Zimbabwe faces a mass exodus of lawyers if Robert Mugabe emerges victorious from this weekend's elections. And if anyone needs any more convincing of a possible meltdown of Zimbabwe's legal system, they need look no further than a recent report by the Amani trust, a coalition of human-rights groups. The trust records acts of political violence and its latest instalment logs 159 instances of torture, four rapes and eight murders in the first two weeks of February alone.
If Mr Mugabe holds on to power following this weekend's election, many lawyers fear that the rule of law, such as it is, will finally and irrevocably break down. "The courts will become even more openly aligned with the government, and any prospect of this country having a free and fair judiciary will have gone forever," predicts Adrian de Bourbon, the chairman of Zimbabwe's Bar Council. "More lawyers will leave the country and more judges will resign."
As this election has drawn closer, increasingly people have been drawn into the violence – including lawyers. A mob of 150 so-called war veterans stormed the Law Society's offices a few weeks ago in pursuit of a lawyer, Raymond Baretto, whom they caught and beat up. This is not a one-off. Tawanda Hondora, the chairperson of Zimbabwe Lawyers for Human Rights, was brutally beaten by supporters of the governing party last April. The lawyer was investigating allegations about the harassment of voters in a local election in Sadza Growth Point, 50 miles outside Harare. He was attacked by 30 people in Zanu-PF T-shirts and took refuge in a police station. The officers looked on and eventually joined in the attack. The lawyer was badly bruised and left with a broken jaw. So far, the Law Society has reported four such attacks on its members but the police have not acted on its complaints.
Of course, the butchery of the law in Zimbabwe long predates the harassment of its lawyers. David Coltart, a lawyer and MP for the opposition party, has specialised in human rights for 18 years. He believes that the world has failed to understand that Mugabe hasn't changed since he came to power 20 years ago. "He's simply been uncovered," he says. "I've seen the law subverted for all these years and the only difference is that, until now, it wasn't done in such a brazen way."
As an example, Coltart cites a legal challenge against the use of hanging in the early 1990s. The lawyer argued that it was a "cruel and unusual punishment" and so breached the constitution. So the Mugabe government rewrote the constitution. "A subtle way of subverting the law but effective," Coltart notes. According to Coltart, the present regime's disdain for the law was exposed by events in 2000, when war veterans invaded farms. The government accepted the occupations were unlawful but refused to enforce court orders to end them.
The judiciary has proved a fierce advocate against the government's land-reform programme, but over the past year it has paid a price. The forced resignation last April of the former chief justice Anthony Gubbay, amid intimidation and threats of violence, signalled a new phase of lawlessness. "It was the defining moment that the rule of law had finally collapsed," recalls Adrian de Bourbon. Since then, five High Court judges have resigned and the independence of the Supreme Court has been significantly eroded. "Unless there is a change of government, nothing will change that," the barrister reckons. "The judiciary will remain loyal to the government rather than the constitution."
The newly rigged Supreme Court effectively OK-ed Robert Mugabe's plans to seize white-owned farms in December. The only dissenting member, Judge Ahmed Ebrahim, delivered a caustic retort to ministers and the more government-friendly members of the bench. It was not "the function of the courts to support the government of the day" but "the court's duty was to the law and to the law alone", he reminded them. "Otherwise this would truly deserve the epithet that was once attributed to the short-lived Rhodesia and Nyasaland Court of Appeal – that it should have been abolished under the Lotteries Suppression Act," he said.
"In the climate in Zimbabwe at the moment, it takes guts to make a comment like that," de Bourbon notes. The barrister was acting for the Commercial Farmers' Union in this landmark case, some 85 per cent of whose members stand to lose land under the programme. However, last weekend it was reported that Judge Ebrahim (the last non-black Supreme Court judge), had resigned his office with effect from May.
But the judiciary can still fight back, as the Supreme Court did last week when it ruled that the government's decision to outlaw postal ballots was illegal. This opened up the election to half a million Zimbabweans living in exile who are unlikely to be Mugabe supporters.
Even the courts are not protected from the violence. Adrian de Bourbon recounts how at one stage, 200 "war veterans" invaded the Supreme Court. "They danced on tables, prevented the judges from sitting," he recalls. "Even though they seriously assaulted one of the police officers who tried to stop them getting in, not a single person has been prosecuted for that."
It was an incident that the International Bar Association raised with the Attorney General on its fact-finding mission to Zimbabwe last year. The delegation met leading members of the profession, including Chief Justice Gubbay, as well as representatives of the government all the way up to President Mugabe.
The IBA asked the Attorney General what steps he had taken after the invasion of the court. According to Ashwin Trikamjee, a South African lawyer who was in the delegation, "the sanctity of the court" had been violated "by gangsterism at its worst". However, the Attorney General replied that nothing had been done as no complaint had been made, despite the incident being front-page news. The IBA concluded in its report that the rule of law was "in the gravest peril".
For lawyers on the ground, there have been even more disturbing signs of the government's attitude towards the law in the final days before the election. Brian Kagoro, a leading black lawyer who specialises in human rights, feels that esoteric arguments about the rule of law are "problematic" as ministers have manufactured "the semblance of legality". He explains: "You still go through the ritual of a seemingly legitimate legal process but one that has been interfered with politically and where laws have been tinkered with to serve political objectives."
He cites the unexpected agreement struck by the Foreign Secretary, Jack Straw, with the Mugabe regime in September. Under the terms of the deal, there were to be no more illegal seizures of land held by white farmers, and the government pledged to adhere to the rule of law. "Unbeknown to Straw," Kagoro says, "the law had been amended to allow expropriation that otherwise would have been in violation of international law."
It is a view shared by David Coltart, who points to a recent rash of law-making, "undemocratic, draconian and basically fascist", which is "designed to subvert the election process". For example, he says that the electoral law has been amended allowing only civil servants to be election monitors and "criminalising" voter education. The Access to Information and Protection of Privacy Act, so far not introduced, sought to bring in repressive media laws and a new Public Order Act that has been used to close down demonstrations. Coltart had a constituency meeting ended recently by armed police under the public-order legislation.
Coltart sees the new legislation as a deliberate subversion of the rule of law with disturbing echoes from recent history. "The Nazis did exactly the same thing," he says. "They used the cover of law to abuse the rights of Germans, and that is what is happening here."Reuse content