Contempt of court confirms rogue status

By Chris Mhike

Government’s persistent disregard of court orders is inconsistent with the principle of ‘the rule of law’. Such conduct threatens to entrench Zimbabwe’s status as a pariah State.

If compromises on the rule of law through the disregard of legal provisions as pronounced in court orders continue one day longer, the reigning Government of National Unity (GNU) will soon be unable to shake off the ‘rogue regime’ tag, which is often associated with dictatorships.

For the benefit of those, especially the rulers in government, who may not know or may have forgotten what ‘the rule of law’ means, a brief definition might help.

The ‘rule of law’ essentially relates to a system of governance, which resp-ects and abides by the laws of the country, and those agreed upon within the international community. It is a principle premised on at least three fundamental pillars:

Firstly, the absolute supremacy of law as opposed to the influence of arbitrary exercise of power.

Secondly, that all citizens are equal before the law, regardless of political position, wealth or other non-legal considerations.

And thirdly, the sanctity of the judiciary, whose decisions must be effective instruments in the protection of the rights of citizens.

Where the rule of law prevails, the decisions of magistrates, judges and international tribunals would therefore, have to be totally respected by all and sundry, at all times. Even a government which, loses a case at home or abroad would have to respect the decision of the presiding court or tribunal.

The latest act of blatant disrespect for the authority of judicial systems in general, and of the High Court in particular manifested last weekend in the aftermath of the delivery of Justice Bharat Patel’s judgment in the matter of Stanley Gama + Three Others Vs The Minister of Media, Information and Publicity N.O + Three Others, Case Number HC 2355/ 2009. In that case, four reporters — Gama, Vale-ntine Maponga, Stanley Kwenda and Jealous Mawarire went to court to challenge the legality of the Tafataona Mahoso-led Media and Information Commission (MIC).

The respondents in the matter were Webster Shamu in his official capacity as Minister of Media, Information and Publicity, George Chara-mba in his official capacity as the permanent secretary of Media, Information and Publicity, Mahoso who was the chairman of the MIC before its demise, and Morgan Tsvangirai in his official capacity as the Prime Minister (PM) of the Republic of Zimbabwe.

The Ministry, through the Minister and the permanent secretary, had, towards the end of May 2009, directed the accreditation of journalists by the MIC as a precondition for governmental permission to cover the just ended COMESA Summit in Victoria Falls.

The Ministry’s directives were contrary to the PM’s statement of May 23 2009, wherein the PM said the MIC no longer existed legally, and that accordingly there would be no need for journalists to apply for accreditation until the Zimbabwe Media Comm-ission (ZMC) was duly constituted to take its place.

The incontrovertible argument, which won the day in the matter was that the MIC and its administrative structures ceased to exist by operation of law on February 13 2009 when it was replaced by the ZMC as provided for under the 19th Amendment to the Constitution of Zimbabwe. While advertisements have been placed in the media, wherein citizens are invited to apply for inclusion in the ZMC, the truth is that the ZMC is yet to be constituted.

And there is nothing at law to justify the Ministry’s non-legal argument, that pending the constitution of the ZMC, the dry bones of the defunct MIC should be fleshed up to regulate the operations of the media.  The Ministry’s or MIC’s argument was thrown out by Justice Patel.

Justice Patel ordered on June 5 this year, in a properly constituted Court sitting at Harare, that Shamu and Charamba should “forthwith publicly retract in writing, and by broadcast on radio and television, the statement issued by the Ministry of Media, Information and Publicity, which was first published on May 22 2009, and then again on May 23 and 24, relating to the issue of accreditation, and which was also broadcast on radio and television.”

Shamu and Charamba, and any person purporting to act on their behalf or with their authority were specifically interdicted from making statements, publishing notices, or attempting in any other way to compel the applicants and/or any other journalists to accredit for the COMESA Summit. They were barred from assuming any functions of the ZMC, including the levying of accreditation fees.

The Ministry officials and Mahoso were barred from interfering with the applicants’ practice of journalism, and the Judge ordered that the applicants be allowed to cover the COMESA Heads of State and Government Summit without the need to produce accreditation cards from the defunct MIC. Shamu and Charamba did not make any retraction in the print and electronic media as ordered.

At Victoria Falls, the applicants were still barred by State agents from accessing the venue of the Summit. The litigating journalists were on June 7 this year turned away from the summit venue in Victoria Falls by security details. State agents insisted that the journalists, despite the production of the High Court order, could not cover the event as they were not on the Information Ministry’s list of journalists accredited to cover the summit.
Government-sponsored lawyers representing the State in the matter, announced through the State-controlled The Herald newspaper, that an appeal would be lodged against Patel’s order.

Yet paragraph 6 of the provisional order was abundantly clear, in making the point that the order would stand, notwithstanding the noting of any appeal.
The noting of the appeal would therefore, be inconsequential to compliance required in respect of the order being appealed against. The denial of access to the victorious journalists at Victoria Falls was evocative of the events after the March 2008 harmonised elections, when losers from the polls ended up assuming political power and positions, ahead of the winners.

State lawyers who lost the case in HC 2355/09 had the last laugh last weekend as their clients had their way by hook and by crook. The journalists’ lawyers had an order in their hands, which had no effect as the State had no respect for the sacred document. The disregard of Justice Patel’s order is not the only incident in recent Zimba-bwean history, when the State showed disregard for the law.

As recently as March 2009, President Robert Mugabe was quoted in the print and electronic media as having said:  “Hapana zvekuti mabhunu akaenda ku Tribunal yekuNamibia,”  being Shona words dismissing as pointless, the fact that a number of white farmers had turned to the Southern African Deve-lopment Community (SADC) Tribunal, which sits in Windhoek, Namibia for protection against Zimbabwe’s policies on land.  Zimbabwe is a member State of SADC.

The President reportedly went on: “That (SADC Tribunal proceedings on the case of Zimabwean farmers) is nonsense, absolute nonsense.” One might say perhaps Zimbabwean rulers have no regard for international law. But they would be expected to at least respect their own domestic laws, as promulgated by their own legislatures and as pronounced by their own courts of law.

Indeed, President Mug-abe made the point at the same 21st February Movement celebrations at Chinhoyi in February this year that, “We have courts here that can determine the rights of the people.” It is assumed in this present discussion, that the four journalists who went to court last week are “people” and that the High Court of Zimbabwe under whose jurisdiction Justice Patel heard the journalists’ case is one of the “courts of law” recognised by government as legitimate.

Court orders of the High Court were notably ignored in the abductions cases that rocked the nation towards the end of 2008 and in the first part of this year. The orders relating to the abductions of Move-ment for Democratic Change members in Banket are a case in point. In considering the respect given to the law it is pertinent to point out that in February this year, the parties to the GNU agreed to the violation of the Constitution of Zimb-abwe through the appointment of Ministers and their deputies, whose numbers exceeded the constitutionally given figures.

It will do the country a lot of good, should the President and the Prime Minister urgently address the latest contempt of the High Court, displayed by State officials in the journalists’ case. The importance of the rule of law, which includes compliance with the Constitution and respect of the orders of the High Court of Zimbabwe, Magistrates’ Courts, and the judgments of international tribunals, to Zimbabwe’s economic recovery and restoration to international respe-ctability, cannot be over-emphasised.

The State still has a chance to cure its default on Justice Patel’s order, and thereby save the nation from the disgraceful pariah status threat, and save the GNU from the foul-sounding ‘rogue regime’ grade.

Chris Mhike is a lawyer practicing in Harare. He is a qualified journalist who previously and at different times, worked for two of the country’s major daily newspapers, The Herald, and The Daily News (now banned).  He has handled quite a few briefs in both the Criminal, and the Civil divisions of the law.