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Sharon Hofisi Legal Letters
Transformative justice is a relatively new discipline which is usually seen as synonymous with transitional justice. Although transitional moments come in varied forms and are frequently associated with serious conflicts or serious human rights violations, transformative justice is largely socio-legal in scope, and its focus is to ensure that justice should lead to a game-changing performance in institutional politics and administration of a society. The end result is to promote positive social change and to enable victims or affected societies to access and realise the benefits of other forms of justice such as distributive, restorative justice or reparative justice and so forth.

Why transformative justice after elections: It’s been a month after the August 1 violence. The concern within and beyond our borders is that justice must not be sacrificed at the altar of political expediency. The President has appointed seven commissioners to lead a Commission of Inquiry (COI) into the sad event that led to the deaths of six people. Even with their different backgrounds, the commissioners can drive the transformative justice process so that their findings can provide definitive link between constitutional rights on human life and property as well as the duties contemplated by the Constitution of Zimbabwe, 2013.

Society’s expectations: The basic conception of justice is that “justice will be done or will be seen to be done.” This is why lady justice is always presented as blind, but with very sophisticated listening devices. The Zimbabwean society is currently divided either on the course of transitional justice to be taken on one hand, or on the personalities to lead transitional justice processes. Linked to the personality appeal is a significant part of the Zimbabwean society which believes that there was no need for the COI. But from a transformative justice perspective, I argue here that a COI is important even where the perpetrators of the disturbances are known. The logical corollary to the establishment of the commissioners is to look at the rationale and extent of the constitutional breaches. If there were violations, as it clearly seems on the right to life and property, then judicial or non-judicial ways of ensuring that justice is done will be designed accordingly. The result will always follow the cause.

Terms of reference: The Commissioners will work within a given timeline and will follow specific terms of reference. My concern is that they must not procrastinate and must not be fixated on “African Time” as epitomised in adages like “Relax there is no hurry in Africa!” By and large, they are carrying out an inquiry on the deaths and destruction of property. In the broad interests of justice, the two broad issues for consideration have a constitutional dimension. The constitution gives the right to life under the Bill of Rights. The right holder is however, expected to respect, protect, promote and fulfil certain duties under the Bill of Rights. He is also enjoined to respect the presumption on the existence of other people’s rights. Put simply, a citizen or protester is also a duty holder. The commission will look into the rights that were violated and the duties that were breached. I may not go into detail on the terms of all the terms of reference in this newspaper column.

Importance of Transitional moments in a polity: transitional moments can significantly affect events or institutional arrangements in a polity, especially the setting up of institutions to deal with conflict resolution. In this case, it is important to consider the feelings of the affected people as expressed in various circles as they contribute to the society’s well-being if properly addressed. The best way to maintain a measure of justice is to use the values or tentacles of good governance that obligate us to be accountable, responsive and transparent. The COI is made up of locals and foreigners who can help us to focus on the best way(s) to ensure that the current electoral cycle, 2018-2023 (both pre-election, actual election and post-election) will be built upon peace.

Independence of Commissioners: Personality politics is always used to track domestic politics. Most of us know for instance that former president Robert Mugabe was a chief actor in our foreign policy. The late Morgan Tsvangirai was the face of opposition politics and ‘democracy’. Politicians or public figures are defined through public discussions or in public forums such as social media or parliaments. Constitutional law, a creature of public law and bastion of fundamental human rights, involves the performance of public transactions that are usually debated in public. The appointment of commissioners can cause a public outcry simply because the public is affected or believes certain individuals will not serve its interests, but those of the appointing authority.

Public concern may also affect a person’s independence especially in instances where the person concerned has worked with the public or in public institutions for a long period. You will be certain that academics at State universities such as Charity Manyeruke or Lovemore Madhuku will have their independence assessed from the perspective of their “other” lives as political players. For Manyeruke, it is her association with zanu-pf while Madhuku associates with the National Constitutional Assembly (NCA), now a political party. Other concerns, largely on the personalities of the commissioners with Zimbabwean nationality such as Madhuku and Manyeruke as well as lawyer Vimbai Nyemba, have been suggested and consumed in media circles. These include loyalty to the president; association of some commissioners with zanu-pf; association with presidential candidates who lost to the current president; direct participation in the presidential election; and so forth.

Some of the criticisms on these commissioners are unmeritorious for want of compliance with the constitution. This is so considering that the constitution, the Grundnorm-the blueprint on normative or value-based politics, entrenches political rights and the content of political rights clearly allows Zimbabweans to form; join; or associate with political parties of their choice. We can’t fault the “givens” in the constitution by way of committing other constitutional breaches.

The constitution also protects the freedom of individuals to be represented by a lawyer of their choice. For instance Vimbai Nyemba and Lovemore Madhuku are lawyers and can represent any clients who require their professional services. That Nyemba holds other portfolios in other commissions is neither here nor there. For Madhuku, there is no doubt that he is a judicious academic, lawyer, politician and expert in constitutional law. He can demystify the law with unparalleled ability. He formed a political party because he felt that he was free to be different from his colleagues in the opposition. His constitutional expertise takes him where he always finds himself in today. There is nothing amiss if he can be a member of a commission that deals with the violation of a constitutional right such as the right to life and property rights.

As for Madhuku and Manyeruke, there is no doubt in any polity that academics and politicians do two broad things: they either follow or reflect on national developments; or influence and shape national events. Whether they are chosen from the ruling party or the opposition, or from apolitical organisations (if they even exist), they can be used to design a specific national plan or inquiry so that a battered society can move towards healing, peace, reconciliation and realise justice.

What matters is that the appointed persons must not be used as pawns to control national or legal outcomes.

Pawn push, a style used in chess, may lead to a stalemate, checkmate or fool’s mate. When we look at commissioners with foreign nationalities, their areas of expertise matter significantly. We have someone involved in trade unionism for a long time and can understand the concerns of the protesters better than the other commissioners. Another has a military background. There is an expert in international legal justice who can bring in deep knowledge on the link between constitutionalism and internationalism; domestic and international legal justice as well as various ways to approach transformative justice in Zimbabwe.

The positives are plenteous. For those we know and usually associate with, more can be said. While Manyeruke may be seen as a zanu-pf supporter, she is also an experienced social scientist. Ceteris paribus, social scientists work with governments in building public trust. The August 1 events do require the input of social scientists to signpost real ideas on what actually went wrong, how we can end polarisation in our society, and how we can all play a part in healing our society from a brutal society. Violence is a social construct and theories or ideas for positive social interaction that are generated by social scientists can be used by doctors or counsellors to design models of healing or empowering victims and affected families. Social scientists play a key role in influencing State policy. Put simply, they are policy influencers. Manyeruke is the dean of the faculty for social studies, a faculty that oversees departments such as sociology, psychology, political science, administrative studies and social work. All these departments can immensely contribute to the theory and practice of conflict resolution in our society. She is also a trade analyst and there is no doubt that the August 1 event has been seen as a black spot which can potentially scare away investors. Manyeruke’s contribution and her social science predictions can be used to analyse the commission’s findings. We must consider Manyeruke’s appointment from the perspective of how our social scientists can enjoy our positive affirmation in Zimbabwe and how they can be involved in activities that bear on positive social change.

Professor Madhuku is a prominent constitutional expert. He trained many lawyers at the Faculty of Law at the University of Zimbabwe. He teaches jurisprudence and advanced legal theory and comparative constitutionalism. The three disciplines are important in ensuring that lawyers (both those at undergraduate or postgraduate levels) learn the fundamentals on how to litigate strategically in issues that affect the public such as securitisation or militarisation of State institutions. His courses also enable lawyers or judges who take post-graduate studies to appreciate the link between the theory of law and the realities in our society. Zimbabwe must design its own advanced legal theories and luminaries like Madhuku must lead the light. We can’t just celebrate John Rawls’ theory of justice, John Austin’s positive laws, Roscoe Pound’s legal realism, or Montesquieu’s separation of powers doctrine. I am sure Madhuku’s appointment together with the disciplines he teaches will enable him to advise the commission on the duties and rights at play. He can even use his experience to design the law curricula which balances theory and practice. I don’t think those who seriously understand the dynamics in legal theory or the proper distinction between general aspects of law and the need to theorise on advanced legal issues can falter Madhuku’s appointment. Unless of course they want their arguments to be considered petty, they are at large to do so.

When examining the commissioners from outside Zimbabwe, we must look at how they can significantly help ensure that the inquiry leads to the realisation of transformative justice. The South African connection in the appointment is very important considering how former South African presidents Thabo Mbeki and Jacob Zuma were actively involved in mediating our convoluted election conflict that led to the establishment of the Government of National Unity (GNU) between 2009 and 2013. We had largely peaceful elections in 2013 and 2018 because of the infrastructure of peace that was made possible through the mediation, or rather, facilitation of South African presidents. Ten years of significant peace in Zimbabwe are explained using the input from South Africa. There were instances when Mbeki and Zuma would simply facilitate and abandon mediation efforts. This was deliberately done to allow zanu-pf and the two MDC-formations, MDC-T and MDC, to find each other in a Zimbabwean way.

The international law expertise is important considering the importance of human rights and developments in conflict resolution as an academic discipline under both national and international law. Even, the military background of some commissioners is important from a strategic perspective. Security considerations are sometimes used to limit the extent to which human rights may be enjoyed. Although the backgrounds and vitae of the commissioners weren’t given in detail, their major achievements are well-documented and speak for themselves. Even in the Bible, a source of deific law, there is something that states unequivocally that ‘your name will find a place for you amongst great men’.

Sharon Hofisi is a UZ lecturer and researcher on transformative or transitional justice. He focuses on the role independent commissions such as the Zimbabwe Human Rights Commission and National Peace and Reconciliation Commission. Feedback: [email protected]