Interview - Mtetwa: MDCs do not help their cause

PROMINENT human rights lawyer Beatrice Mtetwa - currently on trial for allegedly insulting the police while trying to defend her clients - was in London recently to launch the film about her work in Zimbabwe, 'Beatrice Mtetwa and the rule of law.' She spoke to SW Radio Africa's Violet Gonda about the rule of law ahead of elections at the end of the month and explains how 'the abnormal has become normal.'  Mtetwa also gave her views on the independence of the country's Constitutional Court judges and explained why she feels the MDC formations do not help their cause by often failing to respond to the machinations of Zanu-PF are going and responds to criticism that she is driven by fame and money.

VIOLET GONDA: My guest on the Hot Seat is prominent human rights lawyer Beatrice Mtetwa who was in London recently for the official screening of her film "Beatrice Mtetwa and the Rule of Law". Welcome on the programme Beatrice.

BEATRICE MTETWA: Thank you Violet.

GONDA: First of all, what is your main take-away from this film?

MTETWA: It's a film that I'm hoping will really be used as an advocacy tool in any country where there's a rule of law deficiency. Although Zimbabwe is being used in the film, the story there could be in any other country really. So I'm hoping that it might help advocacy on rule of law issues and how lawyers can play a role in trying to restore the rule of law.

GONDA: You actually say in your film that President Mugabe and Zanu-PF have always engineered the legal and judiciary system in their favour; you said: "Unlike a lot of other dictators, Robert Mugabe doesn't just go out and do what he wants. He first goes to parliament and passes a law and when you say 'hey you can't do that', he will say that is the law." Can you elaborate?

MTETWA: Well, we have seen many unjust laws being put in the statute books to say that this is the law. You take for instance AIPPA which resulted in many journalists having to leave the country and many media houses being shut down. Everybody knows that, that law ought not to have been really passed and that it ought not to have withstood constitutional scrutiny. It is an unjust law but it was meant to target a specific group in the media industry. And we have many such laws which were used including the laws used in the appropriation of farms. So you find that what was illegal yesterday automatically becomes legal today because the law now says so regardless of how unjust and how unconstitutional that law is.

GONDA: Do you agree with people, especially in the MDC formations who are saying Zanu-PF is manipulating electoral rules in their favour?

MTETWA: But they've done that, they've always done that - why should they stop now? The problem is that the MDC always cries foul at the end of the day; when the machinations are going on they are quiet. When judges were suddenly sworn in ahead of the constitution becoming law, and they are made Constitutional Court judges - and these include a judge who is known to have subverted electoral rules before - they (MDCs) completely kept quiet about it. There was not a squeak from them. What did they think was the plan? That was such a dead giveaway, you would have expected them to have complained at that stage - that hey you can't pack the Supreme Court ahead of the constitution becoming law, you have to consult us and yet they didn't do anything like that. They started crying foul after the event, not before.

GONDA: So are the MDC being out-maneuvered by Zanu-PF?

MTETWA: You know I think they give too much good faith to a group of people that has never really had good faith. And they certainly are being out-maneuvered because they are not as pro-active as they ought to be. They do not look at strategies ahead of things happening, they do not analyse what might have gone on just before key events take place - to say why is this happening, how can we stop it?

GONDA: Some observers actually say it would actually appear that what is happening is a perfect plan or plot by Zanu-PF to obstruct their partners in government from dealing with the issue of elections and preparing for elections. Do you see it as that?

MTETWA: Well that's part of politicking. If you are politicking and you want to remain in power, you have to strategise. You look at ways of how to defeat your competitor and that's what Zanu-PF is doing. And if the MDC doesn't see that as a diversion strategy that is meant to really make them worry more about when elections are than getting themselves prepared for elections, they'll have themselves to blame at the end of the day. It's a game for politicians and those games unfortunately are not black and white ruled games, you do what you think will make you get back into power.

GONDA: A lot of people are surprised that the MDCs were actually shocked that President Mugabe would use a presidential decree to controversially fast-track amendments to the Electoral Act to by-pass parliament and that that Justice Minister Patrick Chinamasa unilaterally filed a court application requesting an extension of the July 31st poll date without consulting. Your thoughts on this?

MTETWA: If we go back to the beginning of the GNU soon after they signed the Global Political Agreement, we have had acts of unilateralism from Zanu-PF from day one. Appointment of judges, appointment of governors, virtually everything has been done on a unilateral basis. I don't know why suddenly they should think that Zanu-PF would change at the end of the GNU - particularly where the stakes are so high. So, there's no trick that they're not going to use in the book to really try and secure power for themselves. So I don't understand why anyone should be surprised that what has happened in the last week has happened because it's been happening for the past four years.

GONDA: What did you make of the idea of extending the poll date by a couple of weeks?

MTETWA: Even if you extend and even if you put new electoral rules into place, and you do the relevant amendments, I don't know that there's sufficient time that will make the people out there, for whom these amendments are meant, understand that the game of playing politics has now changed. Those who committed political violence - when are they going to be told that political violence this time around will be treated differently? How are they going to then conduct themselves differently when there's hardly any time for any advocacy - to say to people out there - this time around, if you do x, y, z, these are the consequences?

The time is just not there and with the limitations that are there in terms of access to information, I frankly do not believe that out there in the rural areas people will believe that the rules of playing the political game have changed at all. So, yes you can have those amendments but on the ground I don't know that at a practical level, they will inform the electorate of any changes in our electoral system.

I personally think that the advocacy for people out there to know what is doable and what is not doable is crucial and that therefore they ought to have pushed for dates certainly in October at the very earliest - to make sure that really on the ground people are aware that there are these changes and what these changes mean for them and that there's nothing to fear in going out to vote for a person of your own choice. A two-week extension is not going to change anything on the ground. It might change stuff in the statute books but if there is a new law that the people don't know, how do you expect it to really influence the voting patterns of persons?

GONDA: What did you make of the initial Constitutional Court judgment?

MTETWA: There was nothing surprising about it for me actually but I was quite pleased that there were two judges who were able to assert their independence and interpret the constitution as they saw fit. But I honestly do not believe that anyone unexpected any differently from the judges who agreed with each other on the interpretation, the majority decision that is.

GONDA: How independent are the judges who sit on this bench?

MTETWA: It's very difficult to say because independence can be very difficult to judge. The fact that two of them had dissenting views means that when they want to exercise their independence they can do so but I don't know that we can say all of the ones in the seven are not interested in elections. I mean Justice George Chiweshe is known to have played a crucial role in the last election. One of the questions that one would have to ask is should he have been one of those judges to sit in an electoral case of this magnitude particularly taking into account his involvement in the last elections. I don't know that he can be as independent as he ought to have been, particularly on the issue of elections.

GONDA: The fact that there are 31 cases in the Constitutional Court that was just constituted about two months ago - what are the implications of this?

MTETWA: I don't know what the other cases are about and whether they've been brought on an urgent basis but certainly all election cases are treated urgently on the basis of the precedent that they set in the Mawere case - because if you were able to find urgency in the Mawere case you ought to find urgency in every other constitutional case. Because there ought to be equality before the law for all persons who bring to court constitutional matters to do with the upcoming elections.

GONDA: In his application, on behalf of the government, Justice Minister Patrick Chinamasa apologized to the judges saying he didn't want to file this poll date extension application but that he was forced by SADC to do that. What did you make of that?

MTETWA: Well, Chinamasa has set a precedent before where he has gone to court in Zimbabwe to say to that court it should disregard decisions of the SADC Tribunal because that's an external body. So he virtually wanted to use that very same precedent to this Constitutional Court to say that these are the external busybodies who are trying to influence our legal system, therefore you are at liberty to disregard their decision as you did before with the SADC Tribunal decisions. There can be no question that that was the intention. For him it is a game particularly when you take into account the fact that Chinamasa was not an applicant in the original judgment. In fact they were respondents and it's one of the most unusual cases where you are sued, and then instead of Jealousy Mawarire running with that judgment, now saying 'it is me whose rights are being violated', it is now the person who was sued who is saying 'oh I am sorry, this is what I wanted'. It is a dead giveaway that clearly Mawarire was a proxy for the Chinamasas of this world. And that therefore the Constitutional Court was really hoodwinked into thinking that this was a Mawarire matter. Why should he apologize? He never went to Court to ask for that order. It is an order that was supposed to be in favour of Mr. Mawarire. The issue was whether Mr. Mawarire's views overcame the views of all the other persons who were now before the Constitutional Court and had various issues to take with the elections.

GONDA: The others wanted Chinamasa to withdraw the original application, but wouldn't that have influenced the judges already since they would have seen the first affidavit talking about all these other problems he had noted, such as being forced by SADC?

MTETWA: If it was withdrawn obviously it ought not to have influenced them but we recently had a case in the High Court where a judge proceeded to give judgement in a matter that had already been withdrawn so you never really know how it would pan out. But you know there is a precedent where the President has gone to Court to ask for extensions in the case of those MPs who wanted by-elections held and Chinamasa went to Court time and again to say 'oh we need an extension, we need an extension and we need an extension' and the Court granted him that. So it's not like going back to Court in this particular case would have be any different. What will be happening is something that has already been done and has already been granted because Justice Chiweshe heard the last of those applications where extensions were being sought and granted them. So it's not like it was something new for the Court to vary its own judgement and to extend the period in an election case.

GONDA: I remember around this time five years ago, you were busy defending many victims of political violence or political detainees - is it different this time round?

MTETWA: I don't think it is different, that's why I'm concerned with the short time periods where really civil society will not be able to be involved in electoral processes, where there'll be no advocacy particularly on the issues of political violence because the time just won't be there - and where really you hardly have had any advocacy issues around political violence even from the political parties and so I don't expect that there will be any difference because the violence will be there.

GONDA: But around this time in 2008 there was a lot of violence, there was a lot of abductions, arrests. Hasn't that changed though to some extent?

MTETWA: I think that what you are not looking at is the fact that last time around this was the run-off period where now the stakes were even higher than first time around. So clearly that run-off period had a lot of political violence because of what is was, and if you recall the MDC leader actually withdrew from participating in that run-off because of the violence. So there's that slight difference but we don't know what actually is going to happen this time around because it's not like there's been an election and then there has to be a run-off. That certainly makes a huge difference because of that run-off period that resulted in the stakes being higher than in any normal election.

GONDA: A lot of people have been excited that Zimbabwe now has a new constitution - do you feel that we are heading in the right direction with the new constitution?

MTETWA: It's a good thing to have one's rights clearly defined in a constitution, they are useful but at the end of the day, a constitution is just a piece of paper that has to have its provisions interpreted by the Constitutional Court and whether that Constitutional Court will interpret it in a manner that will give people rights, the jury is still out - we don't know whether that is going to happen. So for me I think that there's over-excitement on there being a new constitution because we've always had a constitution, it's always had a Bill of Rights but those Bill of Rights were not interpreted in a way that gave the people of Zimbabwe basically the rights that were guaranteed. So I don't know what has changed particularly when you look at who is going to interpret the constitution. It's exactly the same men and women who were interpreting the previous one. I don't know why people think there will be a damascene change in the interpretation of the new constitution.

GONDA: What about the Criminal Procedures Act? I know a lot of human rights lawyers have been complaining about that as the State has invoked this provision several times to keep political detainees in prison for longer than is required by law. What is the status of that in the new constitution?

MTETWA: That section has been challenged even under the old constitution and the challenges have not as yet been set down but there's been no attempt to have that section repealed because it clearly is unconstitutional to have a court decision suspended on the mere say so of one party to proceedings. It just clearly is unconstitutional because it is taking away rights that have been granted by a Court because one side to the proceedings has just said 'I invoke the section'. There's no attempt to get the Court to then say why are you invoking? This is not a proper case for invocation and therefore my decision stands no. So you have one side making a decision and it's the kind of provision that you would expect the Constitutional Court to have really taken seriously and heard those cases seriously. But it goes back to the selective application of the law, sections like that will be there, they can be repealed but the point is we are still going to have arrests that are based on who is who and not who has committed which crime until there is a political will to really ensure that there is equality of all before the law.

GONDA: I'm sure you are aware that there are quite a few army personnel who are going to contest in the next elections on a Zanu-PF ticket. How does the law interpret civil servants who break their code of neutrality?

MTETWA: You've seen how unevenly that law has been applied - if you get someone who's not politically connected to Zanu-PF standing as a civil servant, they immediately lose their job but you have serving police and army persons going out to participate in elections without resigning and nobody challenges that. And the courts are not very quick to stop that unless of course Jealousy Mawarire runs to court to say I have issues with this and the Constitutional Court quickly convenes.

GONDA: Can you remember how many perpetrators of political violence have actually been brought to book?

MTETWA: I wouldn't have the figures offhand frankly but very, very few perpetrators of political violence have been brought to book, even those that are very well known. But I don't have the figures with me.

GONDA: So is the police force just incompetent or they just can't find these perpetrators?

MTETWA: There are many good men and women in the police force but the police force works on a command structure and however much the police might want to do certain things if those who are in charge of them do not want those things done they are unable to do so.

GONDA: How has it been like, Beatrice, to do your kind of work in this environment?

MTETWA: It's so difficult. Sometimes the lines are blurred, you really don't know what the law is and how you are expected to behave because the rules change depending on who is involved. And it's been going on for so long that the abnormal has become normal. Sometimes you don't even realize that hey this is not supposed to happen because it happens with such regularity that you even think it is a normal thing to do.

GONDA: So how do you respond to attacks against you in the state-controlled media and especially by Zanu-PF Politburo member Jonathan Moyo who says you are only doing this for the money, for the fame and that you are being used by Western countries?

MTETWA: It would be great if somebody was paying me huge amounts of money for what I do but if I told you how many cases I have done for which I have not been paid you'd be extremely surprised. I have been impoverished by the kind of work I do because if I had told myself that I'll just do corporate work I definitely would have been able to charge for that but unfortunately if you go and represent some activist who has no money, who is going to pay you?

The attacks are expected but for me I really don't mind them. What it means for me is that what I'm doing is getting noticed and it's making a difference. You wouldn't attack somebody if you didn't think that what they are doing is having an impact. So I always cut out those stories where I get attacked and I frame them and I call them my Zanu-PF awards because that's how I look at them.

And the attacks do get ugly. When I was arrested, the sexism, the xenophobia that came out - I'm supposed to practice law as a muroora - it's like wow how do I practice law while I'm behaving like a good muroora? That is just so sexist it's unbelievable and you can see that nobody even looks at the gender aspects of it, nobody would ever write something like that about a man. It's sexist, it's xenophobic but that's what we expect of them.

GONDA: There were also some reports in the state media implying that you could face deportation. Are you worried about that?

MTETWA: Violet if I really stayed all night worrying about everything that is being plotted against me, I wouldn't be able to do my work. You know I'll just take whichever comes my way as and when it comes; my focus is my work.

GONDA: Some observers say it would appear that human rights defenders are being tied up in endless trials defending themselves. Would you agree?

MTETWA: Well it's certainly part of the strategy. If you look at how many human rights defenders have been arrested in the last couple of months you'll see that ZimRights personnel are being prosecuted in court right now so if they had any advocacy work to do around elections they can't be doing that because they are tied up in trials and the same with lawyers. Basically lawyers are being tied up with trials in order to ensure that they don't represent their clients and they don't concentrate on their work. You look at some of the MDC members who are part of the Glen View 29, some of whom have been exonerated even by the State witnesses but they are still in court to make sure that they are tied up in trials that are endless. So yes it is part of the strategy to direct all of our attention from doing our core business to defending ourselves personally in the courts.

GONDA: I know we can't discuss your trial, your case right now but when do you think it will be finalized?

MTETWA: The trial resumed on the 29th of June - a Saturday - I'm being tried on a Saturdays I don't know why. We are still cross examining the first witness.

GONDA: How united is the pro-democracy movement as observers say there appears to be a lot jostling for power and fighting for donor funding in the civil society. Is this a correct observation?

MTETWA: There has been infiltration of some of the civil society formations but also people shouldn't forget the fact that most of the NGOs are competitors in a lot of respects and therefore there's bound to be tension here and there if one NGO is seen to be behaving as if it is a super-NGO or has more funding than the others. So that aspect of competition will also come in from time to time.

I also think that once there was the Government of National Unity, there are some NGOs that were seen as extensions of the MDC and therefore have not been as vocal in speaking against the MDC when it became part of government as they were before it became part of government. So that sort of neutralized some of the NGOs to an extent where if you say something against the MDC you are seen as being Zanu-PF or you know how everybody gets labeled in Zimbabwe. You are either for us or against us which, really, ought not to be the case because civil society ought to be there to deal with issues of concern right across the board and they shouldn't be seen as part of any political formation.

GONDA: What role has the donor community played in this?

MTETWA: Well the donor community also has had a role to play in that there are some who feel very strongly that the MDC hasn't performed too well in the inclusive government, there are some who desperately want to re-engage with Zanu-PF. So all of those different contestations have filtered down to civil society and you can see that there's influence on the ground on what might be actually going on.

GONDA: And a final word?

MTETWA: I just hope Zimbabwe will have free, fair and peaceful elections and that human rights defenders will be able to do their bit without being harassed.

GONDA: Thank you very much Beatrice.

MTETWA: Alright.

To contact this reporter email violet@swradioafrica.com or follow on Twitter