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Justice: Overhauling colonial laws for the common good

07 Apr, 2020 - 00:04 0 Views
Justice: Overhauling colonial laws for the common good President Mnangagwa unveils a plaque to officially open the Harare Labour Court building, last year. — Picture: Justin Mutenda

The Herald

Elliot Ziwira Senior Writer

Independence in April 1980 brought more than legality to the people of Zimbabwe, but social justice; and parliamentarism where the voice of one is the voice of all.

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. 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, the lawbook favoured the white man and not fact, wherein the concept of proof beyond reasonable 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 laws 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 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 close to 40 years now, 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 mandate is to uphold and provide accessible, efficient and effective justice delivery system to the people of Zimbabwe.


Inspired by the vision to achieve accessible world class justice for all Zimbabweans, and guided by values and principles of impartiality, diligence, loyalty, humanity, transparency, courtesy, professionalism, efficiency, accessibility, commitment and accountability, the ministry endeavours to promote an effective justice delivery system; and provide legal services, rehabilitation of prisoners that guarantee good governance, democracy and promotes the rule of law.

Rhodesia’s 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 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. 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 so called Native Office upon entry into urban areas, reserved for whites.

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 (Ranger, 1985, De Waal, 1990, Martin and Johnson, 1981). Moreover, the Native Land Husbandry Act forced blacks to de-stock, 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 effected to the constitution in 1914, 1951 and 1957 to raise the requirements for voting, that 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, neither was it meant to serve the interests of black people.

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: 1980-2020

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 rights 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 that gives them the constitutional right to seek representation either in the Executive or Legislature, which right should be respected and upheld in a democratic manner.

Since parliamentarians derive their power from the electorate, they have an obligation to deliver on their promises to the people, who have the right to question the way they are governed or represented.

The people are a crucial component in a democracy, as such, it is from them that the Legislature derives its power; not that the Legislature is a vital component on its own.

It is this aspect of representation that the ministry is cognisant of as it endeavours to fulfil its mandate to the people of Zimbabwe regardless of race, ethnicity or political inclination.

Women have also taken active participation in politics which has seen their number in both the National Assembly and Senate rising as equal opportunities are created for all Zimbabweans. A parliamentary quota system has also been put in place to empower women.

As has been alluded earlier on, in 1981 there were 69 magistrates in Zimbabwe, 12 of whom black; and eight judges, one of whom black. To address this anomaly 40 Zimbabweans underwent training as magistrates at the University of Zimbabwe in the same year.

Training was also commenced for 300 primary courts presiding officers (vatongi) at Domboshawa Training Centre in March 1981, to bridge between Customary Law of Zimbabwe and General Law.

The presiding officers were to take over from district commissioners and chiefs in two years after undergoing the six-month course.

There were 54 community courts expected to grow to 300, and 300 village courts countrywide by 1993.

Today there are 71 judges and 235 magistrates in Zimbabwe. Milestones have been set in women 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.

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 citizens.

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.

The Constitutional Court notched a number of milestones since its establishment, chief among them being the superior court’s sitting in August 2018 to consider submissions by MDC-Alliance presidential contestant Nelson Chamisa in challenge to his loss to President Mnangagwa in the July 30, 2018 harmonised elections.

The challenge itself, though it was neither unique nor top drawer in terms of legality, for the world is not unfamiliar with such, it marked a new trajectory in Zimbabwean politics in as far as opening up of political space is concerned.

That Chamisa enjoyed the freedom to reduce the majority vote of the citizens of Zimbabwe to a Constitutional Court Bench vote, in the full glare of global lenses is testimony to President Mnangagwa’s commitment to the rebuilding of the great nation of Zimbabwe.

Like any other Zimbabwean, Chamisa exercised his constitutional right to refuse defeat so that justice could be the ultimate winner.

With the court of public opinion in situ, the Bench led by Chief Justice Luke Malaba, carried the day for its learned and sober interpretation of facts to put to rest a nation’s anxiety, and refashion aspirations for that Golden Future Time  Zimbabweans have all been yearning for.

Citing the UN Secretary-General Report: The Rule of Law and Transitional Justice in Court and Post-Conflict Societies (S/2004/616), Chief Justice Malaba succinctly summed the essence of the rule of law in his Herbert Chitepo Memorial Lecture (2019), when he said:

“The rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights.”

With the Ministry of Justice, Legal and Parliamentary Affairs’ revamping of the colonial apparatus of plunder, pillage, brutality and murder since Independence in 1980; and its replacement by a people-oriented justice delivery system situated in representative government, there is a lot to celebrate as Zimbabwe’s 40th anniversary draws close.

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