HARARE – In the wake of the Supreme Court throwing out a High Court order barring the holding of interviews to replace outgoing Chief Justice (CJ) Godfrey Chidyausiku and lawmakers starting to conduct public hearings on Friday on a proposed Constitution of Zimbabwe Amendment (No. 1) Bill that allows President Robert Mugabe to solely appoint senior judiciary officials, our Deputy Chief Writer Tendai Kamhungira spoke to prominent human rights lawyer Beatrice Mtetwa — who was part of the court process — to discuss this and other issues.
Q: What motivated you to take part in the Judicial Service Commission (JSC) appeal against the barring of holding of public interviews to replace outgoing CJ Godfrey Chidyausiku?
A: I feel very strongly that if a Constitution says things must be done in a certain way, we must follow that procedure.
Once we say that constitutional provisions can be amended on the mere say-so of an Executive member and we have a court suspending a constitutional provision which is being carried out lawfully, it virtually means we have no Constitution because what will to stop the very same people from doing the same for every other provision in the Constitution.
We will soon, in a couple of years, begin presidential term limits. What would stop the very same politicians from getting Zibani (Romeo) to go to court to say oh, we love this president, so the term limits should now be suspended so that he can continue.
There are so many other provisions that would really be suspended at a whim if we allow this kind of process to be adopted.
We would have thrown out everything out of the window and we wouldn’t be able to operate as lawyers, because as I said in my papers, the Constitution is what a Bible is to a Christian pastor and you cannot allow pages in that Bible to be reaped off on a whim.
Q: The government has been very slow in aligning subsidiary laws with the Constitution, what do you make of this sluggish approach?
A: That non-alignment is deliberate and I actually believe very strongly that the attempt at tinkering with the Constitution is also part and parcel of that non-alignment.
So I think the non-alignment is a deliberate ploy to buy time and once we allow the Constitution to be amended at a whim, we are not going to see any alignment because the constitutional provisions that need to be aligned with new laws would have been suspended through court orders or other processes, so it is a very worrying process, particularly as we go towards elections.
Q: What do you think should be done to ensure that the laws are aligned to the Constitution?
A: Obviously, that is a legislative function and I don’t think civil society has done enough to push for the alignment of those laws, because it is obvious that the politicians are not very keen to have the laws aligned because they benefit from the non-alignment. I think as a population, we ought to be doing more to demand the alignment and we call on our MPs to do everything possible to have the alignment done as soon as possible.
Q: What is your assessment of the state of the rule of law?
A: It has improved considerably in the last couple of years.
Fifteen years ago we were at a place that wasn’t particularly good but we are seeing gains as we move forward, particularly with regards to provisions in the Constitution, which is why some of us are extremely concerned by the haste with which members of the Executive were starting to tinker with the Constitution.
With the new appointment procedures of judges, we believe that this was also meant to enhance rule of law issues, because if judges are picked up transparently from a pool of lawyers, they are unlikely to be beholden to the appointing authority because they would not have been chosen through some secret non-transparent way and if a person has gone through a public interview, my view is that they are more likely to be independent and that would enhance the rule of law and improve the country’s ranking on the rule of law index.
Q: Some of the cases that you’re handling involve the powerful First Family. Are you not afraid?
A: I really don’t care very much about the political affiliation or the presumed power of those who might be involved in the cases. So, I never really look at it from the perspective that oh this might be dangerous terrain because the Constitution says there is equality of all before the law, although of course in reality we know that is not so.
You see, the very same case we are referring to (involving First Lady Grace Mugabe and Lebanese national Jamal Joseph Hamed), although we got an order, the Sheriff is sitting back doing virtually nothing to enforce it, despite us having done everything possible to have it enforced.
But if ‘Mr Joe Block’ next door has the same order, it would have been carried out within days of the Sheriff being asked to carry out his functions.
Firstly, I don’t know what will happen but secondly, I don’t think lawyers should look at the identity of the litigants and be motivated not to act against the powerful.
The powerful are the ones who wield a lot of power and it is absolutely crucial as lawyers that we hold them to account.
No matter how powerful you are, we should make it very clear to you that actually, the law is more powerful than you and that the little person in the street can only be asked to comply with the law because the powerful are also complying with the law.
Q: As a lawyer of more than 30 years, have you ever faced any limitations in your line of duty?
A: I know that recently when we represented the war veterans, there was an outcry from the colleagues saying that, oh vana (the likes of) Mtetwa have been bought by Zanu PF etcetera.
We don’t do cases on the basis of people’s political affiliation and I have never really asked a client his or her political affiliation…because that has nothing to do with me. The issue really is whether or not the person’s right has been violated.
There are also other limitations. I have found that a lot of persons particularly in the corporate sector discriminate against people like myself because they think oh if you give Mtetwa work it will look like you are anti-government and you get a lot of CEOs saying no, no, no we can never give you work because you are seen as anti-government, we would get into trouble.
Even just ordinary persons view me as anti-government and therefore if you use my services, it’s like you are aligning yourself with me.
Q: Are you politically-aligned to any political party and is it true that you are anti-government?
A: Actually, all I am is anti-impunity. I really don’t care about people’s political affiliation. I don’t care who is in power.
I just care that they do the right thing when they are in power.
I don’t know whether I can say I am anti-government but I know that I have always been anti-establishment regardless of who is in power, right from when I was young.
I can honestly say that I have always been anti-establishment, whatever the establishment is.
Q: You have once been arrested, do you hold any grudge against the government?
A: Whatever has happened to me, I have looked at it as a growing experience. When I was locked up at Chikurubi (Maximum Prison) in 2013, it was a great experience in that I now know what it is like to be in jail.
I know most of the women that are there are ordinary women. I got an opportunity to do a bit of work while I was there.
So, I managed to get quite a number of women out when I got released. And it is an experience that I am really grateful for because it gave me a perspective that I would have never known from just visiting people in Chikurubi.
Q: How were the conditions in prison?
A: The cell I was in had 18 women. It’s a very small place so the overcrowding is incredible.
We were sleeping back-to-back but then because it’s a women’s prison and we cleaned in rotation, it was very clean and the biggest problem was that there is no toilet in that particular cell.
So we all had little containers where we did our business in the night and it’s not particularly pleasant if someone has a running tummy…so by the time they opened the doors in the morning, the windows will be steaming and the smell will be something else and of course when you are sleeping and hear a woman doing her business in the same room that’s not pleasant.
I was treated exceptionally well by the prison authorities.