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.

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Margaret Thatcher: The Irony of Feminism

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Margaret Thatcher’s legacy is the subject of huge contention – this was not unexpected. Her tenure as Prime Minister of Great Britain polarised public opinion in equal measure. Some believe she resuscitated post-World War II Britain from its position as ‘the sick man of Europe’, bringing prosperity to it through her support of the free market ideology and neo-liberal policies. Her political philosophy and economic policies emphasised deregulation (particularly of the financial sector), flexible labour markets, the privatisation of state-owned companies and reducing the power and influence of trade unions. Others believe that she improperly advocated individualism at the expense of society’s needs as a whole, with obvious detriment to the poor. If one is left-wing and prefers a welfare-type, ‘free-milk for all children’ state, one will obviously exhibit disdain for the free-market ideology Margaret Thatcher so resolutely stood for. This debate is not new. In fact, it represents the perpetual Capitalism vs Communism debate – to which there is yet to be any proper conclusion. Thatcher’s contribution to the debate is self-evident, documented and does not beg repetition here.

What the world perhaps did not expect was to hear hate of the Iron Lady emanating from proponents of feminism. By feminism’s very definition, it seeks to promote political, economic and social equality between men and women. Margaret Thatcher proved this notion to be a viable one: She read chemistry at Somerville College, Oxford in the 1940s (then a huge achievement for a woman of her background) before becoming a barrister. She was elected Member of Parliament for Finchley in 1959. Edward Heath appointed her Secretary of State for Education and Science in his 1970 Government. In 1975 Thatcher defeated Heath in the Conservative Party leadership election to become Leader of the Opposition. She became the first woman to lead a major political party in the United Kingdom. She became Prime Minister after winning the 1979 General Election. Margaret Thatcher was the longest-serving British Prime Minister of the 20th century and is the only woman to have held the office. Her dramatic rise to power showed that women could   penetrate the glass ceiling and that they were as competent as their male counterparts.Feminists ought to have been Thatcher’s loudest cheerleader; and Thatcher ought to have been an icon for feminism.

Ironically, (pun unintended) this was not to be so.

Feminism’s main indictment against Thatcher rests on the allegation that, having achieved power, she did precious little to improve the lot of women either in politics or outside of it during her eleven years in Downing Street. Sophy Ridge notes that as prime minister Thatcher froze child benefit, criticised working mothers and only promoted one woman, Baroness Young, to her cabinet. When Thatcher banned free school milk for children in primary schools over the age of 7, earning her the nickname “Margaret Thatcher, Milk Snatcher,” she was the living opposite of a nurturing mother. Ridge quotes former Labour minister Patricia Hewitt, saying it is a “tragedy” that having broken through the “glass ceiling” in politics to become prime minister Thatcher then “did so much to undermine the position of women in society”. A trawl through the Thatcher autobiography sees no mention of any women at all apart from Young, her secretary, her daughter, Indira Gandhi and the wives or daughters of other statesmen. Edwina Currie, Virginia Bottomley, Gillian Shephard and Angela Rumbold are conspicuous by their absence. Her official biographer, Charles Moore, wrote in 2011 that she “benefited from the emancipation of women without showing the slightest interest in it.” It is further argued that Thatcher had such command over her Conservative Party that if she had chosen to do so she could have advanced large numbers of qualified women into public and political posts. She chose not to do so – this has been described as a missed opportunity.

This pointed criticism of Thatcher was arguably deserved by her. She once sniffed, “I owe nothing to women’s lib.” At another point she remarked, “The feminists hate me, don’t they? And I don’t blame them. For I hate feminism. It is poison.” One of the fundamental ideas of feminism is that most societies are full of male chauvinism and anti-women attitudes, views that demean and limit the power of women. And adherents to this belief contend that the only force that can overcome those attitudes is feminism. And here comes a woman who dismisses their arguments as “poison.”

It is abundantly clear, albeit incongruous, that the relationship between Margaret Thatcher and feminism is characterised by mutual disdain. This is unfortunate because the idea of Margaret Thatcher as a feminist is a perfectly good one on paper. It is a dilemma which is easy to resolve – and in typical Thatcher style, there is no middle ground! Given a choice between feminism and Thatcher’s approach, one must certainly pick the latter.

The reasons for this ought to be immediately clear:

Women must not be made to get ahead simply because they are women. The discourse needs to go further than that. Edwina Currie made the point when she stated that “I think [a feminist-type approach] led to Labour in particular wanting to make it easier for women to come up the system and they created all women shortlists and rubbish like that, and the net result of that was many women arrived in parliament but actually weren’t very good at doing the job.” Nothing can be gained from that. In fact, it is an affront to the capabilities of women to require quotas in order for them to succeed. This is the ‘poison’ to which Thatcher quite rightly refers. Thatcher’s way is to take individuals on their merits, not as they are associated in groups. One must not feel compelled to reverence simply because someone was the First Lady or the Only Lady.

Feminism may say what it likes of her but the mere fact that she was there — handbagging Michael Heseltine one moment, bringing down the Iron Curtain the next — was enough to imbue us all with the not-so-subliminal message that women really could do anything. Meryl Steep similarly pointed out that “[t]o have given women and girls around the world reason to supplant fantasies of being princesses with a different dream — the real-life option of leading their nation — was groundbreaking and admirable.” Thatcher made it possible for an entire generation to grow up assuming it was normal to have a woman as prime minister. And when asked what it was like to be a woman PM. “I have no idea, dear,” she would sneer, “as I have never experienced the alternative.” “I didn’t get here by being a strident female,” she once intoned. “I don’t like strident females.”

Feminists simply complain bitterly that it’s somebody else’s fault that they haven’t got to the top. Margaret Thatcher just figured out how to do it and took the opportunity to stick her neck out and get the job done. Women, no matter their political philosophy, must applaud her for so doing. To do otherwise would validate the theory that when a woman succeeds in breaking the glass ceiling, instead of congratulating her, other women are quick to pick up the broken glass and cut her with it. Women must aim to be the best they can be, competent in the jobs they perform and resolute in their quest to succeed.

It is ironic for feminism to oppose this.

Rest in Peace, Margaret Hilda Thatcher

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.

Zuma, whites and being African: Has our culture gone to the dogs?

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The American dream is often described as the upwardly mobile ideal of having a good home in suburbia with a white picket fence and a dog playing in the garden. The African dream, on the other hand, has evaded any precise description. The reason for this is that Africa is complex. The continent’s uniformity cannot be exaggerated. It is best defined as a fusion of different experiences and diverse peoples. Colonialism, for its own part, threw a spanner into the works of what was originally, authentic African culture.

It is against this background that Jacob Zuma’s remarks, to the effect that Africans are corrupting their culture by copying ‘white’ behaviour, must be considered.

Speaking at a traditional event in the province of Kwazulu-Natal in his first public appearance since being re-elected the president of the African National Congress a week ago, Jacob Zuma controversially asserted that having a pet dog is not African. He further opined that black South Africans who buy a dog, take it for walks and to the vet are “copying” white culture. Mr Zuma’s office attempted to defend the remarks on the grounds that the message of his speech ‘was the need to decolonise the African mind post-liberation’.

The flaws in the South African president’s reasoning ought to be immediately evident: Were dogs brought to Africa by the colonialists? Do black people need to learn from white people that dogs require feeding? And exercise? Or to go to the vet? More importantly, what is African culture? Is it language? Surely not – if you put a Zimbabwean, an Egyptian and a Kenyan in the same room, chances are they will not speak the same language, unless they resort to the colonial fallback, English. Is African culture to do with food? That cannot be: most Zimbabweans would consider a Cameroonian dish consisting of yams and ‘pepe’ tortuous to eat. Likewise, most East Africans would find Zimbabwean food, say sadza nenyama, extremely bland for its lack of their usual oriental melange of spices. One cannot seriously contend that it has to do with dressing…just strolling through Sandton or the Victoria and Alfred Waterfront reveals that the clothes typically sold in South Africa are anything but ‘African’ in any perceived cultural sense. There is no such thing as a homogenous African traditional dress. The same Africans that reject mini-skirts as not being ‘African’ flock to the traditional reed dance in Swaziland to gawk at scantily dressed, topless Swazi girls in the name of – you guessed it – culture! Is polygamy African – let’s not even get started on that one.

And now for the saddest part:

Inherent in Zuma’s comment is the view that white people are not African. And that African culture is completely inconsistent with anything remotely linked to colonialism. Of course, this offends common sense in view of the numerous vestiges of “white culture” that dominate African life, especially in South Africa – the German cars, the Italian suits, the Irish whiskey, Swiss watches and the English language.

And so, to reduce African culture to a discussion on dog ownership is irreverent; and to allege that black people ‘copy’ white culture is desperate. Our culture is so much bigger than that. The mere fact that there is no agreement amongst African people as to whether they like to own dogs or not demonstrates that this aspect of human life (as is the case with most other things people carelessly define as ‘culture’) is too subjective to form the proper basis for what defines African culture. Accordingly, to define culture merely on racial grounds is misplaced. Black Americans and white Americans share the same culture – they are American. The same can be said, to a large extent, about black British people and white British people. This should apply with the same force to being African. A black Zimbabwean may have more in common, from a cultural perspective, with a white Zimbabwean than with a black Nigerian. It’s not to do with kinky hair or straight hair, light skin or dark skin. It is about identity – that unique factor that unites people, and not what divides them.

And so no, you will not be more African if you kick your dog.

Zuma is definitely in the dog house for this one.

Is feminism a disease?

Feminists are often depicted as angry, hairy battle axes – the usual bra-burning mantra. Yet the relevance of feminism in the 21st century cannot be overstated. Feminism is about equality. At its core, feminism is a movement based on the belief that all people – no matter their gender, race, religion, sexual orientation are equal, and deserve to live their lives free from discrimination. One does not have to be one of my favourite authors, Julie Zeilinger, to understand this. I am surprised to find, therefore, that many people, African (read Zimbabwean) men in particular, perceive it to be a disease. How could people oppose a movement that simply wants to ensure women retain their self-respect and are free from abuse?

What made me think this?

A faux post-apocalypse now pervades Harare after the ‘excitement’ surrounding the beating up of Tinopona Katsande by her boyfriend somewhat died down. Initially, it was alleged that he did it because she had refused to assist him with housework. It later emerged that he was ‘punishing’ her for behaving as though she was not taken on a night out earlier that weekend. There is no basis upon which we can prefer one version of events over the other – but that is not the focus of this rant.

I digress further – one might be forgiven for taking the view that unless one is a pretty socialite in Harare, no attention will be paid to the ordinary woman’s experience with domestic violence. The recent example of Ms Katsande was an acute, if useful, reminder of the manner in which women are often treated by their husbands and partners in Zimbabwe. Photos of her swollen face and desecrated weave went viral on the internet. No doubt, the perpetrator of the violence ensured that her usual caramel skin was left black and blue. Indeed, this episode was sad, unfortunate, unforgivable – one can’t run out of negative terms to describe what happened to her. What I grapple with, however, is that Ms Katsande’s experience was mild and unusual in the Zimbabwean context. For example, on the 29th of September, at around 3am, a 33-year-old Harare man allegedly fatally assaulted his wife with a knobkerrie over suspicions of infidelity. Sebastian Satero of plot number 16 Danbury Farm in Marlborough accused his wife, Rennie Jakarasi of having an extra marital affair and a misunderstanding arose. She sustained severe injuries and died on the spot. In a bid to cover up the offence, Satero removed Jakarasi’s blood stained clothes and burnt them together with the knobkerrie. He then fled leaving Jakarasi’s body lying on the ground.

Not many people paid attention to the plight of this woman. It may be the case that Zimbabwean society has come to accept that ill-treatment of women by their male counterparts is acceptable, in the same way that “small houses” (read mistress/illicit second wife – take your pick) have become the norm, in fact, a nigh necessity for the typical Zimbabwean man.

Even on a global level, women make up 70 percent of the world’s 1.3 billion poor and own only one percent of all land in developing countries. One out of every three women worldwide has been beaten, coerced into sex or otherwise abused in her lifetime. An estimated 50 million girls “missing” in India due to female feticide and infanticide (a practice in which parents abort their female fetus or kill their female infant based on the sole fact that she is female in a culture that prefers males). And that’s just scratching the surface.

So the question then becomes, do we still need to fight for women’s rights? Or is feminism a dirty word whose significance belongs to a different era?

As observed by writers like Zeilinger, the impression that the need for feminism was buried right alongside Elizabeth Cady Stanton and Susan B. Anthony – the accepted creators of the original ‘girlmance’ – and that Gloria Steinem and her counterparts resolved any lingering issues in the ’70s, is simply not true. The examples of domestic violence alluded to above are clear evidence that sexism is alive and well, even if it may take a different form from issues like being denied voting rights, the absence of contractual capacity on the part of women and the existence of marital power.

I end where I perhaps should have begun – what is feminism?

“I myself have never been able to find out precisely what feminism is: I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat.” ~ Rebecca West

If Syria were Zimbabwe, would the armed conflict be over by now?

Are Africans geopolitical pawns that the world can use arbitrarily when it feels the need to purge its conscience and purport to protect humanity? Are Africans the only “savages” that need to be rescued? Are there no atrocities committed outside Africa that ought to attract the interest of the world?

Most fundamentally, if Syria were Zimbabwe, would the conflict be over by now?

International inaction over the Syrian crisis would suggest that all these questions may be answered in the affirmative.

If Syria were Zimbabwe, the conflict would have automatically assumed a different complexion – NATO would have enforced a no-fly zone. The Security Council would have sat immediately to authorise a coalition of the willing to adopt ‘all necessary measures’ to maintain international peace and security in the area, in addition to referring the matter to the International Criminal Court. The International Criminal Court for its part would be working round the clock to put together arrest warrants for alleged perpetrators of violations of international criminal law. It is more than likely that Bashar al-Assad would have been dead by now – US Special Forces, the usual story.

Of course, this is not to suggest that there shouldn’t be accountability for atrocities if they are committed in Zimbabwe, or elsewhere in Africa. They must. However, if international law principles are applied as selectively as they have been over the last decade, do we not run the risk that their legitimacy will be undermined?

To illustrate the point: During times of political unrest over the last ten years in Zimbabwe, the international community has reacted as though a Third World War was imminent. Some have (quite ridiculously) gone as far as to suggest military intervention to resolve the crisis in the country. Yet so far, there have been 15,000 casualties in Syria and we have not seen the usual hypertensive  excitement from the so-called protectors of humanity.  Irrespective of the geopolitical arguments that have been raised to support international inaction in Syria, the argument that Africa has become the test-tube the world uses to try out its ‘save the world’ notions and international law principles is becoming more and more irresistible.

Does international humanitarian law apply to armed conflicts or doesn’t it? Does international criminal law apply to all perpetrators of war crimes and crimes against humanity or doesn’t it? Do we have a Responsibility to Protect humanity from mass atrocities or don’t we?

The answers to these fundamental international law questions ought to be uniform, regardless of whether an armed conflict is taking place in Zimbabwe, Syria or anywhere else in the world. To do otherwise would lend credence to the school of thought that moves that international law is designed as a neo-colonial instrument applicable  to Africans alone.

Like other international lawyers across Africa, I sincerely hope that these all-important humanitarian principles are not mere tools used strategically by the stronger powers to enlighten the Continent many so wrongly perceive to be Dark.

Does the colour pink imprison women? The case of Arundel School

Arundel School was a giant pink bubble in which young girls were taught to be “prim and proper”. Deportment – a term most teenagers go through high school not knowing how to spell, let alone use – was the mark of a true Arundel girl. It symbolised a manner of personal conduct synonymous with Austenesque behaviour: ladylike, well-groomed and intelligent. Pupils were enjoined to cultivate a fierce work ethic and obey a long list of rules – “to prepare one for the real world”, it was suggested. Some of the rules made perfect sense: ‘wear your hat outdoors or else you will potentially expose yourself to too much sun which may lead to skin cancer’. Other rules – ‘thou shall not wear thine jersey in the car park because it doesn’t look good‘, not so much (bearing in mind that the school colours were a jarring and clumsy combination of dark brown and turquoise). Talking too much or too loud was frowned upon. To top it all off, all the school walls were painted pink.

It is no wonder, therefore, that the school was half-affectionately known as the “Pink Prison”- double entendre? Yes.

The use of pink as distinctive of girls can be dated back at least to 1868, in Louisa May Alcott’s Little Women when Laurie used a pink and a blue ribbon to distinguish girl and boy twins respectively. To date, many things pink are associated with women – girls’ toys, girls’ clothes, girls’ bathrooms, girls’ gyms, the list goes on. However, pink as a feminine color is a relatively modern phenomenon. Before the 20th century, it was a male color. It may change again. But right now, pink is female and has a weird effect. According to a study published in the Harvard Business Review, pink triggers a defensive response in most women, particularly when used to convey messages to women about causes which affect them such as breast cancer. And to be fair, nothing makes pink a feminine color except what society has been engineered to think. Jude Stewart calls pink “the most politicized color of our age.” Today, “when we think pink, we think Disney Princess, Barbie and Fifi the poodle.” Pink is pretty. And it is nice. Pink is the term I ascribe to the “good Arundel girl” – obedient, unquestioning, neat, tidy and hardworking. She feeds the stereotype that being sweet, delicate and soft spoken is the ‘ladylike’ thing to do. Pink is safe. Pink won’t rock the boat. Pink is nice.

Yet, it is in being so “nice” that most women imprison themselves. If we teach girls to be pink and propagate this Austenesque behaviour – and stop it at that – are we not teaching girls in a variety of ways that being nice, avoiding conflict, not upsetting others and not challenging the status quo are all part of being a likeable, desirable, successful girl – and one day woman?

The world is changing and the danger is that such young women will enter the real world and discover that, unless one has an inquiring mind, that constantly questions and challenges the status quo, and in addition, vocalizes one’s opinions (with tact and discretion), one cannot get ahead – be it at home, at work or in society at large. Research has found that women – including those who work in senior positions for some of the world’s leading firms – are held back from reaching the very highest levels at work because of the difficulties they find in striking the right tone of language during high pressure meetings, for example. Often this is due to the fact that women are raised to believe that to argue or assert one’s self is not proper.

It is beyond question that Arundel School has produced some of the finest female scholars in Zimbabwe over the last five to six decades – alumni of this fine institution are no strangers to Oxbridge and Ivy League universities and many have fared exceptionally well in various professional disciplines, music, sport and art. Many have become wonderful mothers.

However, we need to move away from the classical approach to bringing up young women. In order to succeed in the boardroom, Parliament or wherever a woman feels called to be, she must be able to speak out against the status quo when the situation calls for her to do so. She must not be held back by the belief that it is not proper to do so. Julie Steinberg writing for the Wall Street Journal contends that, despite their talent, education and hard work, many women simply aren’t chosen for roles that lead to greater success later. Women often don’t have the “intangible skills” needed to gain the attention of higher-ups at the company, says Elena Rand Kaspi, a former consultant to law firm White & Case.

In sum, we need to add a bit more of an edge to the Arundel virtues of grace and knowledge, perhaps fine tune them to the demands of the 21st century.

“Forget conventionalisms; forget what the world thinks of you stepping out of your place; think your best thoughts, speak your best words, work your best works, looking to your own conscience for approval.”

~Susan B. Anthony~

Choose happiness…

There is happiness when each moment is used in a worthwhile way. Happiness is such nourishment that it can transform a person from weak to powerful. It makes difficult things easy and heavy things light. To remain happy and share happiness with others is a great act of charity. Happiness eludes those who seek it – for happiness is a choice. No matter what happens, my happiness should not be lost.

Does Zuma’s Spear need protection? What is its main thrust? Should it stay up?

If you live in a country where to insult the President is a criminal offence, you cannot but stand in awe when you wake up one morning to images on the internet of Jacob Zuma, the President from across the pond, depicted in Lenin’s striking heroic pose with his genitals exposed. Humorous, shocking and offensive, the painting does precisely what its creator intended it to do – it provokes.

The painting by Brett Murray is entitled The Spear. This ‘work of art’ is a happy victim of the Streisand effect – it has been obscure since 2010 when Murray painted it but shot to stardom just a few days ago when the ANC’s public condemnation of the painting unwittingly brought widespread local, regional and international attention to it.

Sundry digs have been taken at the painting, from references to it hanging limply to questions about the piece’s main thrust. When analyzed carefully, however, the painting may actually be more than a trivial abuse of artistic licence. Curiously, there is no spear in the painting. A somewhat simplistic view might suggest that this is a phallic reference but a more convincing interpretation advanced by some critics is that the work’s title can be read as a knowing reach-back to the ANC’s armed wing during the apartheid era, Umkonto weSizwe, The Spear of the Nation. One could go further and suggest that the absence of a spear is an attempt to contend that the ANC as led by Zuma is no longer the spear of the nation. What might also come to mind is the famous illustration of Barack Obama in the Hope portrait, painted by Shepard Fairey in 2008 – is there any hope for Zuma’s South Africa or has his presidency been overshadowed by his ill-conceived domestic policy and sexual indiscretions in his personal life? Most noticeably, the painting draws from historical images of the late Soviet ruler, Vladimir Lenin – an apparent reference by Murray to Zuma’s socialism-in-miniature policies.

Trvial? Distasteful? A crude stereotype of African male sexuality? Culturally chauvinistic?

The painting may be all or none of these things yet one thing is certain: it calls for African men to carry out some serious introspection about their sexuality and the manner in which they treat women. While polygamy is acceptable in various African cultures, it is not a licence for men to treat women as they please. Zuma has treated women as disposable and replaceable. He has four wives, two exes and 22 children by ten different women. Zuma was also charged in 2005 with raping a struggle comrade’s daughter, but was later acquitted. He is hardly a role-model for young African men in a country and continent where HIV and AIDS are endemic. Zuma should not cry foul when society, whether through art, satire or in general conversation, point this out.

“As usual, the spear had no protection”, one satirical commentator jabbed.

What requires the most protection, is the right of citizens to express themselves freely, through art or otherwise,  in criticism of conduct they find demeaning or unacceptable and policies they feel should be changed.

If for this reason alone, The Spear should stay up.

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.