from best practices elsewhere in countries such as Kenya


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