Zimpapers Logo

Elliot Ziwira-Senior Writer

 . . . Ministry of Justice, Legal and Parliamentary Affairs

 . . . Milestones in the Second Republic

Introduction

In colonial Rhodesia, the law was the law, whether the African was in the know or not. It was the law; as simple as that.

Without the means to defend himself, nor the clout of race to hide behind, the African saw himself spiked on the guillotine of justice, or pertinently injustice. Such was the nature of settler laws; such also was the two-faced nature of colonial justice! There was justice for whites and “justice” for blacks.

Independence in April 1980, therefore, brought more than legality to the people of Zimbabwe, but social justice as well. It is this legacy where parliamentarism, in which the voice of one is the voice of all, that the Second Republic, led by President Mnangagwa, has been building on since 2018 through the Ministry of Justice, Legal and Parliamentary Affairs for the common good of all Zimbabweans.

Indeed, the law ought to be just: to the white man and to the black man alike, for violation of principles of justice to all men, regardless of racial clout or lack thereof, defeats the spirit of what constitutes an illegality or a legality.

With either man hitched to his own version of truth, as was the case in Rhodesia, the law books favoured the white man and not fact, wherein the concept of proof beyond reasonable doubt held no water.

With neither knowledge of the law (put down by others through misrepresentation), nor anyone to defend him, the scales of justice always tilted in the black man’s disfavour.   

In 1980, Zimbabwe became a member of the community of nations that value parliamentary systems of government to improve the day-to-day lives of citizens. If parliaments are strong they become the bedrock of democracy in global politics. Parliamentarians are the voice of their constituents, whose expectations and aspirations they carry and project in the august House, thus, they represent the people.

The Rhodesian parliamentary system was skewed in favour of whites, who by virtue of their race, were automatic voters with blacks having to endure stringent regulations to have voting rights. 

As one of their oversight roles, parliamentarians pass laws, which are reflective of the cultural, historical, religious and political issues prevailing in any particular country. The laws passed in Rhodesia, therefore, reflected the will, religious and cultural norms of white Rhodesians.

Since the law reflects on justice, in its many facets, due care should be taken in the enactment of laws, hence, parliamentarians are crucial, as they shed light on aspects of what constitutes legality and illegality from a well-informed point of view.

Because parliamentarism is synonymous with justice and legality, a nation is as good as its Legislature. There is a need, thus, to have a strong non-polarised parliament where the voice of the people carries the day, as parliamentarians soberly, selflessly and articulately debate on their constituents’ behalf.

In view of the foregoing, the Ministry of Justice, Legal and Parliamentary Affairs is crucial in the decolonisation of the Legislature, the Judiciary and legal systems in Zimbabwe.

For over four decades now, particularly in the last four years, the Ministry has been aptly doing just that; decolonising Zimbabweans by unshackling them from repressive and segregatory colonial laws.

At the helm of the Ministry of Justice, Legal and Parliamentary Affairs is Honourable Ziyambi Ziyambi, with Mrs Virginia Mabiza as the Permanent Secretary.

 

The Ministry’s vision is to achieve accessible world class justice for all by 2030. Its mission is to uphold, develop and provide accessible, efficient and effective justice delivery.

The core functions of the Ministry are to promote sound legal services, incarcerate and rehabilitate offenders, revise, reform and review the laws of Zimbabwe, undertake legal research and formulate policies, register and protect proprietary rights in corporeal and incorporeal property. Also, it is responsible for the  registration and regulation of companies and other business entities, promotion and upholding of the Constitution and coordination of Parliamentary business. It is the leading public institute on justice, human rights, legal and parliamentary affairs in Zimbabwe.

A peek into the colonial Judiciary, legislative system

Between 1923 and 1970, Rhodesia changed its constitution four times; in 1923, 1961, 1965 and 1969, all in a bid to consolidate the settlers’ hold on power.

The law in Rhodesia was “made for one thing alone, for the exploitation of those who (didn’t) understand it” (Bertolt Brecht, 1898-1956 in “The Threepenny Opera”).

The laws established by the British South Africa Company (BSAC) in 1890 were drafted in terms of items 10 and 22 of its Charter with the colonists being subject to the processes of their own judicial system.

The Industrial Conciliation Act of 1934 barred Africans from jobs exclusively reserved for whites, and excluded them from industrial agreements negotiated under it. Wage negotiations and skilled employment were preserved for whites.

African customs were misrepresented and bastardised through the so-called “Customary” Law as provided for in the Order in Council of 1898. Colonists and missionaries were equivocally against lobola (roora), which they considered to be a savage practice that needed to be stopped (Schmidt, 1990).

The Native Passes Law of 1937 required blacks to register at the Native Office upon entry into urban areas. To obtain the passes, they had to be guaranteed by their white employers, and without the passes they could not live in towns or cities. Such places were for white Rhodesians.

Another discriminatory law was the Land Apportionment Act of 1931 (passed in the Rhodesian parliament in 1930). The Act, amended 60 times, along with the Native Land Husbandry Act of 1951, separated land between black and white ownership, with whites getting the richer half despite their being in the minority.

And, about 700 000 black families were driven into rocky and arid reserves. Moreover, the Native Land Husbandry Act forced blacks to destock, thus reducing their treasured possessions—cattle.

In 1963, the population of Rhodesia was estimated to be 4 013 000, of this 3 789 200 were non-white, but no African had been elected to the Legislature until 1962.

There was no specific law barring African representation, but stringent educational qualifications and income levels required for one to be considered did the trick. To see to it that Africans were robbed of their voting rights, amendments were made to the constitution in 1914, 1951 and 1957 to raise the requirements for voting.

By 1958, only 1 000 black people could vote out of an electorate of 65 000 (Prison Conditions in Rhodesia: A factual Report compiled by Amnesty International, August 1966).

Although requisite qualifications were lowered through the 1961 constitution, the report maintained, only 15 Africans were elected to the Legislature. Of the 103 032 enfranchised voters only 15 106 were Africans.

Another challenge was that the official African opposition party, which sat in the Assembly, United People’s Party, was considered suspect as its policies were moderate, and running against the grain of nationalism embodied in the banned parties; the People’s Caretaker Council, which succeeded the Zimbabwe African People’s Union (ZAPU) led by Joshua Nkomo, and the Zimbabwe African National Union (ZANU) then led by Reverend Ndabaningi Sithole.  Both parties shared the same political objectives of majority rule based on universal suffrage.

The Minister of Justice, Law and Order (1964-1976), Desmond Lardner-Burke, presided over a repressive system that reduced black people to second class citizens in their own country.

It is also worth noting how the ministry was reduced to only two terms—Law and Order, with justice not being a factor at all. The Rhodesian system, therefore, was not a just one, nor was it meant to serve the interests of black people. It was premised on oppressive, supremacist and brutal tenets, all abridged to upholding the settler’s view of legality and what constitutes order.

Lardner-Burke was not a just man in the eyes of Africans. He was simply a white man; perpetuating white Rhodesian interests.

Legislation such as the Emergency Powers Act, the Unlawful Organisations Act and the Law and Order (Maintenance) Act, empowered the Governor to declare a state of emergency at his whim, ban any organisation he deemed to be a danger to public safety and limit African nationalist political activities.

Because it was easy to breach any of the litany of laws forever coming out of the colonial legislative machinery, more and more Africans found themselves behind bars. The majority of Africans charged with offences under security legislation enjoyed no legal defence, as they could not afford lawyers (mostly whites).

In most cases lawyers would turn down political cases. Scores of Africans were summarily executed, others jailed and detained, and others still, were maimed and killed for expressing divergent views on the politics of being black.

The Judiciary was a preserve for whites necessitated by a bottlenecked system of education that limited blacks’ access to law school. So inflexible and deliberate was the system that Herbert Wiltshire Pfumaindini Chitepo became the first, and only black advocate of the High Court of Rhodesia in 1954 when he was admitted to the bar on April 30 of the same year. He was also the first Zimbabwean lawyer to be admitted as a barrister in England; and the first Solicitor General of independent Tanzania.

Such a brilliant mind, but he had to go to South Africa for his matriculation and law studies. Such was the Rhodesian discriminatory scheme of justice that in 1981 there was only one black High Court judge on a panel of eight.

There were 69 magistrates in Zimbabwe in 1981, only 12 of whom black; nine appointed after Independence in 1980. So, the country had only three black magistrates in 1979.

Revamping the colonial setup

When the people of Zimbabwe got majority rule in 1980, not only did they enjoy their right to vote representatives of their choice into Parliament, but they got a chance to participate in the shaping of their nation’s destiny through a shared vision.

At Independence, Zimbabwe adopted the Lancaster House negotiated Constitution of 1979, and had a 100-member House of Assembly. The Constitution, though noble in some aspects, had limitations of its own in relation to the aspirations of Zimbabweans as enshrined in the values of the liberation struggle.

On the Constitution, Raftopoulos and Mlambo (2009:xxviii), observe that there were “a series of compromises over minority rights, in particular on the future of land ownership.” 

The issue of the land remained thorny in the 1980s, with resettlement taking a slow pace, owing to the willing-seller-willing buyer notion embodied in the Constitution.

 The Land Acquisition Act of 1992, following the lapse of the 10-year moratorium agreed at Lancashire House, was a major score at the level of legality and social justice as it righted land ownership imbalances created by the 1931 Land Appropriation Act.

It may be imperative to separate social justice and legality at this stage. Social justice refers to fairness in terms of the distribution of wealth, opportunities, and privileges within a society; and legality pertains to the law or lawfulness.

The issue of rights is as universal as the land is finite, and history is alive to the meaning of an illegality and what constitutes it, yet critics of land reform have for long been imbued with the legality or illegality of the post-2000 Fast Track Land Reform Programme, and the manner in which it was done, particularly on issues of property and human rights.

Independent Zimbabwe’s first Justice and Constitutional Affairs Minister, Simbi Mubako, who was the leader of the Patriotic Front legal team at the Lancaster House, raised issue with yet another clause in the Constitution negotiated at the Conference. It was the issue of 20 seats reserved for whites. 

Arguing for the need for an overhaul of the legal system in Zimbabwe, he said: “There is no reasonable explanation why there should be these 20 entrenched seats. Our philosophy is that there should be no discrimination between races, and seats should be determined on the basis of merit alone.” 

He added: “From our point of view, there is no reason why white people cannot be represented by blacks and vice versa” (The Herald 13 May 1980).

Rhodesians set a parliamentary system that favoured them, yet they wanted to have automatic passage into the august House when the scales turned against them, thus going against the philosophy of equal representation.

Representative government pervades modern politics with every country in the world having a form of parliamentary representation. 

There are two categories of parliamentary systems; bicameral (having two chambers of parliament), and unicameral (having one chamber or assembly). Out of the globe’s 193 countries, 114 are unicameral and 79 are bicameral. 

Zimbabwe, whose parliamentary system is split into National Assembly and Senate, is bicameral.

The Althingi, the Icelandic Parliament founded in 930AD is the oldest parliament.

The Ministry of Justice, Legal and Parliamentary Affairs has always played a vital role in bringing justice to citizens’ doorsteps through constant review of laws, and amending them where necessary for them to be in tandem with changing trends in jurisprudence, and close any gaps that may be manipulated by unscrupulous elements, either for political expediency or personal grandiose.

Zimbabweans have also been involved in the enactment of laws, not only through their representations in Parliament, but via public consultations, as was the case with the 2013 Constitution now in use in Zimbabwe.

Independence brought the democracy that Zimbabweans enjoy now, giving them the constitutional right to seek representation, either in the Executive or Legislature, which right should be respected and upheld in a democratic manner.

As Chief Justice Luke Malaba pointed out in “The Herbert Chitepo Memorial Lecture on Superior Courts and the Consolidation of the Rule of Law” at Great Zimbabwe University on October 11, 2019, laws must be accessible; laws must not be retroactive; laws must be objective, and be guided by the  principles of equality and legality.

To that end, not only were laws repealed and others enacted to protect citizens and deliver justice, but the number of judicial officers exponentially increased since 1980.

The Constitutional Court, which is the highest court in all constitutional matters, was born, and the High Court was decentralised by the Judicial Service Commission (JSC) to other parts of the country in a bid to provide proficient service delivery to all the people of Zimbabwe.

The Supreme Court of Zimbabwe has also actively delivered justice to the people of Zimbabwe since Independence as a superior court of appeal.

Labour matters which were not an issue in oppressive Rhodesia, have found a home in the Labour Court. 

Created in terms of Section 172 of the Constitution of Zimbabwe and Section 84 of the Labour Act (Chapter 28:01), the Labour Court has jurisdiction over matters of labour and employment as may be determined by an Act of Parliament.

Magistrates’ courts have been set-up across the country to give Zimbabweans access to justice.

In terms of gender balance, the Ministry has also delivered on its obligation through creation of equal opportunities in the Legislature, the Judiciary and National Prosecuting Authority.

Milestones in the Second Republic

 Since the coming on board of the Second Republic, led by President Mnangagwa, the Ministry has done a lot towards the realisation of the people of Zimbabwe’s aspirations.

It coordinates the Inter-Ministerial Task Force on Human Rights and Humanitarian Law (IMC-HR&HL), the Justice, Law and Order Sector (JLOS), and Universal Periodic Review National Steering Committee.

Milestones have been achieved in victim support services, access to justice, Constitutional advocacy, and ease of doing business reforms as well as alignment of legislation to the Constitution, among other deliverables.

Victim support services

 Victim support services, particularly the Justice, Law and Order Sector, have been instrumental in the establishment of emergency hotlines and call centres for reporting of gender-based violence.

Furthermore, JLOS members have been capacitated in Sign Language in order to facilitate access to justice for those with disabilities. The pillar has deepened the response to victims of sexual and gender-based violence through establishment of victim friendly institutions, and capacitation of their frontline workers.

As an advocate of gender equality and children’s rights, the Ministry has promoted the mainstreaming of Sexual and Reproductive Health and Rights (SRHR), and the eradication of sexual and gender-based violence (SGBV).

Survivors of SGBV have been assisted through the Legal Aid Directorate in partnership with UNICEF and Justice for Children, utilising the Spotlight Initiative programme.

The partnership has provided necessary legal assistance to vulnerable women and children under the Spotlight initiative.

Access to justice

Spurred on by the spirit of taking everyone aboard, and ensuring equitable access to justice in both civil and criminal matters, the Ministry has been providing free legal assistance and services to the people of Zimbabwe through its Legal Aid Directorate.

In this regard, the Ministry has decentralised its legal aid services in all the country’s 10 provinces, and cascaded it to the districts to ensure efficiency in justice delivery at every court of law countrywide.

The Ministry’s vision is to establish at least 30 Legal Aid district offices by 2030 at the rate of three per year.  In 2021, it established two district offices in Chipinge and Gokwe, and in 2022, one each in Chivhu and Chiredzi.

IMC-HR&HL and UPR

The Universal Periodic Review National Steering Committee, through the Inter-Ministerial Task Force on Human Rights and Humanitarian Law,  has enabled the Government of Zimbabwe to submit its 5th to 11th Combined Periodic Report under the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD).

In addition, in December 2021, the Government submitted its combined 2nd to 12th Report on the Covenant on Economic Social and Cultural Rights.  Furthermore, the country managed to submit the Third Universal Periodic Report cycle State Party Report in 2022.

 A Real Estate Day was launched on October 15, 2021. The celebration was advocated for by the IMC-HR&HL in order to promote and protect the respect for proprietary rights. The day will be commemorated annually.

Constitutional advocacy

As the administrator of the Constitution, the Ministry has made tremendous strides in promoting public awareness of the Constitution of Zimbabwe.

It has facilitated the translation of the Constitution into 14 officially recognised languages in Zimbabwe, namely Chewa, Chibarwe, Kalanga, Khoisan, Nambya, Ndau, Ndebele, Shangani, Shona, Sotho, Tonga, Tswana, Venda and Xhosa.

Because language is the carrier of people’s cultural norms and values, translation of the Constitution has ensured that all citizens are fully aware of their rights, freedoms and obligations in their mother tongue, whether in print, Sign or audio-visual media as well as Braille for the visually impaired.

The initiative was and/is in tandem with the Second Republic’s mantra of leaving no place and no one behind.

Dissemination of the Constitution has been conducted through outreach programmes that commenced in 2013 in all provinces of Zimbabwe and has spilled to districts.

The outreach programmes facilitate Constitutional education to all citizens. 

The subsequent printing and launching of translated versions of the Constitution, led to advocacy meetings in multi-language speaking areas, thereby promoting it further. It has also helped in conscientising citizens on the availability of the Constitution in all official languages.

The Constitution has also been distributed to various institutions, including organisations representing the visually impaired, like Jairos Jiri and Copota School for the Blind, and those for the hearing impaired, such as Zimbabwe Deaf Trust.

The outreach programmes on awareness conducted to date include advocacy meetings, presentations at learning institutions, and radio presentations. Distribution has been done at various organisations, at Zimbabwe International Trade Fair, Zimbabwe Agricultural Show and on social media platforms.

Expeditious alignment of legislation to the Constitution

On the instruction of the Cabinet, in 2015, the Ministry established the Inter-Ministerial Taskforce on Alignment of legislation to the Constitution (IMT) aimed at facilitating the legislative alignment process.

The IMT, which has done noteworthy work to date in the alignment of statutes to the Constitution, is chaired by the Attorney-General, and consists of legal advisors, senior State counsels and representatives from all Government ministries. Its role is to oversee the implementation of the Constitution through the facilitation of expeditious alignment of legislation. 

Of the 396 statutes in the country’s statute books, 185 required alignment to the Constitution, and 19 new statutes needed to be enacted. Therefore, 204 statutes needed alignment and enactment. Of these, 23 are still outstanding, meaning 181 have been aligned, inclusive of existing and new statutes.

Mileposts have been set in women’s rights through inheritance laws that considered their input in marriages (even though they may not have been registered), unlike in the past when they were left stranded upon death of spouses.

Hence, a key milestone for the Ministry was the alignment and promulgation of the Marriages Act and Guardians of Minors Act. The Marriages Act harmonies all marriage regimes existing in the country and outlaws child marriages. On the other hand, the Guardians of Minors Act reaffirms the principles of gender equality in relation to custody of children by both males and females.

Ease of doing business reforms

Through its Companies, Deeds and Intellectual Property department, the Ministry,  in an effort to promote and protect the respect for proprietary rights and facilitate the Ease of Doing Business reforms, has managed, under the e-Government flagships, to adopt the following E-Resource Solutions:-

Financial Management and Controlling, which issues all revenue receipts electronically.

Companies Online Name Search, which has replaced the manual name search application and reservation process.

Deeds Online Search that provides information on property ownership, property description, deed of transfer number and encumbrances.

In collaboration with the World Intellectual Property Organisation, the Ministry has adopted the Industrial Property Administration System (IPAS) that permits industrial property electronic searches and integration with other regional offices.

Moreover, under the Ease of Doing Business Reforms, the Ministry chaired the Technical Working Group on Registering Property and Starting a Business. It amended the Deeds Registries Act to establish an electronic registry, repeal the old Companies Act, and promulgated the Companies and Other Business Entities Act that is investor friendly, and also emphasizes on issues of corporate governance.

The new Companies enactment is a great achievement for the country as it modernised the defunct colonial era system, which was in contradiction with the socio-economic needs of the Zimbabwean society.

Also, in order to enhance protection of proprietary interests in business, in 2018, the Ministry promulgated a new Insolvency Act (Chapter 6:07). The Act has the effect of consolidating and harmonising all the insolvency laws in Zimbabwe.

It is also unique in that it introduced the concept and procedures for corporate rescue. Corporate rescue ensures life support and recovery of businesses as opposed to liquidation, thereby saving jobs and livelihoods.

The general and automatic moratorium the Act allows, provides distressed businesses with a fighting chance at survival. The Act provides for elaborate procedures for dealing with cross-border insolvencies, thus improving Zimbabwe’s ease of doing business.

Protection of innovations and inventions

In 2018, in order to deepen the respect, promotion and protection of proprietary rights, the Ministry launched the Zimbabwe National Intellectual Policy and Implementation Strategy (2018-2022). 

 The policy was designed for the creation of an enabling environment that respects and utilises intellectual property as one of the key enablers to promote and enhance economic growth and development of all sectors of the Zimbabwean economy.

The policy is in congruent with the nation’s thrust for creating a knowledge-based economy, in its pursuit to attain its Vision 2030 agenda.

In addition, the Ministry has guided the country to adopt international best practices to deepen the protection and respect of property rights through ratification of the Madrid Protocol, The Beijing Protocol, The Swakopmund Protocol and the Marrakesh Treaty.

Rehabilitation of offenders

As has been alluded earlier on, the Ministry is responsible for the incarceration and rehabilitation of offenders for their successful reintegration into the society through the Zimbabwe Prisons and Correctional Service (ZPCS).  

To that end, ZPCS has capacitated inmates with life skills, such as farming, carpentry and mechanics as well as providing offenders with basic and tertiary education in order to rehabilitate them.

In order to improve the lives of inmates, on June 2, 2021, ZPCS established the first Female Open Prison in the SADC region with the support of the First Lady Dr Auxillia Mnangagwa.

The Marondera Female Open Prison seeks to cater for the special needs of women who sometimes are incarcerated along with their children. The reform also improves conditions of imprisonment for female inmates as they are now able to pursue their family and economic issues while serving prison sentences.

Alternatives to detention

Since the Ministry’s philosophy is that incarceration should be a last resort, it is responsible for providing alternatives to detention for minor offenses through its Community Service department. This is particularly true of juvenile offenders.

Through the Pre-Trial Diversion programme, the Ministry has managed to provide counselling services to minors and their parents or guardians in order to prevent them from committing crimes.

It is important to note that the programme keeps children from acquiring criminal records before they are adults, and provides a second chance for them to live as law-abiding citizens.

Indeed, for the common good, as Aristotle avers,  “Even when laws have been written down, they ought not always to remain unaltered.”

After all, the ultimate winner should be justice, for “Law without justice is a wound without a cure ” (William Scott Downey in  “Proverbs”). 

The Ministry of Justice, Legal and Parliamentary Affairs remains steadfast in upholding, developing and providing, accessible, efficient and effective justice delivery system for the benefit of all Zimbabweans.