Opinion / Columnist
What constitutionalism when citizens barred from exercising their rights?
10 Jan 2024 at 10:29hrs | Views
It was quite curious listening to the Chief Justice of Zimbabwe Luke Malaba urge Zimbabweans to respect constitutionalism.
He made these comments at the occasion to mark the opening of the 2024 legal year at the Constitutional Court today (8th January) in the capital Harare.
That is all well and good.
Surely, who can find fault in a remark by the country's most senior judicial officer urging each and every one of us to religiously adhere to the country's supreme law?
The law is the cornerstone of any civilized society - if this is pro-people and deliberately designed to foster democracy.
The Constitution is critical in safeguarding the citizenry's rights as well as clearly defining their responsibilities.
Equally important are demarcations on what citizens can expect from their government and how this should be done.
However, it becomes a huge problem when the government itself is at the forefront of defying the same sacrosanct document.
This is the tragic reality we are faced with in Zimbabwe.
As much as Malaba may implore the nation to respect constitutionality, who is holding our leaders to account when they daily violate those sacred tenets contained in our Constitution?
For starters, I found it quite comical hearing words such as 'respect for constitutionality' coming out Malaba's mouth.
Who can forget the huge controversy that surrounded the amendment of section 186 (1)(a) - in which the retirement age of serving court judges was moved from 70 to 75 years old?
This undeniable term limit extension was not supposed to benefit those who occupied the particular office before or during the amendment (according to section 328(7) of the Constitution).
Nonetheless, Malaba - who turned 70 years old in May 2021 - benefitted, as the new law was passed just a few days prior.
Respect constitutionality, my foot!
Be that as it may, there is another pressing matter I want to interrogate.
One of the most vital indicators of a genuine democracy is the right to peacefully demonstrate.
If one needs to see signs that a country respects its people's rights, then their ability to freely demonstrate is at the top.
Do we not watch the French protesting nearly every month, or Americans go onto the streets for numerous reasons, or the British converge in different parts of their kingdom, making various demands?
That, to anyone who witnesses, unequivocally says: This is what democracy is all about.
Indeed, there can never be a louder symbol of a people's rights than their ability and freedom to openly and publicly air their grievances and demands.
In Britain - regardless of the controversies, accusations, and counter-accusations - the world has, nonetheless, watched as the people have regularly marched on the streets for the cause of the Palestinians (in the ongoing war with Israel).
In spite of the occasional arrests of those engaged in illegal or perceived hate messaging, these protests have generally gone uninterrupted.
That is when one appreciates the beauty of democracy - particularly considering that the British government has already made it abundantly clear that they stand with Israel.
Granted, there is no nation on this planet with a perfect democracy - as we have even observed, at times in shock, in the case of Britain - but, generally, we can not help admiring these countries.
For those of us in Zimbabwe, even those little flaws pale into insignificance as they are immediately overshadowed by the fact that the Brits are actually permitted to demonstrate in the first place.
We, on the other hand, are in a country where an opposition leader can be sentenced to four years in prison.
His crime?
For merely urging oppressed impoverished citizens to go onto the streets to peacefully demonstrate against rampant corruption and mismanagement by the ruling elite.
This is exactly what happened to Jacob Ngarivhume - who was only rescued from jail after having already spent eight months as a result of an appeal to the High Court in December 2023.
He had been imprisoned by Magistrate Feresi Chakanyuka in April 2023.
In their ruling, High Court judges of appeal Pisirayi Kwenda and Fatima Maxwell noted that the State failed to prove a prima facie case in charging Ngarivhume.
In other words, the opposition leader had not only been found guilty but also sentenced to four years in prison on baseless allegations that lacked the most basic evidence.
So why was he even arrested, let alone jailed?
The answer is simply that this is Zimbabwe.
In this county, anyone urging citizens to exercise their democratic right to peacefully demonstrate is regarded as an enemy of the state who should be treated as an outlaw.
Let us remember that this right is actually enshrined and protected in our Constitution (section 59).
As such, those calling for peaceful demonstrations are not breaking any law - but, in fact, following it.
Only a few days ago, we witnessed the country's law enforcement 'assuring Zimbabweans' that they were ready to maintain law and order, and would descend heavily on those intent on 'disturbing the peace'.
Who was being referred to here?
Well, there is a group of activists called the Job Sikhala Solidarity Council, which had announced plans to stage several peaceful demonstrations.
These are in support of opposition leader Job Sikhala who has been languishing in pre-trial detention for the past 600 days - on various spurious charges - yet, repeatedly denied his constitutional right to bail (under section 50).
The group, led by renowned labor unionist Obert Masaraure, is demanding justice and the immediate release of Sikhala - seeing the unconstitutionality of his continued incarceration.
Nonetheless, the response by the government has been nothing short of hysterical, for lack of a better word.
These planned demonstrations have already been deemed 'nefarious social and economic destabilizing activities'.
Surely, how was this conclusion reached before the mass action has even been carried out?
In a country that respects constitutionality - in alignment with the statement by the Chief Justice - should the police's first reaction not be to guarantee the provision of adequate personnel to ensure these protests proceed without incident?
That is what we expect in a legitimate democracy.
When citizens call for peaceful demonstrations, the first and automatic response should never be banning them or accusing the organizers of being 'nefarious'.
What is 'nefarious' about exercising one's constitutional rights?
Constitutionality dictates that the government actually sanctions these demonstrations and provides the necessary support to ensure they go ahead unmolested and peacefully.
In fact, is that not what we witnessed in November 2017, when Zimbabweans flooded the streets in demanding the resignation of then president Robert Gabriel Mugabe?
Did law enforcement, rather the military, do the right thing - of actually protecting the demonstrators - simply because this was during a coup d'état?
These unfortunate statements by those in authority in Zimbabwe are, tragically, not the exception but have disturbingly become the norm.
No perceived 'anti-government' mass gathering is permitted in the country.
Anyone who so much as urges citizen to demonstrate is immediately clamped down upon.
We witnessed the same soon after the hotly disputed and globally discredited August 2023 elections.
When some members of the opposition CCC party made reference to demonstrations, this incited a similar angry response from law enforcement.
This was in addition to the constant banning of their rallies during the election campaign period - in violation of section 67 of the Constitution.
Now, I ask again.
When Malaba was speaking about the need to respect constitutionality, to whom was he referring?
I do honestly hope he was talking to the government of Zimbabwe, as they are the ones at the forefront of the willful disregard of this sacred document.
Those who need to hear this message are not in the opposition nor the ordinary man, woman, or child on the street.
These words have to be directly spoken to and heard by the people in the highest echelons of power in Zimbabwe.
© Tendai Ruben Mbofana is a social justice advocate and writer. Please feel free to WhatsApp or Call: +263715667700 | +263782283975, or email: mbofana.tendairuben73@gmail.com, or visit website: https://mbofanatendairuben.news.blog/
He made these comments at the occasion to mark the opening of the 2024 legal year at the Constitutional Court today (8th January) in the capital Harare.
That is all well and good.
Surely, who can find fault in a remark by the country's most senior judicial officer urging each and every one of us to religiously adhere to the country's supreme law?
The law is the cornerstone of any civilized society - if this is pro-people and deliberately designed to foster democracy.
The Constitution is critical in safeguarding the citizenry's rights as well as clearly defining their responsibilities.
Equally important are demarcations on what citizens can expect from their government and how this should be done.
However, it becomes a huge problem when the government itself is at the forefront of defying the same sacrosanct document.
This is the tragic reality we are faced with in Zimbabwe.
As much as Malaba may implore the nation to respect constitutionality, who is holding our leaders to account when they daily violate those sacred tenets contained in our Constitution?
For starters, I found it quite comical hearing words such as 'respect for constitutionality' coming out Malaba's mouth.
Who can forget the huge controversy that surrounded the amendment of section 186 (1)(a) - in which the retirement age of serving court judges was moved from 70 to 75 years old?
This undeniable term limit extension was not supposed to benefit those who occupied the particular office before or during the amendment (according to section 328(7) of the Constitution).
Nonetheless, Malaba - who turned 70 years old in May 2021 - benefitted, as the new law was passed just a few days prior.
Respect constitutionality, my foot!
Be that as it may, there is another pressing matter I want to interrogate.
One of the most vital indicators of a genuine democracy is the right to peacefully demonstrate.
If one needs to see signs that a country respects its people's rights, then their ability to freely demonstrate is at the top.
Do we not watch the French protesting nearly every month, or Americans go onto the streets for numerous reasons, or the British converge in different parts of their kingdom, making various demands?
That, to anyone who witnesses, unequivocally says: This is what democracy is all about.
Indeed, there can never be a louder symbol of a people's rights than their ability and freedom to openly and publicly air their grievances and demands.
In Britain - regardless of the controversies, accusations, and counter-accusations - the world has, nonetheless, watched as the people have regularly marched on the streets for the cause of the Palestinians (in the ongoing war with Israel).
In spite of the occasional arrests of those engaged in illegal or perceived hate messaging, these protests have generally gone uninterrupted.
That is when one appreciates the beauty of democracy - particularly considering that the British government has already made it abundantly clear that they stand with Israel.
Granted, there is no nation on this planet with a perfect democracy - as we have even observed, at times in shock, in the case of Britain - but, generally, we can not help admiring these countries.
For those of us in Zimbabwe, even those little flaws pale into insignificance as they are immediately overshadowed by the fact that the Brits are actually permitted to demonstrate in the first place.
We, on the other hand, are in a country where an opposition leader can be sentenced to four years in prison.
His crime?
For merely urging oppressed impoverished citizens to go onto the streets to peacefully demonstrate against rampant corruption and mismanagement by the ruling elite.
This is exactly what happened to Jacob Ngarivhume - who was only rescued from jail after having already spent eight months as a result of an appeal to the High Court in December 2023.
He had been imprisoned by Magistrate Feresi Chakanyuka in April 2023.
In their ruling, High Court judges of appeal Pisirayi Kwenda and Fatima Maxwell noted that the State failed to prove a prima facie case in charging Ngarivhume.
So why was he even arrested, let alone jailed?
The answer is simply that this is Zimbabwe.
In this county, anyone urging citizens to exercise their democratic right to peacefully demonstrate is regarded as an enemy of the state who should be treated as an outlaw.
Let us remember that this right is actually enshrined and protected in our Constitution (section 59).
As such, those calling for peaceful demonstrations are not breaking any law - but, in fact, following it.
Only a few days ago, we witnessed the country's law enforcement 'assuring Zimbabweans' that they were ready to maintain law and order, and would descend heavily on those intent on 'disturbing the peace'.
Who was being referred to here?
Well, there is a group of activists called the Job Sikhala Solidarity Council, which had announced plans to stage several peaceful demonstrations.
These are in support of opposition leader Job Sikhala who has been languishing in pre-trial detention for the past 600 days - on various spurious charges - yet, repeatedly denied his constitutional right to bail (under section 50).
The group, led by renowned labor unionist Obert Masaraure, is demanding justice and the immediate release of Sikhala - seeing the unconstitutionality of his continued incarceration.
Nonetheless, the response by the government has been nothing short of hysterical, for lack of a better word.
These planned demonstrations have already been deemed 'nefarious social and economic destabilizing activities'.
Surely, how was this conclusion reached before the mass action has even been carried out?
In a country that respects constitutionality - in alignment with the statement by the Chief Justice - should the police's first reaction not be to guarantee the provision of adequate personnel to ensure these protests proceed without incident?
That is what we expect in a legitimate democracy.
When citizens call for peaceful demonstrations, the first and automatic response should never be banning them or accusing the organizers of being 'nefarious'.
What is 'nefarious' about exercising one's constitutional rights?
Constitutionality dictates that the government actually sanctions these demonstrations and provides the necessary support to ensure they go ahead unmolested and peacefully.
In fact, is that not what we witnessed in November 2017, when Zimbabweans flooded the streets in demanding the resignation of then president Robert Gabriel Mugabe?
Did law enforcement, rather the military, do the right thing - of actually protecting the demonstrators - simply because this was during a coup d'état?
These unfortunate statements by those in authority in Zimbabwe are, tragically, not the exception but have disturbingly become the norm.
No perceived 'anti-government' mass gathering is permitted in the country.
Anyone who so much as urges citizen to demonstrate is immediately clamped down upon.
We witnessed the same soon after the hotly disputed and globally discredited August 2023 elections.
When some members of the opposition CCC party made reference to demonstrations, this incited a similar angry response from law enforcement.
This was in addition to the constant banning of their rallies during the election campaign period - in violation of section 67 of the Constitution.
Now, I ask again.
When Malaba was speaking about the need to respect constitutionality, to whom was he referring?
I do honestly hope he was talking to the government of Zimbabwe, as they are the ones at the forefront of the willful disregard of this sacred document.
Those who need to hear this message are not in the opposition nor the ordinary man, woman, or child on the street.
These words have to be directly spoken to and heard by the people in the highest echelons of power in Zimbabwe.
© Tendai Ruben Mbofana is a social justice advocate and writer. Please feel free to WhatsApp or Call: +263715667700 | +263782283975, or email: mbofana.tendairuben73@gmail.com, or visit website: https://mbofanatendairuben.news.blog/
Source - Tendai Ruben Mbofana
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