Statement from National Constitutional Assembly 348 H Chitepo Ave, Harare tel/fax 721146 PRESS STATEMENT Tuesday 9 February 1999 The events of the last few weeks have brought to the forefront the central issue of the erosion of the rule of law in Zimbabwe. The arrest and torture of various members of the media by the military has clearly violated, not only the constitutional provisions setting out the limits of the powers of the military in our society, but also various provisions of international law. Sadly in his Presidential address of the 6th of February 1999, President Mugabe implicitly attempted to justify the actions of the military, by arguing, unashamedly, that the reports of the media brought upon it the wrath of the military wing of the government. Through such arguments, the President has privileged the unlawful activities of one arm of the state, over the more general requirements of the rule of law. Unfortunately the present state of affairs is a clear indication of the increasingly captive state of the Presidency to the more militarist and commandist wing of his Government. This is the predictable outcome of, among other issues, two determining factors. Firstly the growing impoverishment of the majority of Zimbabweans over the last decade has undermined the legitimacy of this government , and confronted it with more widespread acts of resistance, in particularly though not exclusively in the urban areas. In the fact of such resistance, the state, curtailed both by its own policy in capacities and global constraints, has increasingly resorted to more coercive acts of containment. Secondly, the military intervention of the Zimbabwean Government in the Congo, has increased the influence of the army on domestic policy. The requirements of the state for secrecy of information on their Congo intervention, has led to the need for increased control of the media and civic groups opposed to the policy in that region. It is unfortunate that it has escaped the President's attention that military intervention in civil society today, could lead to military control of the Presidency tomorrow. In undermining the rule of law in Zimbabwe, the President and his government have elicited criticisms of not only the media and civic organisations but more fundamentally, from the judiciary, the third arm of the government. Faced with such a broad array of dissent, both the President and the government are now confronted by the broadest challenge to their legitimacy since 1980. It is within this context that the current constitutional crisis needs to be viewed. It is unfortunate and regrettable that in his address to the nation the President completely failed not only to address the bread and butter issues facing our people but also to address any of the concerns which had been expressed by the judges of both the Supreme Court and High Court in their "petition" to him. Instead, the President chose to dwell on issues irrelevant to those concerns. It is important to underline and underscore that the concerns of the judges here are not only legitimate and serious but also that they are the same concerns which had been repeatedly voiced by virtually the entirety of civil society over the events surrounding the arrest and torture of Mark Chavunduka and Ray Choto. For the avoidance of doubt the judges expressed their concern at the impression which had been created in the minds of the public that the courts were ineffective and that there were certain sections of the state which now appeared to be above the law. They particularised these concerns as: the alleged torture of the two journalists while in the hands of the military; the clearly unlawful conduct of the military in effecting the arrest and detention of civilians over whom it is common cause that they have no jurisdiction; the apparent failure of the police to discharge their constitutional and legal duties and obligations to protect civilians against unlawful arrest, detention and torture; the alleged handing over of civilians "suspects" to the military by the police; the "cat and mouse" game played by some agents of the state in avoiding service on them of orders of the High Court; the apparent failure or refusal of some organs of government to obey at least three orders of the High Court; and the silence of the responsible government ministers in condemning all of the above actions and thereby assuring the public that the state was wholly committed to the principles of the rule of law. All the above concerns are extremely important and fundamental to democratic governance and some of them go to the very heart of our freedoms and liberties as a people. For example, without a full and complete observance of the rule of law no people or nation can be free as all would be subject to the arbitrary momentary whims of those wielding state power. The assurance of our liberties and freedoms is predicated on the commitment of the state and all its agencies to be bound by the ordinary laws of the land and their obligation to obey those laws at all times and also to faithfully and always abide by the orders of the courts. A situation where some sections of the state are placed above the law or are exempt from obedience of the law or where the state at its discretion chooses which court orders to obey and which ones to defy is inimical both to the rule of law and to democratic governance and places all our freedoms and liberties in jeopardy. This is centrally what concerned the judges, in particular, in relation to the contempts and ridicule it brings to the whole judicial system. Secondly, the practice of torture is absolutely prohibited with no exceptions whatsoever permitted both under our national laws and under international law. Thus where "suspects" are handed over by the police to the military and thereafter severely tortured, it is a matter which should be of grave condemn to all and in particular to judges whose constitutional duty is to protect our human rights within the nation's constitution. It is thus apparent that the judges of this country were properly and legitimately concerned about the state of the rule of law and hence their request to the President of the country, as head of the Executive, to make a public statement reassuring the nation that his government was still fully committed to the rule of law. It is also clear that having regard to the circumstances, the situation required an unambiguous expression of such commitment from the President. Unfortunately the President chose to spurn the opportunity of giving the necessary assurances which the nation cried out for and in doing so has exacerbated the apparent constitutional crisis. It is equally saddening that the President also chose to mislead the nation by alleging that the judges have sought to "instruct" the Presidency. It is abundantly clear that the "petition" of the judges did not instruct nor purport to instruct the President. What it did, was request and "ask" of the President an assurance to the nation that his government was inter alia committed to the rule of law and did not condone torture and that those elements within the state who have been accused of employing it would be investigated and if found to have done so, properly dealt with in terms of the law. The NCA is also gravely concerned by the President's unfortunate insinuation that the black people of this country are unable to think and evaluate the problems facing their country without being put to it by either foreigners or the white community. We wish to state categorically that ironically this is precisely the thinking that dominated Rhodesian Front Politics towards nationalist opposition to UDI. There can be no doubt that the black people of this country have both the intellect and capacity to think for themselves. There is also no doubt that the white members of the nation of Zimbabwe have the same rights as the black members and therefore can and should enjoy unqualified freedom to express themselves on any issue affecting the nation without the risk of being labelled racists or second class citizens or saboteurs. We deplore the threat by the President of unspecified action against Zimbabweans excising their legitimate rights to express themselves and to hold their government accountable for its conduct of the business of running this country. We condemn the failure of the President to assure the nation that his government is fully committed to the rule of law. CONCLUSION By any standard of democratic governance, the Zimbabwe government is in a state of crisis. Plagued not only by serious structural economic problems but also by a constitutional crisis in the broadest sense. The government can now proceed to confront the issues either through an open process of consultation or it can continue on its present disastrous policy of confrontation and repression. We hope that the Government has the foresight to take the first option. Trudy Stevenson [EMAIL PROTECTED] http://users.harare.iafrica.com/~trudy -- Leftlink - Australia's Broad Left Mailing List As vilified, slandered and attacked by One Nation mailto:[EMAIL PROTECTED] http://www.alexia.net.au/~www/mhutton/index.html Sponsored by Melbourne's New International Bookshop Subscribe: mailto:[EMAIL PROTECTED]?Body=subscribe%20leftlink Unsubscribe: mailto:[EMAIL PROTECTED]?Body=unsubscribe%20leftlink
