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Use the law to assert women's rights, Biti urges young lawyers

by PDP
05 Sep 2017 at 12:08hrs | Views
The law is the best way to assert human rights in a country where the government is reluctant or the perpetrator of violations, President Biti has said.

Addressing a strategic planning meeting organised by the Zimbabwe Women Lawyers Association in Harare yesterday, Mr Biti said the responsibility is in the hands of lawyers to defend the underprivileged and escalate the war of recognition of fundamental rights.

"When you are in dominated social formations which are predatory, where the law is weaponised against the people, the law itself becomes the salvation, it becomes an instrument of change and lawyers become very critical," he said. President Biti told the gathering that women are suffering because many human rights lawyers are content with going to court to argue already set precedencies. He said young lawyers must be guided by a value system set out is section 46 of the constitution.

"When interpreting this Chapter, a court, tribunal, forum or body--must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3."

He challenged young lawyers to challenge positivism which is the notion that the law is what it is but rather lean on natural law and the principles of legal realism pursued by American Jurists like Justice Oliver Wendell Holmes Jr. Mr Biti said the laws of inheritance which oppress women will not pass the test set out in section 46 in particular the need to ensure that everyone is treated fairly and equally before the law.

He told the lawyers to take advantage of the new constitution which states that the law is not static.

"The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution."

Lawyers are important in that judges cannot develop the law on their own but lawyers have to take cases to the courts. He emphasised the point that the law must be developed in the interest of justice not the executive or Civic Society Organisations.

Lawyers must therefore fill the gap resulting from government incompetence and reluctance to align the laws of the land to the supreme law.

He said the constitution is now the supreme board but politicians are missing the point they are still caught up in the glory of the past of legislative democracy which has since been replaced by a constitutional democracy.

"This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency."

Mr Biti has been involved in high impact, creative litigation on public interest matters bringing to the constitutional court arguably the highest number of cases and also winning arguably the highest number of landmark constitutional cases since the effective date of the constitution.

The cases include the Mudzuru case which abolished child marriages, the Obadiah Makoni case which declared life imprisonment without parole unconstitutional, the Michael Nyika case which abolished the concept of special treatment when suing the police and the abolishment of corporal punishment among other cases.

Mr Biti encouraged the young lawyers to follow his footsteps highlighting that young lawyers from Tendai Biti Law are doing it, citing an example of a recent judgement against Mandi Chimene and others by Justice Matanda-Moyo.

She ordered the Minister to restore peaceful occupation of a farm which had been invaded by ZANUPF supporters at the instigation of Chimene.

The Mudzuru case in Zimbabwe won the constitutional court an international award, is referred to in many jurisdictions worldwide. He said the legislature has however failed to codify the judgement because they want to remain popular with the Marange sect which marries off children.

Mr Biti urged the civic society to pressurise the legislature and policy makers to do their work of aligning laws to the constitution.

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Source - PDP Communications