11/04/2006
George Bizos

If yesterday I fought you as an enemy, today you have become a friend and an ally with the same national interest, loyalty, rights and duties as myself. The wrongs of the past must now stand forgiven and forgotten. If we ever look to the past, let us do so for the lesson the past has taught us, namely that oppression and racism are inequalities that must never find scope in our political and social system. It could never be a correct justification that because the whites oppressed us yesterday when they had power, the blacks must oppress them today because they have power. An evil remains an evil, whether practiced by white against black or black against white.

The reason for the rule requiring two witnesses in order to prove treason is plain enough. As Sir William Blackstone explained it is to

secure the subject from being sacrificed to fictitious conspiracies which have been the engines of profligate and crafty politicians in all ages.

Profligate has a number of meanings but surely shamelessly vicious would be the most apposite to describe the conduct of President Robert Mugabe of Zimbabwe along with his government and security services in relation to charges brought against the leader of the opposition in that country, Morgan Tsvangirai and others.  Why contrary to his words did he become a profligate and crafty politician.

By the end of the second decade of his rule, the President was no longer universally regarded as an angel. Serious allegations had emerged against him concerning violent suppression of the Matabele people, thousands of whom lost their lives in the early 1980s. Corruption was rampant and the economy in decline. In September 1999 the opposition forces came together to form the MDC and Tsvangirai was elected as its president. The MDC announced that it would contest the parliamentary elections called for 2000.

To help ensure he would stay in power, Mugabe had established a constitutional commission, answerable to him alone. It was to draft constitutional amendments, one of which would allow Mugabe to serve two further terms of office as President. Thereafter the terms of other presidents would be limited to two terms. To sweeten this pill another amendment was proposed that would allow land to be expropriated with neither due process nor compensation. A referendum was to be held before the election of 2000 to test popular response to these planned constitutional changes. Mugabe was certain that no loyal Zimbabwean would reject his proposals.

But the President misread the mood of the people of Zimbabwe and underestimated the efficiency of the MDC under Tsvangirai’s leadership. He lost the referendum. MDC supporters who had gained a comfortable majority in the referendum now believed that they could win the parliamentary elections to be held nine months later in June 2000.

Mugabe was no longer Prime Minister but Executive President. His Zanu-PF Party had won the 1990 and 1995 elections with overwhelming majorities, but the setback in the referendum was considerable and the MPs and high-ranking supporters of his party were afraid of worse to come. They began to express the fear that if the MDC maintained the level of support it had won in the referendum most of the Zanu-PF MPs would lose their seats. To avoid this prospect some Zanu-PF leaders quietly proposed that Mugabe should resign at the forthcoming party congress and that another leader should take over. This Mugabe was not prepared to do. Although he said that he accepted the result of the referendum Mugabe now embarked on a campaign that indicated this was far from the truth.

He began a strategy of demonising white Zimbabwean farmers and the MDC along with them. The upstart political party would lead Zimbabwe back to its colonial past, he said. Mugabe worked to form an alliance with the disaffected veterans of the liberation movement, particularly those who had been excluded from benefits and perks after independence. One method he used to win over these ex-soldiers was to pay them with money provided by the IMF and the World Bank, something that the lending organisations, not surprisingly, found quite unacceptable. Then the veterans were told to seize and occupy white owned farms.

For their part, the police had instructions to acquiesce; they should not accept any complaints nor protect the white farmers. When orders of court were obtained against the leaders of these lawless groups or against the Commissioner of Police for standing by and not taking any action, these court orders were simply ignored.

Reports of violence and intimidation grew. Of particular interest to judges and lawyers throughout the world were accounts of attacks on Chief Justice Anthony Gubbay and other judges of the Supreme and High Courts. These attacks came from the Minister of Justice, the Minister of Land and Agriculture, the Minister of Information and one Joseph Chinotimba, the leader of a group that invaded the Supreme Court and threatened that if Chief Justice Gubbay did not vacate his office then the war veterans would declare war on him.

Our profession has not been indifferent to the problems in the neighbouring countries.  Some of us appear in their courts.  Some of our leading members and distinguished retired judges have acted as judges.  Our countries, are heirs to the same common law, there are many parallels in our history. We are members of regional political, economic and cultural bodies.

As the Sir Sidney and Lady Kentridge Award is for Human Rights in Southern Africa and the focus in recent years has been particularly on Swaziland and Zimbabwe, whose people have been deprived of most human rights, we should look at events in those countries in the African context:

In February 2001 fifty-three Heads of State in Africa subscribed to the Constitutive Act of the African Union in Kartum.  The preamble records that they are:

DETERMINED to take up the multifaceted challenges that confront our continent and peoples in the light of the social, economic and political changes taking place in the world;

DETERMINED to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law; and

FURTHER DETERMINED to take all necessary measures to strengthen our common institutions and provide them with the necessary powers and resources to enable them [discharge their respective mandates effectively]

In article three we read:

Evidently, human rights culture has moved up on Africa’s agenda.  The establishment of the African Court on Human and People’s Rights and the ratification of the protocol by many of the member states has been welcomed.  Judges are being nominated for appointment. Our Judge President Ngoepe has been nominated to the Court.  Although it is even more likely to suffer the difficulties experienced by other International Courts and is likely to be under funded, it is nevertheless a vast improvement on the African Commission, which hardly made any contribution to the promotion of human rights.  Access to the Court is not given to individuals nor to established human rights groups within the country. Remedies must be exhausted before National Courts.  Halidou Ouédraogo of the Union Interafricaine Des d’ Droits de Ll’Homme has said

Every country must make a public declaration that NGO’s, civil society and ordinary people can take the country to court in cases of serious human rights violation.

Article 26 of the African Charter on Human and Peoples Rights provides:

State parties to the present charter shall have the duty to guarantee the independence of the courts and shall allow the establishment and improvement of appropriate national institutions and trust it with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

And yet, reports of the United Nations and its agencies, the International Bar Association, the European Union, Amnesty International, Human Rights Watch, religious leaders, non-governmental organisations, journalists and commentators have produced cogent evidence that a few of the signatories must have crossed their fingers when they subscribed to the noble ideals in the preamble and the Bill of Rights.

Swaziland has effectively been without a constitution since the 16th April 1973 when King Sobhuza nullified the constitution, which was brought into force on 6th September 1968 because

It permitted the importation into our country of highly undesirable political practices alien and incompatible with the way of life in our society.

The country has been ruled by an oligarchy of the king’s uncles and princes who enjoy prerogatives and privileges and are not accountable to anyone.  Political parties are banned, trade unionists are being harassed, court orders were ignored as a result of which the judges of the Court of Appeal resigned more than two years ago. No one worthy of the name volunteered to take their place. The King recently appointed a new Prime Minister assured the erstwhile judges that their orders would be complied with, that the rule of law would be restored and there will not be interference with any member of the judiciary.  The judges have agreed to go back. Let us hope that the lesson that no society can function without respect for the rule of law and an independent judiciary may be learned by all others in our region.

Swaziland has failed to investigate and prosecute those responsible for torture and abusive police behaviour.  It denies the rights of freedom of association and peaceful assembly to those who oppose its policies.  It undermines the roll of the courts to protect the rights of women and girls against forced marriages.  It fails to protect women and girls against rape and other forms of sexual violence.  It evicts without due process its political opponents.  Access to justice is denied by those in power.  There is no press freedom.

The King and his entourage attempted to justify their denial of fundamental human rights on the ground that the very instruments to which they have subscribed do not accord with the traditional values and culture of the Swazi nation which they want to remain a kingdom.  They profess that the majority of the people in Swaziland believe that monarchy and democracy are incompatible without giving an opportunity to those who hold a contrary view to express it and freely campaign for its adoption.  They are not allowed to:

point out that monarchies have flourished and enjoyed greater loyalty when the King or Queen agreed to reign and under their guidance allowed democratically elected representatives to govern in their name;

draw attention that those Kings and Queens that resisted change where deposed;

to draw comparisons to countries in which constitutional monarchs in the United Kingdom, the Netherlands, Belgium and Spain are good examples to be followed;

say that it is not only in Europe that constitutional monarchies are to be found, they are equally successful in Japan, Nepal and Thailand;

remind its citizens that the monarchy in France, Russia, Italy, Greece and other European countries come to a sorry end because they failed to convert themselves to constitutional monarchies;

to hear that the same happened in a number of countries in the Middle East, Egypt and Ethiopia.

Significantly of the 53 Heads of State presently at the adoption of the Constitutive Act of the African Union in February 2001 were represented by the Presidents as a Heads of State.

Would those who may support the present system be of the same view if they were allowed to hear of the advantage that the wrath of the people when mistakes are made is directed against the Prime Minster and the Government instead of the Sovereign? That the monarch is the head of state to both those in government and opposition who remain loyal to the throne.

Above all they ignore the reaffirmation in the African Charter of Human and People’s Rights:

to promote international co-operation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights.

Yes, it also provides that consideration should be taken of

The virtues of the historical tradition and the values of African civilization which should inspire and characterise their reflection on the concept of human and peoples rights.

There are apparently ignorant of the view of Acting Chief Justice Pius Langa and Justice Yvonne Mokgoro that the African values encompassed within the word Ubuntu are substantially similar to those declared in South Africa’s Bill of Rights not materially different to the Universal Declaration of Human Rights, the Canadian Charter, the Declarations and Protocols of the European Union and those enunciated by philosophers in ancient and more recent times.

By way of contrast Nelson Mandela apologia from the dock in 1964 when he was on trial for his life said:

‘During my lifetime I have dedicated myself to
this struggle of the African people.  I have fought
against white domination, and I have fought
against black domination.  I have cherished the
ideal of a democratic and free society in which
all persons live together in harmony with equally
opportunities. It is an ideal which I hope to live for
and achieve. But if needs be, it is an ideal for
which I am prepared to die.’

The speech was most effective of Mandela’s whole political career.  I identified him clearly as the leader not just of the ANC, but of the multi-racial opposition to apartheid.  The anti-colonial clichés of his earlier speeches had given way to a much more thoughtful and personal analysis.  His words reverberated round the world, providing a manifesto for anti-apartheid campaigners everywhere.