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Sharon Hofisi Legal Letters

Transitional justice is a form of justice. It includes how judicial and non-judicial institutions can be used to enable a society to deal with a difficult past. Frequently, the term transformative justice is gaining scholarly recognition and is used interchangeably with transitional justice.

Transitional moments in Zimbabwe came in varied forms and inform the call for transformative justice: after the end of colonialism (for instance, Zimbabwe in 1980); after an end of the 1980s disturbances that culminated in the signing of the Unity Accord in 1987); and after the electoral cycles of the late 1990s.

I can also focus on transitions caused by the land reform programme and the various electoral cycles, especially the 2008 election that led to the formation of a Government of National Unity (GNU). ZANU-PF, under former president Robert Mugabe, and the two Movement for Democratic Change (MDC) formations – the MDC Tsvangirai and MDC-Mutambara and later Ncube were at the helm of political governance under an inter-party agreement, the Global (or general) Political Agreement (GPA). This interparty-dominated transitional period was important for it marked the apogee of party pluralism in political governance and transformative constitution-making in Zimbabwe.

The GNU brought key deliverables in the field of transitional justice such as the Zimbabwe Human Rights Commission and the Organ on National Healing, Reconciliation and Integration (ONHRI). These institutions were vital in a sense and created the need for a broad transitional justice framework that led to the inclusion of several judicial and non-judicial institutions in the Constitution of Zimbabwe, 2013.

Another transition came with the re-introduction of a single party in government, ZANU-PF, in 2013, again under Mugabe. Mugabe was to resign before the end of his rule, because of the military-assisted transition in November 2017. Emmerson Mnangagwa was to finish Mugabe’s term.

The current transitional moment was occasioned by the outcome of the July 2018 elections where Mnangagwa won with 50,8 percent despite opposition claims of rigging. It remains to be seen what the courts of law will say about the credibility of Mnangagwa as President-elect, and effectively, the legitimacy of his presidency.

In all this, what is important for Zimbabwe is to place importance on establishing effective transitional justice mechanisms. Many in the legal fraternity are familiar with the goal of the concept of justice, i.e. one which makes demands on fairness and seeing that justice is not only done, but must be seen to be done.

Lady Justice is usually depicted as blind but with sophisticated listening devices. She is blind to injustice and inequality, but listens to cries for fairness and equality. She keeps what seems to be the value-based rule of life – that if we transform our structures of governance (as guided by national and international law) we shall prevent constitutional violations on the fundamental rights of citizens.

Indeed, it is from the Constitution that the concept of justice comes to life and can be understood in a manner that binds a polity together. A little bit of us normally respect the supreme law, and a big babyish part of us does not: it refuses to submit to the Constitution.

Whatever decision a little bit of us or a big babyish part of us take, it should be clear to us that the Constitution establishes institutions whose functions are framed from the living spirit of justice. They are either established as institutions supporting democracy; independent institutions, and so forth. But they are important institutions that can allow citizens to realise the gains of transformative justice.

I think this sense of the normative reality of justice, both in itself, so to speak, and as a result of analysing institutional functions in the Constitution, is perhaps the greatest significance of our Constitution. If we cannot grasp how constitutional provisions speak to transitional justice, we need to look no further for an explanation than our own conduct.

For the time being the Constitution is clear enough that justice is an entrenched principle of good governance; and that five bodies – the Zimbabwe Human Rights Commission, the Zimbabwe Gender Commission, the National Peace and Reconciliation Commission, the Zimbabwe Electoral Commission and the Zimbabwe Media Commission – have a broad mandate to ensure that injustices are remedied.

Other institutions in the justice sector such as the National Prosecuting Authority, the judiciary, the legislature, must also be considered to be vital pillars for transitional justice. Parliamentary accountability is underscored by the Constitution and all State institutions are obligated to account to Parliament.

If justice means, or is close to fairness, we therefore as a society, ought to believe in the perennial need to uphold justice in all its forms – transitional justice included. Once we have passed this stage, the culture of impunity becomes easy to deal with.

Sharon Hofisi is a UZ lecturer in administrative law. Feedback: [email protected]