Zim judiciary slips back to Gukurahundi years: Prof, Jonathan Moyo

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It is existentially draining and disempowering that the leader of Transform Zimbabwe @NgarivhumeJacob, has been shockingly convicted and sentenced for an effective three years in jail – for some tweets posted in July 2020 calling for a constitutionally protected peaceful demonstration – by Mrs Feresi Chakanyuka, a Harare Magistrate who by the oath of her office is sworn to “uphold and protect the Constitution” and to “administer justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and law”.

Ngarivhume’s quoted pinned-tweet and video posted on 8 July 2020 – which is still accessible on #Twitter – need no interpretation. Given sections 56, 58, 59, 60 and 61 of the 2013 Constitution, it beggars belief that any magistrate would be fooled by political prosecutors – some three months before a general election – into making a manifestly political decision to convict and impose a draconian sentence to knockout an electoral opponent of the sitting president, as a way of sending a chilling message to other presidential aspirants or voters. The conviction and sentence make a mockery of the judiciary and leave it in utter disrepute.

Truth be told, the judiciary’s shocking mishandling of Bill of Rights cases these days is eerily reminiscent of the gukurahundi years, when the Rhodesian State of Emergency retained between 1980 and 1990 was ruthlessly enforced. But there was an important difference then, now lost to the judiciary. While government used a decade of the retention of the Rhodesian State of Emergency for political purposes against targeted political enemies – especially Zapu and the population in Matabeleland and parts of the Midlands – the judiciary then stood firm as the protector of the Bill of Rights and defender of human rights and freedoms. Ironically, this was under a Lancaster Constitution whose Bill of Rights was in fact meant for the white minority and was entrenched only for 10 years precisely to give the white minority time to either take the gap to apartheid South Africa or the white Commonwealth countries, if not back to Britain itself.

The point here is that during the gukurahundi years – in which the order of the day was the Rhodesian State of Emergency whose effect was the obliteration of the Lancaster Bill of Rights – draconian convictions and sentences like the one imposed on Ngarivhume by Magistrate Feresi Chakanyuka were unheard of. It is a sociological truism that individuals lose their freedom when they join or belong to any group, because doing so necessarily requires them to give up some right or freedom in exchange for the pursuit of some common good. Because of this, threats to human rights and freedoms typically come from the groups to which individuals belong. The worst of such threats anywhere in the world come from the State in general and the government of the day in particular.

This is because the State monopolises the use of violence through the government of the day. Thus, every government is by definition a threat to human rights and freedoms. In constitutional democracies with an entrenched and justiciable Bill of Rights, the guarantor of human rights and freedoms is the judiciary, not the government of the day but the judiciary, failure of which it has to be the people themselves. In Zimbabwe today the judiciary has tragically abdicated its constitutional responsibility and duty to guarantee and protect human rights and freedoms; hence the tragedy now happening to the Jobs and Jacobs in the nation’s midst, which tragedy has exposed everyone’s constitutional rights and freedoms to jeopardy!