Courts must be independent—Mtetwa

IN the last few months, decorated human rights lawyer Beatrice Mtetwa—renowned around the world for battling injustice—has found herself under siege from the government. A magistrate’s court barred her from representing her client Hopewell Chin’ono in August.  The police also tried to intimidate her by camping at her offices before blocking her entry into the court premises. She has endured beatings, arrests and detention, but still soldiers on. Mtetwa (BM) told TheNewsHawks’ Bridget Mananavire (BFM) that she remains as determined as ever to do her job and to represent whomsoever she wants. Below are excerpts of the interview:

BFM: How would you define your relationship with the state, especially now that you seem to be a target?

BM: This is not the first time that the state has targeted me for work that I do…I have been beaten up before; I have been harassed before; I have been arrested and taken to Chikurubi before. So as and when I do cases that irritate the administration, I do get harassed. So it’s something I’ve come to live with; something that I expect from time to time and something that goes with the type of work that I do. You will see that I’m probably not the only one who gets harassed. There are other lawyers who are currently arrested, facing criminal charges, charges that are related to their work. So, I’m not the only one. It’s basically a problem for most human rights defenders, because we’ve seen even activists who are being harassed, who’ve been abducted, who have been tortured.

So I look at myself as being a little better off that at least I have not been jailed, although the attempts to stop me doing my job clearly are intended to say to me, ‘we can even affect your income streams’. I have staff that need to be paid and overheads to meet, and if I cannot do my job because some magistrate thinks he has got the power to stop me, it does affect me. But does it really change how I do my work? Absolutely not. It’s not going to change me doing my work in any way. I’ll continue action for whoever wants me to work for them. I’ll continue doing whichever case I think falls within the kind of cases where I think my intervention will make a difference. In short, I simply will not be intimidated. 

What has come as a surprise for me is that this administration is now resorting to the same tactics that the (Robert) Mugabe administration resorted to. And what has surprised me is that when some of the people in power were being harassed by Grace Mugabe and others in the Mugabe administration, we are the lawyers that came to represent their interests. If you look at (Victor) Matemadanda and you listen to what he is saying, and yet, actually during his time of need, when it was obvious that he was targeted, we were the ones who came to his rescue. We spent nights at (police) Law and Order section ensuring his safety. We prevented his being taken to Gokwe at night, where anything could have happened to him. So, what for me surprises me is that some of these guys have such short, short, short memories, and they are now doing exactly what was done to them.

BM:  So, like you said earlier, other lawyers have also been targeted. What do you see as the role of lawyers in the current Zimbabwean situation?

BFM: Lawyers, particularly the human rights lawyers, help in exposing what’s happening. Because when you go to court and you have a lawyer everything gets put on record. And, of course, with the high-profile cases, the media will be there. So, you find that everything that happens is put to the public domain and is articulated in a way where the world will know what’s going on. And, of course, the regime does not like that.

This is why they call us names, or they try to harass us, etcetera, but the role of lawyers is to really try and ensure that we live by the dictates of the Constitution.

So this irritates the regime, because they’re thinking if these lawyers were not there, we would get away with abductions because the minute someone is abducted, a lawyer runs into court to say produce the person and they are thinking if the lawyer was not there we would successfully abduct and torture people and nothing would happen. So, we are an irritant to the administration.

BFM: Moving on to the Hopewell Chin’ono case. How was it like, fighting for him, defending him like that?

BM: The Hopewell case, you can see that it’s not just the prosecution. It’s become rather personal if you know that Hopewell went out of his way to produce documentary proof of the involvement of persons who are very close to the first family on some of the Covid procurement issues, and his arrest was clearly connected to the fact that he had targeted very powerful people in his exposés and clearly that did not go down well with those who were affected.

The fact that he was able to produce document after document and each time they would give a statement saying x, y, z he would be able to counter it and then they didn’t know how much more he had, so the only way to silence him was to get him out of  circulation; throw him in jail and get those who have the power to decide on things like bail, and not give him bail for quite some time. Because there was absolutely no basis of him not being given bail in the first instance, because if you look at the tweets they were relying on, you know, there is nowhere he incites people to go out in the street and be violent. So, this whole incitement to commit public violence was just meant to deliberately incite the magistrates into not giving him bail. Secondly, he wasn’t the organiser of the intended 31st July march. All he did was to report that (Jacob) Ngarivhume and others have come together and called for this: that let’s go out and protest the looting.

There was no suggestion that he was one of the organisers, there is no suggestion in the tweets that they are relying on that he advocated violence. And, of course, we know that there was no violence. And when we questioned the policemen to point out where exactly are you finding this theme of violence in the tweets, he admitted that there was nothing, but the magistrate was happy to disregard the evidence by the policemen in order to justify the conclusion he had reached that he was not going to give him bail. And this is one thing I want to highlight in cases like Hopewell, (Job) Sikhalas, Ngarivhumes, a whole lot of the people who have been arrested for alleged incitement to commit public violence.

If you notice, all of them have been taken to the anti-corruption court. All of them.

You look at the Joana Mamombe (case), you look at Ngarivhume, Sikhala, Hopewell, all of their cases had nothing to do with anti-corruption. But if you go to the courts, you will find that they all have anti-corruption court numbers, and you will notice that they appeared before the so-called magistrates in the anti-corruption court. And it’s because there is clear abuse of the legal system and, in particular, of the so-called anti-corruption court. The anti-corruption court is no longer being used as an anti-corruption court. It is a court that is being used to deal with perceived opponents and because they trust those magistrates.

You can go to the courts to check it out yourself, you do not get bail before those magistrates unless the state concedes and when the state concedes bail, those magistrates who are not bound by state concession do not question why. I will give you two cases. If you look at Prisca Mupfumira, she was in court for months trying to get bail in custody. And she was refused bail. Then you look at (former Health minister) Obadiah Moyo, he walked to court with cash.

He even knew how much he would be asked to pay and he had conceded by the state. Here are two cabinet ministers both facing corruption charges. Both of them were in positions where we are being told ‘we are dealing with corruption at the highest possible level’, yet you have the two treated so differently and you ask yourself an independent court sitting to hear an application for bail would have said: ‘Excuse me, Mr Prosecutor, why are you conceding bail on this one when you opposed it on Mupfumira? She ended up getting bail in the High Court after many weeks of trial. Why is it like that?’ Surely, once the magistrates deem corruption cases to be so serious as not to give bail, you expect them to inquire into why a particular case is being dealt with differently. You can see that the law is not being applied evenly by everyone involved in the so-called anti-corruption court.

What justification does the prosecutor have in conceding bail in this one, and vigorously opposing it in the other one? So, you can see that the prosecutors, although they’re supposed to be independent, they’re not playing any independent role. They are playing politics, and this is why you also have a small coterie of prosecutors, some of them based unlawfully in the President’s Office. The separation of powers requires that the President’s Office should have nothing to do with anything to do with the judiciary. Because once you’re housed in the President’s Office as a prosecutor, it means you report to the President and that clearly is in violation of the separation of powers principle. 

So, you can see that the anti-corruption courts are no longer there to deal with corruption cases. They’re now there to deal with perceived opponents of the administration, which for me as a lawyer is extremely sad, because when my rights as an individual are violated, my last line of defence ought to be the courts, which are supposed to be independent, to be impartial, to dispense the law without fear or favour, and not to get themselves involved in partisan disputes. But you can see that the anti-corruption courts players on both sides—prosecution, bench—are so immersed in politics, that the courts are being abused for the harassment of perceived political opponents.

BFM: Are all the prosecutors working in the anti-corruption court from the anti-corruption prosecution unit in the President’s Office? 

BM: There are some who are not, but they take instructions from the ones who are at the anti-corruption prosecution unit in the President’s Office. So once the case is in the ACC (anti-corruption court), even if it’s a regular prosecutor who goes to court, they get their instructions from the anti-corruption unit, which is regrettable, because clearly it takes away the independence of the Prosecutor-General. Which means Mr (Kumbirai) Hodzi is just there warming his seat and enjoying benefits without having the power to really control what his department is supposed to do.

BFM: As lawyers, where do you draw the line between professionalism, activism, and advocacy? Where is that line and is there a line? The same question has been posed to journalists.

BM: I think a lot of people fail to understand that when a journalist or a lawyer you still remain having exactly the same rights as everyone else. The fact that I’m a lawyer does not mean I cannot actually comment as a citizen on what is going on. And if you look at the UN basic principles on the role of lawyers, principle 23, it specifically states that lawyers have the same rights as everyone else. They are entitled to comment about the state of affairs in the communities in which they operate.

They are entitled to comment on any infractions of the law; they are entitled to comment on how the justice system might be manipulated. And that their being lawyers does not take away those rights. And the same applies with journalists. Journalists are entitled in terms of journalistic principles to comment on a story. There’s no law that says the journalists must just put out the facts and not comment. They are entitled in terms of the very same journalistic rules and principles to comment on what’s going on around them and even on the story. But a lot of people actually think that, if you are a journalist or a lawyer, you have no right to comment on what’s going on or to comment on the story. 

So, I do not believe necessarily that lawyers or journalists should then be called activists as opposed to lawyers or journalists because they have exercised their right to comment. There’s a lot of misunderstanding of what the sub judice rule means, both in the legal fraternity and even in the journalistic world. If you are not commenting on the actual case, and the merits and demerits while it is pending, there is absolutely nothing wrong in saying, ‘oh this is an abuse of court process and the legal system’. If you see that it is an abuse, if a journalist is arrested because he has said ‘investigate corruption and let’s march against the corrupt looters’, why should they get arrested? And why shouldn’t a lawyer say, ‘well, this ought not to have gone to court anyway’. I was reading a newspaper this morning about cases that were in court yesterday.

The lawyers were saying ‘we want trial dates or to be removed from remand, because we were told that this case, if they didn’t have trial date today, we will be taken off remand’. And the magistrate—and it’s not the first time he has done that—goes into performance of saying ‘the (Zimbabwe) Anti-Corruption Commission (Zacc) is failing in its duties. They just arrest people before investigating and now they’re not bringing people to trial’. This is the same magistrate when he was told that ‘there’s no case, you should put these people on remand, or you should give them bail and that if they find the case, they can always summon the person’. It’s the same magistrate who said ‘no, I’m putting you on remand and I am refusing you bail’.

A couple of months down the line, that very same magistrate is now questioning why this person was brought on remand. But that was questioned, on the very first day the person came in and the very same magistrate completely became blind to the fact that no case was disclosed by the facts that were before him. And despite those comments, he still retained them on remand. So, you ask yourself: Where is the even-handedness because our law has always been premised on the courts leaning in favour of the individual? But we are constantly seeing the goalposts being, not just shifted, removed altogether. The magistrates are like an extension of the prosecution. They no longer view accused persons as innocent until proven guilty. They view them as guilty until the state fails to prosecute them. 

Basically, that really is the bottom line. So, their anti-corruption courts are there to harass activists, human rights defenders, and not to deal with corruption. This is why we’ve hardly had any prosecutions of persons who are allegedly corrupt, even two years after some of them were arrested. If you look at the spate of arrests soon after the coup, who has been persecuted from that lot? Very few.

BFM: Do you ever feel like some of the things that are done to you, for example the police trying to block you from entering the courts and you being targeted for arrest or the state trying to stop you from working, are done because you are a woman? Or is it because of your work and determination?

BM: Well, it is a combination of issues. Firstly, they are irritated that a woman who was not born in Zimbabwe does the work that I do. There is that irritation that ‘who the hell is she to come here and do that?’ That’s an irritation for them. And, of course, secondly, there is the thinking that if they put me down as a person, I will be so affected that I will stop doing the work that I do.

I mean, if I take out some of the articles that have been written by me, some of the comments by the likes of (George) Charamba, the five pages I once got from The Patriot, where they go physical and personal, ‘this fat woman, this ugly woman, she’s like this, she’s of loose morals’. They throw everything because they think I will be discouraged by that. But hey, I know who I am. And if I don’t look the way someone wants me to look, that’s their problem. I’m okay with what God gave me, so if you go personal on me, you’re completely wasting your time because I know who I am. I know what I stand for and I am not going to be moved by name-calling. I just tell myself that it reflects more on you and I don’t care about that.

But if you are criticising my work, it might affect me, but it would affect me positively because I do look at what is constructive in the criticism that would have been thrown my way. If it’s substantive constructive criticism, I’m grateful for it. I don’t care about the fact that you might have put it in a way that is meant to put me down, but I look at it and consider it and it will make me a better lawyer in my next case. So, I don’t really mind about that, it goes with the territory. If you do work in the public domain, you will get criticised.  And if it is justified constructive criticism, take it on board, learn from it and do things better in future.

Especially with online media now and the comments that come with it. I mean, if you read some of those comments and you know that they are from the varakashi (government social media trolls), it’s just people who insult and then you can get colleagues who will join, I mean there are a number of lawyers who will go on social media and say, ‘Oh, this case was not done properly’, and they’ve never done a single big case, they don’t know what the facts are. They don’t know what happened in court.

They’re just relying on how the thing is reported, you will be extremely surprised. And if you say, ‘oh, do you know the facts?’, they have absolutely no clue what the facts are. There are also the aspects that some lawyers actually hate the fact that, you know, some lawyers get certain cases that are in the public domain, and they never get those cases that end up in the public domain. So, there are a whole lot of reasons why people would just go for you. 

BFM: Let’s look at the case in which you were barred from representing Chin’ono. Where is that case now?

BM: It had gotten to a point where I couldn’t visit any of my clients in prison because, according to them, I have been barred form practising. You can see that this was a deliberate attempt to cripple my professional life. So, I have instituted review proceedings and Mr (Ngoni) Nduna (magistrate) has not opposed those proceedings but Mr (Whisper) Mabhaudhi (prosecutor) has opposed them so the matter will have to be argued in open court.