TAONA DENHERE
MAJOR-GENERAL Charles J. Dunlap in his academic piece titled “Lawfare Today: A Perspective” opined that: “As I say, lawfare is much like a tool or weapon that can be used properly in accordance with the higher virtues of the rule of law — or not. It all depends on who is wielding it, how they do it, and why”.
Over the last three years the term lawfare has been increasingly invoked and loosely thrown around in the legal and political discourse of Zimbabwe.
Thus, it has largely assumed a negative connotation in the majority of instances it is invoked and referenced. This is largely due to the manner in which the law and judiciary have been instrumentalised and weaponised against pro-democratic forces, civil society activists and opposition movements in Zimbabwe. The law is increasingly deployed as a sword by the state and as an instrument of oppression, coercion and control on citizens. However, lawfare can also be a force for good, that is citizens and pro-democratic forces can also deploy the litigious methods of lawfare as a form of an administrative-law review mechanism, where citizens demand the state to uphold the rights of the citizens and honour its constitutional obligations. That is, the law being instrumentalised and deployed as a shield to protect the citizens and to push back against the extralegal and extra-constitutional excesses of the state.
Accordingly, the focus of this opinion piece will be centred on deconstructing lawfare as an instrument of political repression and consolidating power within the authoritarian ecosystem of Zimbabwe. Thus, I will be spotlighting the manner in which the increasingly paranoid and insecure Zanu PF government has excessively and extra-legally criminalised pro-democratic forces and civil society activists and stifled dissent and free speech.
Therefore, I shall define what lawfare is and unpack two distinct types of doctrines of lawfare. That is offensive lawfare and defensive lawfare.
However, I shall primarily focus on the doctrine of offensive lawfare and attempt to unpack the way in which offensive lawfare has been viciously deployed by the state as a repressive instrument for authoritarian consolidation and for stifling political and civic activism. Thus, I will be using the recent arrests and pre-trial detentions of Job Sikhala, Godfrey Sithole, Obert Masaraure and Robson Chere as the case studies. I believe the doctrine of defensive lawfare will also need its own different opinion piece, which will be sequentiel to this opinion piece.
What is lawfare?
In simple terms, lawfare means to deploy law as a mechanism for pursuing political ends. However, in terms of juristocracy, law can become a double-edged sword, that is it can be deployed as both as a sword or shield. Therefore, lawfare can be a force for good or a force for bad. Lawfare as a force for good can be involved in the adjudication of contentious and political issues that promote the rule of law and constitutionalism through judicial
litigating by both the litigants and judges. Accordingly, the law will be deployed as a shield and act as a checks-and-balances mechanism against the state, the powerful and the government in favour of the ordinary citizens and the less powerful.
This can be categorised as the defensive lawfare, whereby law is instrumentalised as a socio-politico legal construct that acts as a protective shield in defence of constitutional rights, civil liberties and human rights for the ordinary citizens. Consequently, defensive lawfare is undergirded by an activist judiciary and activist lawyering which act as a watchdog against rule by law and capture of judiciary by the executive and the interests of the powerful. This form of defensive lawfare was well-articulated and intellectually captured by Julian Brown in his scholarly work titled “South Africa’s Insurgent Citizens: On Dissent and the Possibility of Politics”, in which he argues, inter alia, that “a new kind of politics can be seen on the streets and in the courtrooms of the country. This politics is made by a new kind of citizen – one that is neither respectful nor passive, but instead insurgent”. Moreover, the Zimbabwe Lawyers for Human Rights (ZLHR) through its relentless litigious work in defending pro democratic forces, civil society activists and human rights defenders, provides a good and practical example of defensive lawfare.
However, on the flip side of it , there is offensive lawfare where the law and judiciary are instrumentalised and weaponised as an instrument for undermining and eroding the constitutional rights, civil liberties and human rights of ordinary citizens. Some of the features of offensive lawfare is that it is undergirded by the rule by law or the rule of big men. This is a common practice in both competitive authoritarian regimes and hegemonic regimes, where the judiciary becomes involved in state-sanctioned extralegal measures like criminalisation of pro-democratic forces, and systemic and excessive use of punitive pre-trial detentions of pro-democratic forces in clear violation of the constitutional requirements of granting bail .
Therefore, the courts will inevitably become theatres of political contestation whereby the state will attempt to usurp the powers of the judiciary in order to achieve its authoritarian objectives.
Suffice to say in both instances of defensive lawfare and offensive lawfare, the judiciary will ultimately be inextricably encroaching into the political arena. Therefore, the courts will be transformed into a forum of juristocracy and thereby affect the significance of politics and vibrancy of civil society. This is where these two doctrinal forms of lawfare intersect.
Thus, the offensive lawfare is then experienced when government officials and senior politicians use the courts and the judiciary as a platform for persecuting, criminalising and delegitimising pro-democratic forces, civil society activists and their political foes. However, defensive lawfare immediately kicks in when civil society, human rights lawyers and pro-democratic forces push back and fight against the state authoritarian shenanigans of criminalising and delegitimising opposition politics and civil society engagements and activities. Consequently, lawfare will inevitably spawn what is called the judicialisation of politics and politicisation of the judiciary.
State offensive lawfare at play
Historically, the Zimbabwean political and legal landscape is littered with a plethora of incidents where the Zanu PF government has ruthlessly deployed the doctrine of offensive lawfare against its real and perceived political arch nemesis. Thus, it dates back to the genocidal and ethnocidal period of Gukurahundi when the likes of the late Dumiso Dabengwa, Sydney Malunga and Lookout Masuku, after they were acquitted of treason in April 1983, subsequently found themselves re-arrested within the grounds of the High Court under the infamous relic of colonial law, the Emergency Powers Act, and further detained without trial for the next three years. Moreover, both the late Morgan Tsvangirai and the late Ndabaningi Sithole — former leaders of the opposition MDC and ZANU Ndonga respectively — were once victims of state-sanctioned offensive lawfare, when they were arraigned on trumped-up charges of committing acts of treason against the then president Robert Mugabe.
Accordingly, this then demands us to centre our attention around the current wave of offensive lawfare of attrition which is being perpetrated against two Citizens’ Coalition for Change (CCC), opposition members of Parliament Job Sikhala and Godfrey Sithole and as well as Amalgamated Rural Teachers’ Union of Zimbabwe (Artuz) key leaders; Obert Masaraure and Robson Chere.
Job Sikhala and Godfrey Sithole were arrested on 14 June 2022 and subsequently jointly charged with incitement to public violence. They were arrested after an orgy of violent clashes between CCC supporters and Zanu PF supporters during a funeral wake of the murdered CCC activist Moreblessing Ali in Nyatsime area. However, as expected, both Sikhala and Sithole were denied bail when they appeared before magistrate Gibson Mandoza, on the frivolous and baseless grounds that they are a threat to public security. Accordingly, after spending another 23 days of pre-trial detention at Chikurubi Maximum Security Prison, they appealed against magistrate Mandoza’s ruling at the High Court. Nonetheless, the Judge Lucy Mungwari unsurprisingly denied them bail on another baseless grounds that the duo will likely disturb public order or undermine public order or security. Notwithstanding, the fact that Sikhala has been unprecedentedly arrested and charged a record 67 times, nevertheless, all the charges were later on either withdrawn against him or he was acquitted and absolved of any wrongdoing.
However, on 12 July, Sikhala was surreptitiously driven out of Chikurubi prison without the knowledge of his lawyers and family, then again to be further charged with obstructing or defeating the course of justice. This latest charge was not based on availability of fresh and incriminating evidence, but rather it was purely based on the same video clip which formed the basis of the earlier charges they pressed against Sikhala. Consequently, Sikhala`s lawyers rightly argued that the state is involved in the criminal shenanigan of splitting the facts. That is, it is attempting to genetically modify other frivolous charges based on the same old video clip they pressed the earlier charges.
Accordingly, we are again witnessing the Zanu PF government opportunistically and ruthlessly weaponising the law against Sikhala and Sithole as a form of extralegally and extra-constitutionally neutralising and emasculating opposition politicians. Thus, both Sikhala and Sithole are likely to be gridlocked within the oppressive, captured and partial criminal justice system of Zimbabwe. The state, incahoots with the judiciary, will be opportunistically shifting legal goalposts through denial of bail and manufacturing of frivolous charges, such that Sikhala and Sithole will remain politically and socially hamstrung and illegally stuck within the vicious circle of persecution by prosecution. Where their legal team and families will continue to be posted from pillar to post by both the compromised and captured magistrates and judges in their relentless quest to seek justice for the duo.
There is a historical precedent to this type of malevolent lawfare by the Zanu PF government, whereby it politically emasculates and decapitates its political opponents through extralegally removing key opposition leaders from the political and electoral space, through the use of extensive and unlawful pre-trial detentions. Thus, between 1983 to 1986 key PF Zapu stalwarts such as Dumiso Dabengwa, Sydney Malunga and Lookout Masuku were detained without trial.This ultimately deprived PF Zapu and Joshua Nkomo of experienced and key political assets during the 1985 general elections. Accordingly, there is a possibility that a similar authoritarian game plan by the Zanu PF regime might be at play, targeting key CCC leadership as the 2023 general election slowly draws closer. This could not be a farfetched assertion, considering the fact that the organising secretary of CCC, Amos Chibaya, was recently arrested and charged on frivolous grounds of convening an unsanctioned meeting in violation of the draconian Maintenance of Peace Act.
Suffice it to say that state-sanctioned offensive lawfare has also extended its tentacles into civil society organisations. Through systematic and calculated targeting of civil society activists and trade unionists by the state. Thus, a good case in point is the latest judicial harassment and judicial persecution of Artuz senior leaders such as Obert Masaraure and Robson Chere. Both Masaraure and Chere were arbitrarily arrested and charged on trumped up allegations of murdering Artuz youth activist Roy Issa. This is notwithstanding the fact that when Issa died after falling off from the 7th floor of Jameson Hotel in June 2016, Masaraure was not present on that fateful day, hence in 2016 he was neither questioned nor investigated by the police. Furthermore, an inquest which was held at Harare magistrates’ courts ruled out any foul play over the death of Issa.
Over the last three years Masaraure and Chere have been on a collision course with the Zanu PF government. This is due to their disciplined militant and radical trade unionism of championing better salaries and working conditions for the rural teachers, which they represent through their Artuz organisation. Therefore, it was through the credible leadership and organising skills of Masaraure and Chere, together with the rest of Artuz, that rural teachers have become bolder, more vociferous and courageous in fighting for their labour rights and better working conditions. This, ultimately, has unsettled the Zanu PF government, hence the law has been instrumentalised and weaponised against the leadership of Artuz.
The manner and circumstances under which Masaraure was arrested and charged clearly raise eyebrows and further expose the complicity of the police and judiciary in aiding and abetting rule by law and judicial authoritarianism. For instance, Masaraure was arrested on 14 June, just a few weeks after he had won the 2022 Front Line Defenders Award for Human Rights Defenders at Risk for Africa. Coupled with the fact that he was arrested just six days before Artuz planned peaceful protests against poor working conditions and poor salaries for the teachers. Chere was subsequently arrested on 5 July. As expected, both Chere and Masaraure were railroaded into a judicial labyrinth of blatant denial of bail and extensive pre-trial detentions.
After Masaraure was given brief respite when the High Court on 29 June awarded him bail on the Issa murder case, he was again re-arrested on 7 July. This time, just like Sikhala, he was being charged with obstructing the course of justice. Therefore, this systematic pattern and the extralegal conveyor belt of arrests, pre-trial detentions, then brief release from remand prison and then rearrested again on other frivolous and baseless grounds, clearly demonstrates a well-drilled and coordinated network of state-driven offensive lawfare. With its ultimate objectives of keeping the costs of challenging the authoritarian excesses and misgovernance of the Zanu PF government very high, thereby preventing organisations such as Artuz and its leaders from primarily concentrating on their civic and trade unionism duties. Since they will be internally focused in fighting court battles, thereby expendenig their resources, energies and time in legal battles rather than in civic and political activism
Conclusion
Lawfare in its offensive form is an essential extralegal toolkit in the hands of a dictatorship. Thus lawfare has been deployed by both colonial dictatorships and post-colonial dictatorship with devastating consequences on the sacrosanct regime of the rule of law, good governance and human rights. Accordingly, in both historical and contemporary periods successive Zanu PF governments have relied and deployed offensive lawfare against both real and perceived political opponents and human rights defenders, as part of its authoritarian consolidation brinkmanship.
However, the current Zanu PF government will continue on its unrestrained quest of instrumentalising and weaponising the judiciary against the pro-democratic forces and human rights defenders as the 2023 general elections draw near. Thus, in an effort to cripple and destabilise the CCC and progressive civil society organisations, we are likely to witness a number of opposition leaders, human rights defenders and civil society activists being extralegally arrested and charged and extraconstitutionally denied bail by the state.
Consequently, the doctrine of offensive lawfare is going to be an invaluable oppressive instrument for the Zanu PF government between now and the 2023 general elections.
