THE EDUCATION BILL: WHAT YOU NEED TO KNOW

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The Education Amendment Bill is currently before Parliament. The proposed law introduces some important changes to the Education Act which governs education policy in Zimbabwe. Given the far-reaching, bipartisan nature of the Bill, every citizen must be familiar with some of the key changes that the law seeks to introduce.

One major criticism is that the bill does not provide for the safety of students and teachers in circumstances where they may be subjected to political involvement. That said, there are progressive aspects of the bill, including the incorporation of some key constitutional principles into the statutory framework.

In my capacity as Education Secretary of the MDC, I have prepared a concise, summary of the Bill to enable the public to be familiar with some of the changes that are currently being debated in Parliament.

This is what you need to know.

What is the purpose of the Education Amendment Bill?

The purpose of the Education Amendment Bill is to align the Education Act [Chapter 25:04] with the Constitution.

The Education Act was enacted on the 8th of June 1987. The purpose of the Education Act is to set out the objectives of and fundamental rights pertaining to education in Zimbabwe. The Act also provides for the establishment, maintenance and regulation of Government schools, Government teachers’ colleges and other Government educational facilities as well as the establishment and administration of non-Government schools and teachers colleges. It further governs the registration and control of educational institution and the transfer of teachers to the Civil Service.

What does the Constitution say about the right to education?

Section 27 of the Constitution provides that the State must take all practical measures to promote free and compulsory basic education for children. The State is also directed to promote higher and tertiary education. In terms of the same section, the State must take measures to ensure that girls are afforded the same opportunities as boys to obtain education at all levels.

Section 75 of the Constitution provides that every citizen and permanent resident of Zimbabwe has a right to basic State-funded education, including adult basic education, which the State, through reasonable legislative and other measures must make progressively available and accessible. The section goes on to establish very person’s right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided that they do not discriminate on any ground prohibited by the Constitution.

 Non-discrimination

Section 4 of the Act prohibits discrimination on the grounds of tribe, place of origin, national or ethnic origin, political opinions, colour, creed or gender. Clause 3 of the Bill adds further grounds on which it is impermissible to discriminate against a child on admission to school, namely, nationality, class, custom, culture, marital status pregnancy, social status and legitimacy.

It must be borne in mind that schools that are established by bona fide religious organizations are exempt from the provisions of section 4 as they apply to creed.

“Basic state-funded education”

Clause 4 of the Bill seeks to amend section 5 of the Act, which provides that is the objective in Zimbabwe that primary education for every child of school-going age shall be compulsory and to this end it shall be the duty of the parents of any such child to ensure that such child attends primary school.

The Bill repeals this entire section and replaces it with a provision which, adopting the language of the Constitution, states that every child shall be entitled to basic state-funded education.

The Bill defines “basic state funded education” to include education from early childhood education up to grade seven, adult education up to grade seven or any other category as may be declared as such by the Minister by notice in the Gazette from time to time subject to section 75 of the Constitution.

Mandatory land for school infrastructure

Clause 5 of the Bill adds a new sub-section to section 8 of the Act which makes it mandatory for every local authority in Zimbabwe to provide land for school infrastructure.

Payment of registration and annual fees by non-governmental schools

Clause 9 of the Bill seeks to introduce a new provision which requires every school that is not a government or “faith-based school” to pay a registration fee and an annual fee as may be prescribed by the Minister. The Bill does not define “faith-based school.”

Adult and non-formal education

Clause 10 of the Bill requires every school to “endeavour” to offer non-formal education including adult education.

National Education Advisory Board

Clause 11 of the Bill seeks to amend section 33 of the Act to require the National Education Advisory Board to meet at least once every quarter.

According to section 28 of the Act, the purpose of the Board is to advise the Minister and make recommendations on matters of education to which the Act pertains.

Languages to be taught in public schools

 Clause 12 of the Bill seeks to repeal section 62 of the Act, which, among other things, only recognizes English, Shona and Ndebele. The Bill states that every school shall “endeavour” to teach every recognized language.

In terms of section 6 of the Constitution, Chewa, Chibarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, Sign Language, Sotho, Tonga, Tswana, Venda and Xhosa are the officially recognized languages of Zimbabwe.

Clause 12 of the Bill further states that every school shall “endeavour” to ensure that the language of instruction shall be the language of examination and ensure that the mother tongue is used as a medium of instruction in early childhood education. However, the use of these official languages is subject to the availability of State resources and subject to the availability of teachers, examiners, textbooks and other educational materials necessary for instruction in these languages.

Appointment of sexual and reproductive health personnel

Clause 13 of the Bill seeks to amend section 64 of Act to empower the Minister to make regulations that govern the appointment of sexual and reproductive health personnel in schools.

Use of emerging technologies in education

Clause 14 of the Bill seeks to amend section 69 of the Act to empower the Minister to make regulations that govern the use of emerging technologies in education.

Feeding schemes

Clause 14 of the Bill seeks to amend section 69 of the Act to empower the Minister to make regulations that govern the manner in which feeding schemes may be conducted at schools.

Pupil Discipline and Corporal Punishment

Clause 15 of the Bill seeks to amend section 68 of the Act to include a requirement that the responsible authority at every school shall draw up a disciplinary policy for the school. Clause 15 seeks to outlaw the resort to any treatment which does not respect the human dignity of a pupil, which amounts to physical or psychological torture or which amounts to cruel, inhuman or degrading treatment or punishment. This clause further seeks to incorporate a clause that affords a pupil, with the support of his or her parents, the right to be heard before the pupil is suspended. Clause 15 seeks to firmly prohibit a teacher from beating a child.

Pupils with disabilities

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68B which requires every school to provide infrastructure suitable for pupils with disabilities, subject to the availability of resources. The same clause seeks to empower the Secretary to monitor and enter schools to ascertain whether the rights of pupils with disabilities are being taken into account in teaching and learning. Every school will be required to submit a plan highlighting how the school shall advance the rights of pupils with disabilities.

Pregnant pupils

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68D, which prohibits the exclusion of a pupil on the basis of pregnancy.

Non-payment of school fees

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68D that prohibits the exclusion of a pupil for non-payment of school fees.

Basic Education Fund

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68C that creates a Basic Education Fund to fund educational infrastructure and support the payment of fees for pupils who genuinely cannot afford. The activities of the fund are to be funded by monies appropriated by Parliament or donations, grants or bequests approved by the Minister.

 

 

 

 

 

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The future of education in Zimbabwe

Yesterday, I went to St Michael’s Junior School. My older brother had attended this school in 1990, almost thirty years ago. My little brother had followed suit in 1994. I remember my dad dropping us off at school in his box Sunny ridiculously early on chilly mornings. I had schooled across the road at Hellenic. My mom’s employer held desks there. As a nurse in private practice, she could afford a decent education there for me.

As I drove into my brothers’ old school, nothing had changed but everything had changed – much like the country. I recognized one of the nuns, Sr Margaret, who had taught my little brother all those decades ago. Her hair was now snow white but she maintained a good rapport with the boys.

I had been asked by one of the parents to come and speak to their pupils about becoming a lawyer. After a decade of practising law and several years of teaching it, I know that simple is complicated. How do you deconstruct notions of justice, constitutionality or criminal responsibility to a group of 8 to 11 year old boys? A little nervous, I entered the school hall in my black robe, black pin-striped suit and crisp, white jabot. I also carried my barristerial blue bag which contained a brief bound in red ribbon. I wanted them to get a sense of daily courtroom life.

I opened my presentation by asking them, “what am I?”

“A lawyer”, they screamed out.

“What do you think is in my bag?” I retorted.

“Money!!!” they yelled back.

So began our conversation about what lawyers do and why the profession is important. We talked about the need always to tell the truth, to read widely and to help people solve problems. I told them that they would one day meet a girl. “Eeeeuw”, they all said. I told them that they could fall in love and decide to get married. “Yaaayyy”, they all said. I explained that things may not work out and they may need to get divorced. “Noooo,” they all said. I told them that they would need a lawyer to help them part ways and live happily ever after. “Aaaaah,” they all said. I even gave them some homework – to ask their parents what a Constitution is.

I envied their enthusiasm and zest for life. Education is the bedrock of any society. I have always been taught that education is the power to think clearly, the power to act well in the world’s work, and the power to appreciate life.

Against this background, I look forward to my new role as the Secretary for Education, Sport, Arts and Culture in the country’s main opposition party, the Movement for Democratic Change. Education is a national policy issue on which there must be broad consensus. Regardless of our different political leanings, what we can agree on is the fact that without a strong, well-funded education system, Zimbabwe cannot leap into the future.

We often pay lip service to the importance of education yet we have failed to preserve respect for the teaching profession.We have failed to make a concerted investment into maintaining our schools, building new ones and bringing our curriculum into line with modern trends. Our schools in the rural areas are shambolic. Technology is outpacing our teaching methods. We have ignored the fact that mother tongue tuition forms the basic building block for all other learning; we do not have enough textbooks in the various indigenous languages in Zimbabwe. We do not include a full and relevant study of civics but expect citizens to be informed and responsible upon leaving school. We have not sincerely reviewed our History curriculum to ensure that children are taught the full, untainted story of how Zimbabwe came to be to ensure that clarity of mind is developed to enable us to move forward. Most importantly, we have left out civics.

I look forward to championing education during my tenure as Secretary of this important portfolio. I strongly believe that education oughtn’t be an indoctrination through which we churn out master crammers. Rather, education must be the means by which we build men and women adept to deal critically and creatively with reality and discover how to participate in the transformation of their world. Our education must be forward-looking. It must inspire critical and original thinking.

I will shadow the sitting Ministers of Education and hold the to the ideals set out in the Constitution and best practice globally. We will participate in the debates around the Education Bill. Consistent with our mandate as a government in waiting, we will prepare a granular White Paper on Education with recommendations on how to approach the challenges the Zimbabwean education sector faces. We will consult widely and draw on the expertise of the many educationists, learners and parents. We will pilot projects that will inspire fresh approaches to learning in Zimbabwe.

I undertake to take the attitude of a student, never be too big to ask questions, never knowing too much to learn something new.

“Let us pick up our books and our pens. They are our most powerful weapons. One child, one teacher, one book and one pen can change the world.” – Malala Yousafzai 

Of Cattle, Goats and the Movable Property Security Interests Bill

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Introduction

As the economic situation in Zimbabwe continues to decline, the government has had to resort to gymnastic levels of innovation to overcome challenges around productivity, liquidity and access to capital. Some of the innovations introduced in an attempt to deal with the economic downturn include the introduction of bond notes (the Reserve Bank Governor’s version of fictitious, locally printed money touted as equivalent to the United States dollar), the suggestion by the Minister of Education that school fees be payable in the form of livestock – that is, cattle and goats and new legislation to enable the owners of movable assets including livestock to use such movable assets as security for bank loans.

Traditionally, financial institutions prefer to give loans on the back of immovable security, that is, a home, a commercial property or land. The rationale underlying this traditional approach is that immovable property is more secure than movable property because title deeds formally registered with the Deeds Registry can be presented as proof of ownership of the immovable property. This leaves less room for a dispute as to whether the person who encumbered the property had the legal authority to do so. Additionally, a mortgage bond can be registered in respect of immovable property to prevent the sale of the property before the loan has been fully repaid. It is also impossible for the debtor to run away with an immovable asset. All these factors combine to make immovable property more attractive as security for a loan than movable property.

The Movable Property Security Interests Bill seeks to disrupt the traditional approach to securitising loans by providing for the registration of movable property security interests. In other words, the Bill intends to create a more secure framework for the use of movable property, such as cars, furniture, cattle and goats, as collateral for the repayment of loans.

Why is this Bill being introduced?

According to the Parliament of Zimbabwe website, the Bill is part of government efforts to improve the ‘ease of doing business’ in Zimbabwe. The ‘ease of doing business’ index is an index created by the World Bank Group and according to the Herald of the 15th of December 2015, the Bill was drafted by a World Bank consultant.

The World Bank Report on Doing Business and the Global Secured Transactions and Collateral Registries Program’ revealed that the ‘Doing Business Project’ has influenced over 300 regulatory reforms around the world, by measuring and tracking changes in the regulations applying to domestic companies, including secured transactions. The Doing Business Report 2012 revealed that between June 2010 and June 2011, 21 jurisdictions reformed their secured transaction laws. The goal of the Secured Transactions and Collateral Registries Program is to increase access to credit for businesses, especially small to medium enterprises, by providing technical advice on implementing secured transactions laws and developing collateral registries to facilitate the use of movable assets as collateral.

Most Zimbabweans fail to access credit facilities from lenders due to lack of collateral in the form of immovable assets. It is estimated that more than 80% of Zimbabweans are informally employed and do not have access to credit facilities. The World Bank, being one of the advocates of the Movable Property Security Interests Bill, argues that small to medium enterprises play a pivotal role in economic development. However, they are less likely to secure bank loans due to, inter alia, a weak regulatory framework, limited bank financing and few financing alternatives for start-ups. The World Bank notes that about 50% of formal small to medium enterprises do not have access to formal credit facilities. According to the argument, this calls for the introduction of innovative ways to unlock  much needed capital. The proposed Bill therefore, seeks to create an enabling environment whereby small to medium enterprises and the general public would be able to use their movable assets to secure loans.

Zambia and other jurisdictions in Africa and other parts of the world appear to have adopted this approach already and for the same reasons argued for by the World Bank.

Is the use of movable property as collateral for loans a new idea?

As a matter of law, the use of movable property as special security for the payment of a debt or generally the performance of an obligation is not new. For example, the law recognizes that a pledge can constitute special security over movable property. Equally, a notarial bond provides a means by which a debtor may hypothecate movable property without delivering it to the creditor in whose favour the bond is passed. Hire purchase agreements rest under similar principles.

It is therefore not disputed that the law can and should enable movable assets to be used as collateral to secure a loan agreement.

However, the legislative device that has been invoked through the expedient of the Bill in question is not without problems and the outcomes hoped to be achieved may not be realized if the Bill is enacted without amendment.

Will this new law mean cattle and goats may be used as collateral to secure bank loans? 

In a recent address to Parliament, Mr Patrick Chinamasa, the Minister of Finance, said the Movable Property Security Interest Bill would make it much easier for those with movable assets, such as livestock to get bank loans. This led to a flurry of newspaper headlines about how Zimbabwe plans to secure bank loans with cows. This interpretation is accurate in view of the fact that clause 2 of the Bill defines “movable property” as “any tangible or intangible property other than immovable property”. Livestock including cattle and goats would fall within the ambit of this definition.

The suggestion around references to livestock centres around the idea that farmers, especially rural farmers and beneficiaries of the land reform program in Zimbabwe will finally be able to obtain loans by using their livestock as collateral. One of the leading explanations that is given for the lack of productivity on Zimbabwe’s farms is the lack of access to capital for farmers.

What is the solution to the “collateral problem” farmers face?

According to clause 4 of the Bill, a new department known as the Collateral Registry will be created by the new law. Clause 5(1) of the Bill states that the purpose of the Registry is “to facilitate commerce, industry and other socio-economic activities by enabling individuals and businesses to utilise their movable property as collateral for credit”.

The difficulties that many a new farmer has experienced in raising capital are well documented. However, if the government were genuine about empowering the rural farmer, it would start by giving the rural farmer or tiller of agricultural land security of tenure. According to section 72(2) of the Constitution of Zimbabwe, which is the supreme law of the land, all agricultural land vests in the State. This means that no farmer in Zimbabwe holds title to his land. It follows that no farmer in Zimbabwe can use his land as collateral to secure a loan.

With all due respect, the government cannot approbate and reprobate – claim to be empowering small business, particularly farmers, by introducing laws that expand the notion of real security and in the same breath continue to deprive farmers of the most potent form of real security – title to land. Land tenure in the agricultural sector has worked before. Why not revert to a winning formula? This is what I would have expected the World Bank consultant to be devoting his or her energies to. The re-awakening of the Zimbabwean economy is not a matter of ticking boxes or applying without thought or amendment a notion that has been applied in other jurisdictions. It is a matter of addressing the fundamental cause of the problem, with appropriate regard to the context of the nation where the problem exists.

It begs no mention that Zimbabwe requires a productive and thriving agricultural sector in order for the economy to function profitably and sustainably. Once the agricultural sector kicks into motion, industry will re-awaken. Jobs will be created. The import bill will be drastically reduced. The country will have goods to export which will in turn create foreign currency earnings for the country. Infrastructure, including roads, dams and bridges will be built to support the agricultural sector and our fortunes will be in a better position to improve.

Therefore, if any commodity is crying out to be turned into collateral – it is agricultural land. Once land tenure is created for agricultural land, not only will such land be available for use as collateral for bank loans but it will mean the holders of such land will be more secure. As things stand, most of the farmers in possession of agricultural land hold such land on the strength of an offer letter – the clear terms of which are that the State can withdraw such land at any time and for any reason the State deems fit. most farmers would not have the financial muscle or wherewithal to challenge the withdrawal of their right to use the land. They therefore are left fully exposed and have very weak property rights in respect of the land they utilise. It is irrational to suggest that a farmer who tills agricultural land should be placed in a position where he or she gives up his or her livestock as collateral to obtain a loan for farming purposes in circumstances where the land can be withdrawn at any time by the government. The farmer would be left completely exposed if he has used his livestock as security to obtain money to put a crop in the ground then the land is forcibly acquired for re-allocation as tends to happen. Both the land and the livestock would be lost! It would make more sense to use the land primarily as security. (At the very least, add movable property security interests legislation to a framework that has fully exhausted the potential for the full use of immovable property as security. Immovable land is better suited to this purpose as highlighted above.) Such respect for property rights in the true and full sense would no doubt improve the ease of doing business in Zimbabwe.

It is always preferable to solve problems at their root than to proffer piecemeal solutions that only paper over the symptoms and ignore fundamentals that are in hopeless disarray.

How accessible is the process for a small business, ordinary farmer or lay individual?

For a process that is designed to cater to the needs of a low-income market, the process for registering a security interest in an item of movable property is extremely complicated and the legislation is not cast in a user friendly manner – as would have been expected for a market that is unlikely to have access to formal legal representation to assist in the securitisation process. To illustrate the point, a “registered notice” is defined as “a notice of a security interest registered in the Registry, and includes an electronic communication to the Registry of information in an initial registered notice, an amendment notice or a cancellation notice.” How is a rural farmer or the owner of a small business meant to interpret this definition?

After much convoluted language, clause 9 provides that a registered notice shall be deemed to be the definitive record of any record or obligation recorded therein – and presumably, on an application of clause 9(2), a certificate confirming the contents of a registered notice can be issued as proof of the contents of the registration notice. The Bill does nothing to provide for what this “certificate” is or how it is issued. Clause 11, the section that deals with regulations similarly is silent on this issue.

After reading the Bill, one is left with more questions than answers on how the system is to work in practice. There is a need to (i) simplify the process and (ii) simplify the language of the legislation of the desired outcomes – i.e. creating a user friendly framework for small business to use their movable assets is to be achieved.

Is there adequate protection for the debtor?

Clause 8 of the Bill allows the loan agreement to make a provision for a creditor to seize the movable assets from a debtor before the finalization of court proceedings. This places the debtor in an extremely weak position as a creditor can descend on the property with no notice and before the rights of the parties have been finally determined. The potential for disaster ought to be immediately clear in the event that the movable property concerned is livestock which requires strict methods of transportation, storage and upkeep to be observed.

While it is understood that the interests of a creditor must be secured, the Bill as it stands creates the potential for unfair contractual terms to be imposed on a small business or lay person who does not have the bargaining power to protect his or interests. This would undermine the essence of the legislation which is to empower small businesses to unlock capital. the unlocking of capital must not come with inadequate legal protection against the loss of the collateral asset.

Is there adequate protection for the creditor?

In addition to the traditional reasons attaching to the undesirability of accepting movable assets as collateral, it must be highlighted that the Bill does not do enough to ensure loans given by a creditor are secure. There is no mechanism in place to ensure that a person who registers a notice on movable property in their name is in fact the owner of the property. This could lead to disputes around ownership pursuant to a registration. The Bill does not state how such a dispute would be resolved. Clause 10 of also Bill exempts the Reserve Bank and the Collateral Registry from liability in the event that a mistake is made. This could have disastrous consequences in the event that a lender acts on erroneous information provided by the system, albeit bona fide. The said lender would be left with no recourse at law – a factor that could militate against lenders having confidence in the system. The Bill ought to provide stronger safety nets in this regard.

There must also be stronger safeguards against the potential for corrupt practices as trust will be paramount to ensure the system works.

Who holds the movable property during the subsistence of the loan?

The Bill appears to be silent on the question of who possesses the secured property during the period that the loan agreement is in operation. Clause 21(1) of the Bill seems to suggest that it can be either the debtor or the creditor – presumably depending on the agreement between the parties. It is my respectful view that insufficient thought has been devoted to the modalities of the possession of the secured movables pending repayment of the loan. This anomaly has the potential to leave both parties exposed. If the collateral were an immovable property, this question is answered by the fact that the debtor can continue to hold the property and because it is fixed, this is not risky. In the case of movables, there is a real risk and possibility that the holder of the movable property can disappear with it or consume it – leaving the creditor exposed. Criminal sanction is not a sufficient answer to this concern to a lender who simply wants their money back. Equally, if the creditor is to hold the property, the question becomes – where is it stored? How can the property be retained in good order?

All that the Bill says in answer to the above at clause 21(1) is that “A debtor or secured creditor in possession of the collateral must exercise reasonable care to preserve the asset.” The question that arises is, what is “reasonable care”? In the event that the movable asset is livestock – what happens if the animals are infected by disease or are ravaged by drought despite the possessor’s best efforts? A possible solution may be to insure the movable property – but, how likely is a small business to be able to afford the cost of such insurance and the all the fees required to be paid at each stage of the process? This state of affairs will be compounded by the weak bargaining power a small business or individual farmer will have in the contract-making process. More protection is required to secure the position of a small-time borrower.

Conclusion

In conclusion, celebration around the measures sought to be introduced must be accompanied with caution as it will not just be a case of owning a car or cows and consequently being entitled to bank loans. Despite what has been reported in the media, the Bill does not compel any banking institution, micro-financier or other lender to accept movable assets as collateral – such a provision would be unconstitutional in any event. The decision as to whether to accept movable assets as collateral will remain with the bank or lender concerned pursuant to a full risk assessment and depending on the availability of funds for this purpose. All the law can do is create a framework that encourages the acceptance of movable property as security, primarily through enabling the registration of the secured interest. Additionally, the law places a borrower in a very weak position – which could lead to more loss than gain. While reform in the law is a good thing, there can be no substitute for reforms that deal with the fundamental problems as opposed to reforms that paper over the cracks. At the heart of any recovery process in Zimbabwe lies the need to address the big elephant in the room which is the need for more secure protection for property rights. Without reform in this area, we will continue to reel under superficial high sounding policies that ultimately do not lead to a sustainable change in the country’s fortunes – no matter how well-intended.

(C) Adv Fadzayi Mahere. Mahere is a constitutional lawyer who practises at the Harare Bar and lectures Property Law and Administrative Law at the University of Zimbabwe.

Please do not reproduce without the author’s permission.

“Bond notes” and the law: A further thought

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Following the proposal by the Reserve Bank Governor, Dr John Mangudya, to introduce “bond notes” to operate “alongside” the multi-currency system currently in force in Zimbabwe, various legal experts have suggested that a legal framework may exist in terms of which the “bond notes” may be introduced.

I remain of the respectful view that the proposed introduction of “bond notes” by the Governor breaches the provisions of section 68 of the Constitution which requires the Governor, as an administrative authority, inter alia, to act lawfully, reasonably and in a fair manner. I have maintained that, currently, there appears not to exist a legal framework within which the “bond notes” will operate. Their introduction in my humble view would be accordingly unlawful.

The legal experts who have suggested a legal framework exists have relied on the provisions of Part VI of the Public Finance Management Act, the possible applicability of which I have discussed in a previous piece. In sum, I have argued that it is not lawful to introduce “bond notes” as envisaged by the Governor by the expedient of that Act. Its provisions to not contemplate what the Governor proposes to do through the introduction of fictitious “bond note” money.

Regrettably, Part VI of the Public Finance Management Act has in fact been repealed. It is no longer part of our statute books. Section 39(c) of the Public Debt Management Act [Chapter 22:21] repeals the whole of Part VI of the Public Finance Management Act. It follows, as observed by another legal expert, that the entire Public Finance Management Act argument does not arise.

It begs no mention that repealed law is no law at all. The law does not permit an administrative authority to purport to exercise a power arising from a law that no longer exists.

That said, it appears that no competent legal basis has yet been found upon which the Governor can rely upon to lawfully introduce bond notes as he proposes to do.

(C) Fadzayi Mahere. Not to be reproduced without the author’s prior permission.

A legal opinion on Mangudya’s decision to introduce “bond notes”

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Mangudya “creates his own version of the US Dollar”

On the 4th of May 2016, the Reserve Bank Governor of Zimbabwe, Dr John Mangudya issued a press statement wherein he indicated that “the Reserve Bank has established a USD200 million foreign exchange and export incentive facility which is supported by the African Export-Import Bank (Afreximbank) to provide cushion on the high demand for foreign exchange” in the country. The facility would be implemented through the medium of Zimbabwe “bond notes” in denominations of $2, $5, $10 and $20 and would be introduced into the economy in two months’ time. The bond notes are set to operate as an extension of the current family of bond coins which were introduced in December 2014 to address the challenge of obtaining small change in daily transactions. The Reserve Bank Governor further introduced a limit on daily cash withdrawals with the public now only able to withdraw a maximum of $1 000, €1 000 and R20 000 from their accounts, with immediate effect. He stated that the bond notes shall continue to operate alongside other currencies and at par to the dollar. Dr Mangudya  further announced that, with effect from today, 40 percent of all new US dollar receipts will be converted to rand, “in order to restore and promote the wide usage of currencies in the multicurrency basket.”

Following this press statement, the media has been awash with possible economic justifications for the decisions made by Dr Mangudya. There has also been a public outcry with most fearing a return to the hyperinflationary chaos that characterized the 2007 and 2008 era in Zimbabwe. However, missing in the discourse is a consideration of the legality of the announcement and proposed measures by the Governor.

I wish therefore to offer my legal perspective here.

Applicable Law

The office of the Governor of the Reserve Bank of Zimbabwe is established in terms of section 14(1) of the Reserve Bank of Zimbabwe Act [Chapter 22:15]. In terms of section 68 of the Constitution, the supreme law of the land, every (Zimbabwean) person has a right to [administrative] conduct by the Reserve Bank Governor that is inter alia lawful, reasonable, proportionate and both substantively and procedurally fair. His constitutional duty in this regard is echoed in section 3(1) of the Administrative Justice Act [Chapter 10:28]. According to section 3(1) of the Administrative Justice Act, “an administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall act lawfully, reasonably and in a fair manner.” The term “administrative authority” is defined in section 2 of the Administrative Justice Act to include any person authorised by any enactment to exercise or perform any administrative power or duty. The Reserve Bank Governor, being the officer responsible for the day-to-day management, control, administration, operation and direction of the Bank in terms of section 19 of the Reserve Bank of Zimbabwe Act, falls neatly within the definition of an “administrative authority”. The Governor is therefore subject to the provisions of section 68 of the Constitution and section 3 of the Administrative Justice Act.

Applying the above legal provisions to the contents of the Governor’s press statement, I am of the respectful view that his decisions and conduct offend our constitutional right to administrative justice.

Lawfulness

Section 68 of the Constitution as read with section 3 of the Administrative Justice Act require the Governor to act in a lawful manner. It is established under our law that all administrative powers, including those of the Governor, must derive from statute and the nature and extent of those powers are to be found in the statutory provisions granting these powers.  Simply stated, this means that there has to be a legal basis, in Statute or delegated legislation for any decision that the Governor makes. The question to be asked is: what law authorizes the Governor to create “bond notes”, which bond notes then replace lawfully deposited US dollars.

It is worth highlighting that the term “bond note” is not defined anywhere in the Reserve Bank Act or the Banking Act [Chapter 24:20]. “Bond note” is not a term of conventional economics but an invention on the part of the Governor. It is clear that the law does not empower the Governor to create this, with respect, fictitious money.

Incidentally, the Reserve Bank Act does carefully delineate what powers the Reserve Bank has in instances where there is a shortage of currency of any denomination. In particular, section 42B of the Reserve Bank Act authorises the issuance of “Reserve Bank vouchers”, not “bond notes” where the Reserve bank is of the opinion that there is a shortage of currency of any denomination to pay civil servants or employees of the State. The shortage must be shown to require urgent action in the interests of public order or the economic interests of the State.

What is clear from this provision is that the Governor does not have a blanket power to create any document he thinks up to replace properly introduced currency. He also does not have the power to create such an alternative medium of exchange except where the shortage is specifically in respect of the payment of civil servants and where it is shown to be a public order emergency. The justification given by the Governor for the creation of bond notes is, therefore, inconsistent with section 42B of the Reserve Bank Act. The Governor’s justification for the curious move  relates to “foreign exchange stablisation” and an unsatisfactory attemot to ease the cash crisis. Respectfully, the law does not permit him to create alternative “money” for these purposes. It is clear that the law does not empower the Governor to make any plan he deems necessary for the purposes of resolving a cash crisis.

It can therefore be argued with great force that the conduct of the Governor in creating bond notes does not have the force of law and is therefore unlawful contrary to the requirements of section 68 of the Constitution and section 3 of the Administrative Justice Act. His conduct in taking away depositors’ hard earned dollars also arguably breaches their right to property and their right to use and transfer their property as enshrined in section 71 of the Constitution.

Substantive and procedural fairness

Section 68 of the Constitution also requires the conduct of the Governor to be “substantively and procedurally fair”. I am of the respectful view that the policies announced by the Governor are not substantively and procedurally fair to the citizenry. To illustrate the point, it cannot be fair to take money that a person has banked in US dollars away and give that person “bond notes” which the Governor admits are not currency. If they are not currency, what are they? What use are they to the business community if they cannot be used to import goods? In terms of what law or economic principle has the Governor decided that one bond note will be equivalent to one US dollar? It is basic that a person cannot arrogate to himself the power to decide the US dollar value of a piece of paper and impose it as a medium of exchange and transaction. Such an approach offends basic economics and all known law and procedure.

With respect, it is no answer as is suggested in the press statement, to contend that the bond notes are guaranteed by an “Afreximbank facility”. What is this facility? What law authorizes this approach? What does the “guarantee” mean? What are the terms of the Reserve Bank’s agreement with Afreximbank? Is a person entitled, if the guarantee is a true suretyship as envisaged by the law, to approach this bank with the bond notes and redeem in their place United States dollars? If the answer is no, then there can be no substantive fairness in the decision. It appears that the Afreximbank explanation is a smokescreen to lull the country into a false sense of security when what we have for all intents and purposes is a re-introduction of the Zimbabwe dollar, in circumstances where the economy is unable to shoulder such a burden.

Additionally, section 3 of the Administrative Justice Act demands that an administrative authority must give any person whose rights, interests or legitimate expectations may be affected by his decision “adequate notice of the nature and purpose of the proposed action”. In this regard, it could be argued that in imposing cash limits on less than 24 hours notice, the Governor acted in breach of his obligation to act fairly. Procedural fairness, in particular the audi alteram partem (hear the other side) principle enjoins the Governor to consult all stakeholders widely and to allow affected persons an opportunity to be heard before making a decision concerning their property. It follows that the Governor has very likely acted in breach of his constitutional obligation to act fairly. It is no answer for the Governor to say that he had to ignore the obligation to give fair notice to avoid immediate cash withdrawals. The obligations imposed upon an administrative authority by the Constitution are peremptory anf cannot be derogated from.

Reasonableness

The Governor’s decision has to pass the test of rationality. It can be argued that the decision of the Governor to introduce bond notes is not reasonable in view of the fact that the fundamentals that have led to the cash crisis, i.e. diminished productivity and our weak GDP have not at all been addressed. No sensible policy has been put in place to improve our exports and thus reduce the trade deficit. No thought has been given to the prospect of a black market developing in order to circumvent the stringent policies. If the concern is that certain foreigners e.g. the Nigerians and the Chinese are mopping up forex and externalising it, there has been no explanation as to why ordinary citizens have to be punished for this. The decision may also be said to be disproportionate in view of the corresponding harm that the new policies will create.

In solving one problem, it can be said that the Governor has created several more. All that the press statement addresses are the symptoms of the country’s economic problems. The fundamentals, e.g. the need to improve productivity, the need to introduce land tenure and the need to make Zimbabwe an attractive investment destination have all been ignored. the Governor complains of a trade deficit created by foreigners but ignores the fact that just three weeks ago the Minister of Indigenization was on the verge of closing all banks and did everything he could to scare away remaining investors. These are fundamental problems that cannot be resolved through the creation of monopoly money. The root causes underpinning the maladministration ought to be addressed. A painkiller will never effectively cure a bone fracture, which is what the conduct of the Governor respectfully amounts to.

Conclusion

One cannot escape the conclusion that the press statement points to an incremental approach geared towards bringing back the Zimbabwe Dollar, a prospect which many will agree is too ghastly to contemplate. It is hoped that further consultation on the issue, and an examination of whether there is a legal basis for the decision will lead to a rethink of the decision. The essence of administrative law is to check and balance executive power. The law ought to be invoked should the need arise in order to prevent an unlawful course of conduct. Failure to do so may result in an abuse of the Governor’s powers in breach of our Constitutional right to administrative conduct that is lawful, fair and reasonable.

(C) Fadzayi Mahere. Not to be reproduced without the author’s prior permission.

Forget quotas — a change in attitude is the ticket to the top for women judges in Zimbabwe

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In what is viewed by most citizens of Zimbabwe as a historic step, public interviews for the selection of Supreme Court judges were held in Harare yesterday. Of the ten candidates, four were women. Two of the women candidates failed to differentiate between a court action and a court application, an elementary aspect of Civil Procedure in Zimbabwean law, much like the distinction between debiting and crediting in Accounting. Their responses to the effect that the question was “too technical” and that they would “read up on it when elevated” were the cause of much hilarity for the gallery, which was mostly composed of lawyers, law students and journalists.

Yet, for any woman lawyer sat in the room, the reaction was more intricate – a melange of surprise, anger, embarrassment and shame.

It is accepted that the fight for gender equality in the legal profession in Zimbabwe – and throughout the world – is ongoing and vicious. This is not assisted by the fact that, until 1982, women in Zimbabwe were considered perpetual minors who lacked legal and contractual capacity. It is not surprising therefore that. at independence in 1980, there were no female judges in the High Court or the Supreme Court of Zimbabwe. The Supreme Court building was set up to house three male Justices only and had no facilities for female justices. There has never been a female Chief Justice or Deputy Chief Justice in Zimbabwe, nor has there ever been a female silk. To date, no woman has ever been appointed to the post of Attorney-General. Zimbabwe has never appointed a female Minister of Justice.

The injustice of this state of affairs is self-evident. There has to be a problem with a system that permits only male lawyers to be promoted to the top legal posts in this jurisdiction. At the same time, being a woman – in and of itself – does not not equip one with a sound legal mind. Confidence, intellectual and analytical ability, strong written and oratory skills, charm and integrity do.

Against this backdrop, the issue concerning how to achieve female representation in the judiciary in Zimbabwe without compromising on quality remains a vexed question. (This is obviously not to suggest that the women currently on the bench in Zimbabwe are of inferior quality – the record of several women jurists in Zimbabwe speaks for itself.) The Zimbabwean solution to ensure female judicial representation has been to implement a quota system. In terms of section 184 of the Constitution of Zimbabwe, “appointments to the judiciary must reflect broadly the diversity and gender composition of Zimbabwe.” The intention of the legislature in enacting this provision is clear: quotas are the quickest way to ensure women are elevated to the bench. Quotas can remove some of the structural barriers that prevent women from being appointed as judges, so the argument goes.

Yet, quite unwittingly, installing a quota system for judicial appointments is akin to affixing a band-aid to a fractured wound: various underlying problems remain.

Most importantly, an unfair impression is created that the women who have been elevated to judicial posts are there merely because they are women. Quotas in general are offensive and create the impression that, unless a special dispensation is created for women, we cannot succeed. Women who are elevated to the bench are thus perceived to be substandard, incompetent, elevated only due to an accident of biology. Additionally, women elevated through quotas are seen as “token”, may generally be less respected and will have less influence. Quotas also set women against each other, competing for a certain number of “women’s seats”, which might destroy co-operation and unity. Equally, it can be argued with great force that quotas distort the idea of representation because they create the false impression that only women can protect the rights and interests of women. The quota system also implies that women are to confine themselves to branches of law where there the issue of gender is relevant such as family law and the law of inheritance, to the exclusion of other branches of law such as the law of banking and negotiable instruments, tax law, insurance law and the law of insolvency. With so much emphasis on gender quotas in the new constitution and the current government, women are still, in some cases, only ‘getting’ something because of their gender. Unfortunately, even to this day, if a woman gets elevated to the bench, it would still be questioned whether she was actually the best candidate.

There is only one answer: one must be, first and foremost, a judge, with all the poise, competence and disposition that comes with the role – not merely a woman holding judicial office. Those who push for quotas for women don’t understand that the jurisprudential x-factor and internalized principles are what make outstanding judges, male or female. Our attitude and approach in this regard has to change. The capabilities of junior women lawyers must be nurtured from an early stage. Having more and more judges, who so happen to be women, will not transform the legal landscape.

One cannot ride affirmative action, identity politics or third-wave feminism to reach the legal hall of fame.

There, I said it.

Oscar Pistorius: “If it doesn’t fit, you must acquit”

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A bloodied cricket bat is playing a yet unclear role in the trial of Oscar Pistorius. The cricket bat has been compared to a bloody leather glove found at the scene of Brown’s murder in the trial of O.J. Simpson. At Simpson’s trial, the prosecution produced evidence that the glove found behind the bungalow on Simpson’s Rockingham estate had a mixture of blood from Simpson and his alleged murder victims. The prosecution decided to have a demonstration with Simpson trying on the gloves in court. Caught in full by the television cameras in the courtroom, Simpson was seen struggling to get the gloves on. He even said, “They’re too tight.” The fact that the glove of the supposed murderer could not fit the accused cast reasonable doubt on the prosecution case that Simpson had murdered his wife and her friend. The glove-testing episode was used to great effect during Cochran’s portion of the closing argument at Simpson’s trial and led to the now famous mantra by Johnnie Cochran: “If it does not fit, you must acquit.”

O.J. Simpson was subsequently acquitted of murder.

Barry Roux is obviously not Johnnie Cochran. Gerrie Nel is not Marcia Clark. South Africa is not the United States. Yet the trial of Oscar Pistorius, like that of O.J Simpson has gripped the world to the point where interesting parallels have been drawn between them.

Orenthal James “O. J.” Simpson is a retired American professional football player and actor. Following a lengthy and highly publicised trial, he was acquitted in 1995 of the murder of Nicole Brown Simpson, his ex-wife, and Ronald Goldman, her friend. Various commentators have drawn comparisons between the trial of O.J. Simpson and the current trial of South African sprint runner, Oscar Pistorius. Both have a background in professional sport. Like Simpson, Pistorius has been charged with the murder of a glamorous blonde with whom he had a relationship. The trials of both have gripped the attention of the world and brought to the fore questions about the sincerity of modern criminal justice systems.

While some broad similarities exist in the lives, circumstances and trials of these two athletes, there are some important differences. Simpson was divorced from Nicole Simpson when she was found stabbed to death with Ron Goldman at Nicole Simpson’s home in Los Angeles in June 1994. However, Pistorius was still in a relationship with his girlfriend, Reeva Steenkamp, when he shot her to death through their bathroom door on Valentines Day in 2013. Simpson was black and Pistorius is white. On this score, race played a pronounced role in the O.J. Simpson trial, Yet, despite South Africa’s issues with racism, race is not a theme in Pistorius’s trial – apart from the (perhaps wild) allegation that Pistorius believed the intruder was black and was therefore happy to ‘shoot to kill.’

In terms of evidence, things are also quite different: Simpson claimed to have not been at the house, so much of the evidence revolved around placing him at the scene. Pistorius, on the other hand, was at the scene and admits that he shot his girlfriend; he claims it was a mistake and that he shot what he thought was an intruder in self-defence and in defence of his girlfriend.

If Pistorius’s girlfriend was staying over for the night, would he have expected her to lock herself in the bathroom when using the toilet? If he had premeditated the murder of his girlfriend, would he, in a fit of panic and fear, lie to the first person to arrive on the scene that he thought she was an intruder? Can neighbours in a different housing estate hear and identify screams over 100m away? If those screams were ‘blood-curdling’ as claimed, would the neighbours just go back to sleep? Would they neglect to call the police? Can we believe the testimony of a bitter ex-girlfriend, who claims he was trigger-happy and often screamed at her? Would a reasonable person, (without legs and living in South Africa) have felt as vulnerable as Pistorius alleges he did? To what extent can the court rely on forensic evidence which has been tampered with by the police and investigating details?

Too early it is to answer any of these questions with certainty but these are a few scenarios where the glove may not fit comfortably for the prosecution. Clarity will only emerge once all the evidence has been led.

What is certain, however, is that Pistorius is innocent, until proven guilty. To succeed, the prosecution must collect and present enough compelling evidence to establish that Pistorius is guilty beyond reasonable doubt. The media and the public must separate the emotion surrounding the tragedy from the question of criminal liability.

If the evidence does not fit, the judge must acquit.

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On being a woman advocate in Harare: deep voices, romantic passes – and ugly shoes

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Here’s a piece I recently wrote for the Advocate magazine published by the General Council of the Bar of South Africa.

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Eleanor M. Fox, Walter J. Derenberg Professor of Trade Regulation at New York University, once said that women, people of colour and others historically denied a place on the upward track of the traditional hierarchies in the practice of law, have today, more than ever, the chance to succeed on merit. In January 2012, after a year of practice in the Prosecution Division of the International Criminal Court in The Hague, and another year pursuing a Master of Laws degree at the University of Cambridge, I decided to become an advocate at the Harare Bar. Inspired by several women silks I had encountered as a Pegasus Scholar at The Honourable Society of the Inner Temple in London, including Eleanor Grey QC and Alison Foster QC, I believed the courtroom was where my career was destined.

Particularly, I looked forward to litigating in Zimbabwe.

The last time I had done so continuously was in 2009, when, as an attorney, I defended commercial farmers who faced criminal prosecution for remaining on their farms.  Economically and politically, the situation in Zimbabwe had improved.  The renewed stability in the economy once again made the practice of law a worthwhile endeavour.

Against this background, I offer these musings upon being a woman at the Harare Bar.

At the outset, it must be highlighted that, whether one is a man or a woman, being an advocate is a tough job.  The expectations are high, the deadlines, brutal, the issues, complex and the hours, long. The additional domestic demands placed on women in African societies make being an advocate an unlikely option for the archetypal Zimbabwean woman lawyer.  The absence of any women advocates at the set I joined, Advocates’ Chambers, ought to have been the first sign that the system was not designed for the “non-male advocate.”

I wish I could have described the non-male advocate as “the lady advocate.”  However, doing so would conjure up the idea held by many female lawyers throughout the world that to be called a lady lawyer is patronising and has sexist undertones due to the association of the expected “ladylike” behaviour.

On that score, it became very clear to me in my early days at chambers that there was little room for “ladylike” behaviour in any classical sense. Amid sexual banter and crude jokes, I soon became “one of the boys.”  I joined in the laughter at teatime and often myself sounded like a construction worker. I was torn between, on the one hand, wanting to avoid being judged too weak or too fragile to last in the system and, on the other, abandoning my femininity. Therefore, as I strove to make my gender a non-issue in my interaction with fellow members of the Bar, paradoxically perhaps, I also became more bent upon asserting my femininity.  Purposely, I wore only skirt suits. My hair and nails were always a big deal.  My room in chambers was full of flowers and pretty scents.  One member of chambers remarked that my room was “girly.”  Soon, it became accepted that the non-male advocate was part of the fabric of the institution.

Yet, the newspapers often still refer to me as “he” when reporting upon cases I have argued.

When I take their calls, attorneys tend to mistake me for “Advocate Mahere’s secretary,” expecting as they do to hear another man on the other end of the line.

Generally, women judges tend to receive me differently from how they would receive a male counterpart.  It is, I find, a mix of veiled hostility and surprise – the irony! Equally, a silk I appeared against once remarked how he “has a problem with girls” in a conversation I have since put down to strategic pre-court sparring designed to take my eye off the ball. Some have opined that I get briefed because I am “a pretty face.”  This is made worse by the many romantic and even sexual advances and passes made by instructing practitioners and clients alike.

Sigh.

Suffice it to state that it may be easier for a fish to ride a bicycle than it is to achieve an appropriate balance between being firm and, at the same time, being polite in response to these obstacles without coming across as “angry.”

This applies particularly to the courtroom setting.  Experience has taught me that anger helps a man command a courtroom.  Obviously, a non-male advocate achieves the opposite effect.  While the former comes off as assertive, the latter is often remembered as emotionally erratic. An incrementally more intense hearing can do the woman advocate no favours unless she masters the art of controlling the pitch of her voice.  She may do well to ensure that her voice achieves the lower register, something the male advocate usually does not need to strive for. But the double bind is that, to fit the stereotypical image of an advocate means being argumentative and aggressive.  If a woman chooses to reject this image and to adopt a less combative form of engagement, she runs the risk of being labelled too feminine, leading litigants to doubt her fibre as a lawyer.

It is almost as though the non-male advocate cannot win: damned if she does, damned if she doesn’t.

Moreover, while my male colleagues are assumed to be serious and to be embarking upon a lifelong career, I am often asked when I will quit or take a break to start a family.  There is, therefore, a constant need to reflect that I am a committed and competent professional and to convince each judge and opponent that I mean business and that I am in the profession to stay.

Top-quality, hard work will usually achieve this – as will working longer and harder on tough briefs.

From the foregoing, it is probably little wonder that there is yet to be a female silk at the Bar in Zimbabwe. While about 50% of all law graduates are female, the attrition rate amongst women lawyers is extremely high.  The unfortunate further result is that few join the Bar. There has to be something wrong with the system if I am the only non-male advocate practising in Harare.  I look forward to the day when this statistic will change.

This will be a long time coming, however, because the sad truth is that the safest way to success as an advocate is the emulation of males, even to the extent of learning to speak lower and louder, wearing one’s hair short and donning a dark, conservative suit, with ugly shoes.

In defence of Justice Hungwe and the Rule of Law in Zimbabwe

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Election season is upon us once again. The last election year, 2008, will forever be etched in the memory of many as the most troubled year in Zimbabwe since independence from colonial rule was achieved in 1980. The election conducted in 2008 was bloody and violent, compounded of course by hyperinflation and the crippled state of the economy.  Today, food shortages are a thing of the past. Hyperinflation is no longer an issue thanks to dollarization. The Government of National Unity has been fraught with problems, but compared to the days when bread was a luxury, the situation has somewhat normalised. Most Zimbabweans would like to get on with their lives, put food on their tables, educate their children and ignore the politics. But this is becoming increasingly difficult to do. The events of the last couple of weeks are enough to remind one that all is not well. The rule of law is under renewed threat. In particular, the independence of the judiciary has been severely compromised and a clear message is being communicated to judges to tow the correct political line.

At its core, the independence of the judiciary dictates that judges should not be subject to improper influence from the other branches of government, particularly the executive. This is a basic requirement of the separation of powers doctrine which is central to the rule of law. Unless judges are allowed to perform their duties without fear or favour, the public will lose the confidence of the legal system. In turn, the internationally recognized right to protection of the law will be unduly compromised. It is against this background that the current onslaught against Justice Charles Hungwe, a judge of the High Court of Zimbabwe, should be understood.

It has been reported widely in the State media that Justice Hungwe has committed acts of misconduct. What it is immediately clear to any person who has a basic understanding of the law in Zimbabwe is that the allegations being mounted by Justice Hungwe’s self-proclaimed prosecutors are frivolous and vexatious.

The main charge that Justice Hungwe faces according to media reports is that he convened a heard an urgent chamber application brought on behalf of a legal practitioner, Beatrice Mtetwa, to seek her immediate release. It was argued on her behalf that she had been detained while conducting her lawful duties on behalf of the Office of the Prime Minister whose officials were being subjected to what she contended was an unlawful search. Section 17 of the current Constitution of Zimbabwe protects citizens from arbitrary search and entry. Quite rightly, therefore,  Ms Mtetwa demanded a search warrant. She was immediately arrested and charged with “obstructing the course of justice.” These facts show that the continued detention of Ms Mtetwa was unjustified. Rule 244 of the High Court Rules of Zimbabwe permits litigants to bring a matter on an urgent basis.

It is established under our law that degrees of urgency may vary. At the outer edge of the spectrum are matters which require such urgent determination that they can be heard outside ordinary court hours and in locations other than the High Court, depending upon the exigency of the circumstances. It is on this basis that the urgent chamber application was heard by Justice Hungwe late on the night Ms Mtetwa was arrested. In addition, section 23 of the Constitution enshrines the right to personal liberty – a right that cannot be lightly interfered with without good cause. Upon hearing the submissions of counsel, Justice Hungwe was persuaded that the continued detention of Ms Mtweta was unjustified and ordered her release. The matter was indeed heard ex parte, without notice to the State or police officers. Again, this measure is permissible under our law. Rule 242(1)(c) authorizes a judge to hear an urgent application ex parte if it can be shown that there is a risk of perverse conduct on the part of the persons who might otherwise be entitled to be served with the application. Such a risk was demonstrably evident in Ms Mtetwa’s case where the police had unlawfully detained her. There was a real risk and possibility that the police would delay the hearing of the application or otherwise frustrate efforts for her to be released. This risk was proven to be real when the police refused to comply with the court order upon being served with it, insisting instead that she be hauled before a criminal court.

The above summary of the law shows that Justice Hungwe’s discretion was properly exercised. However, to the extent that the State or representative of the Attorney-General’s Office was aggrieved by the decision, it was open to them to appeal against it on an urgent basis or anticipate the return date. The allegation that the judge might have misdirected himself is an opinion anyone is entitled to hold. However, a misdirection by a judge cannot ipso facto amount to misconduct. If the approach that is being advocated in persecution of Justice Hungwe were to be followed to its logical conclusion, every High Court matter in respect of which an appeal succeeded in the Supreme Court would be a proper case for misconduct.  The result would be absurd.

The same arguments apply to the allegation that the judge issued a search warrant which various elements of the Executive were not happy with. Of course, such elements were entitled to be aggrieved. They have under the Constitution a right to protection of the law which means that they can enforce whatever right they perceived to have been infringed. But they must do so procedurally: they can seek the review of the judge’s decision or appeal against it. An apparently baseless accusation has been made against the same judge, contending that he ‘improperly granted a Notice of Withdrawal’ in a property dispute. The allegation is without merit because it is not for a judge to withdraw a Notice of Withdrawal under the High Court Rules. A Notice of Withdrawal is a pleading. Pleadings can only be filed by litigants or their legal practitioners. Once a matter is withdrawn by a party, the judge is no longer seized with the matter. There is nothing for him to grant. Unless this is a case of bad reporting and a misapprehension of the legal issues involved, it is beyond doubt that this allegation is malicious.

The final word on this matter has to be that judges, being human, do make mistakes. Lawyers and litigants do not always agree on the correctness or propriety a particular legal outcome. However, if our response to perceived misdirections is to harass, defame and otherwise abuse judicial officers, judges will not have the mettle necessary for them to decide matters properly and fairly. It is equally undesirable for judges to be punished for deciding against the political establishment. To do so makes a mockery of the entire judicial system which Zimbabweans are required to have confidence in. It also places judicial officers at the mercy of the politics of the day and undermines the rule of law and general principles of consitutionalism. The latest media reports seem to indicate that Justice Hungwe will be hauled before a tribunal appointed by the President to investigate his “misbehaviour” in accordance with section 87 of the Constitution. If found guilty, the judge will be forced to resign. This will be a severe assault on the independence of the bench and a warning to legal practitioners and litigants that the judicial system has been compromised.

If the rule of law is to remain somewhat intact in this country, this course should be avoided at all costs. Accountability to the rule of law, in its most basic form aims at structuring and placing certain limits on governmental action. Time-tested constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently. We cannot afford to sacrifice these most fundamental values at the altar of political expediency.

The Charles Taylor verdict: A victory for karma, a loss for international criminal law?

I met Courtenay Griffiths QC in July 2009 when I was stationed at the Office of the Prosecutor of the International Criminal Court in The Hague. My office so happened to be adjacent to that of the Charles Taylor defence team. Although not being tried by the International Criminal Court, the trial of the former Liberian President and warlord was being hosted in The Hague as opposed to the usual seat of the Special Court for Sierra Leone in Freetown due to security concerns.

A perpetual debate Courtenay and I would have, which we continue to discuss to this day, is whether international criminal justice is a genuine pursuit to end impunity in respect of the most heinous crimes that shock the conscience of humanity – or whether it is an instrument in the hands of western states to execute justice ‘a la carte’ against the enemies of powerful states, particularly those in Africa. It is often asked why the only defendants before the International Criminal Court are African and why war crimes committed in Iraq, Syria, Venezuela and the Middle East are never the subject of international criminal law – the major exception of course being those charged with international crimes committed in the early nineties in the former Yugoslavia by the UN International Criminal Tribunal for the former Yugoslavia.

Those, like Courtenay, who are generally opposed to the motives underlying international criminal justice take the view that the International Criminal Court and other UN-assisted international criminal tribunals have become a tool that western liberal democracies impose on developing country leaders with whom they have fallen out of political favour – in other words, a backdoor by which powerful states target their political enemies. The statistics would suggest that this is an attractive position to adopt – 100 per cent of the cases at the International Criminal Court relate to conflicts in sub-Saharan Africa.

But, let’s take the case of Charles Taylor.

After training as a guerilla fighter in Libya, he led the National Patriotic Front of Liberia which intiated the First Liberian Civil War. He gained control of a large portion of the country and became one of the most prominent warlords in Africa. He was elected president of Liberia in 1997. Opposition to his regime grew, culminating in the outbreak of the Second Liberian Civil War. Over a thousand civilians were killed during the conflict and thousands more were displaced from their homes. It is almost undisputed that Taylor commanded militia that were responsible for the atrocities and horrific acts of violence committed in Liberia. For these atrocities, one can argue with relative ease, that he was directly responsible and ought to have been found accountable. It is on this basis that most people have little difficulty with the prospect of Taylor facing a custodial sentence in the United Kingdom – but are these the offences for which Taylor was charged in the proceedings conducted in The Hague?

The short answer is no.

The charges Taylor faced before the Special Court for Sierra Leone had nothing to do with his conduct in Liberia. Rather, the charges were based on the assistance he provided to the Revolutionary United Front (RUF) in their attempt to overthrow the Jospeh Momoh government. The resulting civil war lasted 11 years and left over 50,000 people dead. Crucially, Taylor never set foot in Sierra Leone. It is his participation in this conflict that resulted in his prosecution and conviction in The Hague.

Being an African and an international criminal lawyer – I am a staunch supporter of the international criminal justice project. However, international criminal law remains law and prosecutions of this nature need to be true to matters of principle. The difficulties that the prosecution faced in the Taylor trial were myriad:

1. The judgment rejects the overdrawn prosecution argument that Taylor and Forday Sankoh, the leader of the RUF “made common cause” in Libya to wage wars in West Africa.

2. The prosecution failed to prove beyond reasonable doubt that Sankoh took orders from Taylor or that Taylor participated in the planning of the invasion of Sierra Leone. In any event, the Special Court for Sierra Leone had no jurisdiction over the crime of aggression. The indictment period did not cover the origins of the war – the temporal jurisdiction of the court is from November 1996 to the end of the war in 2002.

3. The witnesses used by the prosecution, the majority of which adduced hearsay evidence, did not constitute the best evidence in respect of Taylor’s conduct. The person who could have most usefully testified that Sankoh took orders from Taylor would have been Sankoh himself but he died before the trial commenced. The court’s conclusion that the prosecution succeeded in proving that Taylor “aided and abetted” the crimes in Sierra Leone is controversial since Taylor had effectively eliminated key witnesses to that crime. It is alleged that Taylor caused the murder of Sam Bockarie, his key link to Sankoh and the RUF during the period of the indictment, in Liberia shortly after Bockarie was indicted. Johnny Paul Koroma, a notorious Sierra Leonean coup maker who also dealt intimately with Taylor, curiously disappeared. He was also allegedly murdered either in Liberia or Ivory Coast on Taylor’s orders after his indictment.

4. The prosecution’s reliance on the concept of joint criminal enterprise was ill-advised, given that the court had rejected the argument in successive judgments by the court. The prosecution argued that Taylor was in common purpose  with Sankoh to invade Sierra Leone and loot is diamond reserves, and that the RUF’s terror campaign was a direct result of this blood pact. Taylor’s Defence made no effort to deny Taylor’s support for the RUF, but it stated that “diamonds only financed the procurement of arms and ammunition” for the RUF between 1998 and 2001. The Defence contends that there was a “purely political motive” for Taylor’s support of the RUF war, which may be immoral but certainly not illegal in international law (since the law of aggression was not at issue).

Given these gaping holes in the case, should Charles Taylor have been convicted? This is obviously not an easy question to answer and the jury is still out on the matter.

Undoubtedly, few will be sorry to see Taylor locked up – if only for reasons of karmic retribution. He committed atrocities in Liberia and his case set an important precedent as far as ensuring heads of state are brought to account for war crimes and crimes against humanity. This is especially important in Africa where, too often, leaders are seen as being above the law and get away with murder – and much worse.

Having said that, to ensure that the legitimacy of international criminal law is not lost, we must remain cognisant of the danger of the political expediency factor and the degree to which international criminal law can be exploited for the benefit of the powerful. Some would go as far as to suggest that countries such as the US, China, and India who worry about the politicisation of the Office of the Prosecutor, and, by extension, the politicisation of the ICC are justified in so thinking. In some ways, the Taylor case lends credence to this view.

For the rest of us, however, the trial and conviction of Charles Taylor is an important step in the fight against impunity in Africa, particularly in respect of heads of state who often too large to fall within the grasp of domestic criminal law.