University of Zimbabwe Law Journal

Volume 1, Number 1, July 2018 ISNN 2617-2046 University of Zimbabwe Law Journal ©Faculty of Law, University of Zimbabwe 2018

Published by University of Zimbabwe Publications P.O. Box MP203 Mount Pleasant Harare, Zimbabwe

EDITORIAL BOARD Dr Innocent Maja (Editor-in-Chief) Dr Tarisai Mutangi (Assistant Editor-in-Chief) Dr Rosalie Katsande Dr Elizabeth Rutsate Mr Munyaradzi Gwisai Mr Brian Crozier Mr Nyasha Chishakwe Mr Rodgers Matsikidze Mr Blessing Mushohwe

ADVISORY BOARD Professor Geoff Feltoe Professor Lovemore Madhuku Professor Julie Stewart

You can contact [email protected] to order or subscribe to the journal. • Zimbabwe: US$25 per copy, excluding postage and or courier fees. • Rest of the world: US$30 per copy, excluding postage and or courier fees. • 15% discount available for those who buy 15 copies and above as well as Booksellers. GUIDE FOR CONTRIBUTORS

Each contribution should be emailed to [email protected] or [email protected]

The editors will only accept contributions that comply with the following:

• The submission should be original. • The submission should not have been published elsewhere. However, the Editors may consider republication of an article that has been published elsewhere if the authorisation of the other publisher is provided. If the article has been or will be submitted for publication elsewhere, this must be clearly stated. • Each submission should be written in UK English. • Each article submitted should be accompanied by a brief profile of the author (qualifications and professional or academic status), a brief abstract (250-300 words maximum) and at least four key words. • The University of Zimbabwe Law Journal utilises plagiarism detection software. The contributor should ensure that submissions do not infringe other persons’ intellectual property rights. • Submissions should average between 5 000 and 12 000 words (including footnotes) in length. • The main text should be in 12 point Trebuchet MS with 1.15 spacing and footnotes should be in 10 point Trebuchet MS with 1.15 spacing. • Quotations less than 30 words should be in quotation marks and italicised. Quotations longer than 30 words should be indented and in 11 point Trebuchet MS with 1.15 spacing and should not be placed in quotation marks. • The citation style to be used when referring to Zimbabwean case law and legislation is set out below. • Footnotes should be numbered consecutively. • The editors reserve the right to change manuscripts to make them conform with the house style, to improve accuracy, to eliminate mistakes and ambiguity, and to bring the manuscript in line with the tenets of plain legal language.

The following general style pointers should be followed: Reported Judgements: High Court cases S v Makuvasa 2011 (1) ZLR 330 (H) Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H)

Appeal cases S v Dube 1992 (2) ZLR 65 (S) Minister of Home Affairs v Allan 1986 (1) ZLR 263 (S)

iii iv University of Zimbabwe Law Journal 2018

Unreported Judgements: Trial cases S v Mpa HH-469-14 Mungate v City of Harare & Ors HH-328-16

Appeal cases S v Jones S-154-94 Newlands Farm (Pvt) Ltd v Matanda Bros S-100-91

Legislation: Acts Domestic Violence Act [Chapter 5:16] (The Chapter number is placed in square brackets and is italicised.)

Subsidiary legislation Road Traffic (Safety-belt) Regulations, 1987 (SI 147/1987) (SI is the abbreviation for Statutory Instrument.)

Reference to books and articles Books G. Feltoe, A Guide to the Zimbabwean Law of Delict, Legal Resources Foundation 2018. J Burchell, Principles of Delict (Juta & Co, Cape Town, 1993). I Maja, The Law of Contract in Zimbabwe, Maja Foundation, 2015. J Neethling et al., Law of Delict, (Sixth Edition, Lexis Nexis, Durban, 2010.

Articles Armstrong, A “Consent in Rape Cases in Zimbabwe” in 1986 Vol 4 Zimbabwe Law Review 112 Nyandiya-Bundy, S “Child Sexual Abuse in Zimbabwe” in 1994 Vol 6 No 2 Legal Forum 5. EDITORIAL

The University of Zimbabwe Law Journal is the successor to the Zimbabwe Law Review and is published by the Faculty of Law at the University of Zimbabwe. It carries peer-reviewed articles, book reviews and case notes on any significant legal matters on Zimbabwean and International Law. In the process, the University of Zimbabwe Law Journal intends to contribute towards an indigenous Zimbabwean jurisprudence.

The journal is published twice a year (April and October). Contributions for consideration in the April issue should be sent by 15 February and those to be considered for publication in October should be sent by 15 August each year.

Articles, book reviews and case notes to be considered for publication should conform to the style guide and must be sent to either the Editor in Chief, Dr Innocent Maja, [email protected] or Professor Geoffrey Feltoe [email protected]

The current edition (Volume 1 No. 1) has 10 articles and 5 case notes. It has been published through the generous funding of the University of Zimbabwe through the University of Zimbabwe Publications.

v CONTENTS

EDITORIAL ...... v Foreword ...... viii

ARTICLES The duty of bank confidentiality in South Africa and other jurisdictions such as Zimbabwe: Justifications, judicial limitations and legislative inroads rising from the need to avert crimes ...... 1 BY JESCA GENIUS MACHOKOTO

Child prostitution in Zimbabwe and the tragedy of the ‘victim by choice’ tag: An overview ...... 11 BY BLESSING MUSHOHWE

The right to strike in zimbabwe in the context of the 2013 constitution and international law ...... 35 BY MUNYARADZI GWISAI, CALEB MUCHECHE & RODGERS MATSIKIDZE

A ray of hope for the outlawing of corporal punishment in Zimbabwe: A review of recent developments ...... 76 BY BLESSING MUSHOHWE

Abuse of power and authority: Rape by coercion ...... 92 BY GEOFF FELTOE

Judicial appointment in Zimbabwe: Defining the concept of “fit and proper person”...... 101 BY CHAKA MASHOKO

Limitation of human rights in international law and the Zimbabwean Constitution ...... 117 BY INNOCENT MAJA

Public Service Broadcasting and the risk of state capture: The case of the Zimbabwe Broadcasting Corporation ...... 136 LYNDON NKOMO

vi UZLJ University of Zimbabwe Law Journal vii

Exploring the concepts of minority and minority language in international human rights law ...... 167 BY INNOCENT MAJA

An update on compliance by Zimbabwe with decisions and Judgments of International Human Rights Judicial and Quasi-Judicial Bodies ...... 187 BY TARISAI MUTANGI

CASE NOTES Deterrent sentences for the perpetrators of domestic violence: Case Notes on S v Muchekayawa 2012 (1) Zlr 272 (H) and S v Gudyanga 2015 (1) Zlr 238 (H) ...... 225 BY GEOFF FELTOE

Should provocation be a partial defence to intentional killing of an adulterous spouse? Case Note on the Case of S v Ranchi HH 515-17 ...... 232 BY GEOFF FELTOE

Looking Back to Look Forward Case Note on S v Madondo & Anor 2015 (1) ZLR 807 (H) 239 BY ELIJAH MAKOMO

Constitutionality of the offence of deliberately transmitting HIV: Case Note on the Case of S v Mpofu & Anor CC-5-16 ...... 248 BY GEOFF FELTOE

The Role of the Criminal Law in the Protection of Women Against Gender-Based Violence Case Note on S v Jeri HH-516-17 ...... 258 BY GEOFF FELTOE FOREWORD

The University of Zimbabwe Law Journal is produced by the University of Zimbabwe Faculty of Law. The journal replaces the Zimbabwe Law Review, which has not been published for several years now. The process of rebranding the publication into a law journal is a welcome move and differentiates it from other publications.

The law journal is published bi-annually. The role played by law journals in developing the jurisprudence of our law cannot be over-emphasised. It is important that this publication does not suffer the same fate as the Zimbabwe Law Review.

The journal contains some interesting and thought-provoking articles which make interesting reading. The articles, authored by legal practitioners from the academia and private practice, as well as judicial officers, provide good reference points in various facts of our law, ranging from constitutional and human rights law, corporate law and family law to criminal law. They make in-depth valuable analyses of the law in these branches. The authors properly capture and discuss some important decisions made by the courts in this and other jurisdictions.

I wish to applaud all those who contributed articles to the journal. I also wish to congratulate the University of Zimbabwe, particularly the Faculty of Law, for putting together such quality articles for the benefit of the administration of justice and the teaching of law.

THE HONOURABLE MR JUSTICE LUKE MALABA CHIEF JUSTICE OF ZIMBABWE

11 JULY 2018

viii THE DUTY OF BANK CONFIDENTIALITY IN SOUTH AFRICA AND OTHER JURISDICTIONS SUCH AS ZIMBABWE: JUSTIFICATIONS, JUDICIAL LIMITATIONS AND LEGISLATIVE INROADS RISING FROM THE NEED TO AVERT CRIMES

BY JESCA GENIUS MACHOKOTO1

INTRODUCTION At common law, the bank is under an obligation not to disclose any of its clients’ information but to keep it confidential. Nowadays, the banks are confronted with two conflicting duties: the duty to maintain confidentiality of the customer’s information and the duty to disclose such information when special circumstances arise. Until Prevention of Organised Crime Act (POCA) and Financial Intelligence Act (FICA) many legislative interventions to the duty of confidentiality were characterised as ‘reactive’ because the bank would only disclose information upon receiving a request from higher authority’.2 The importance of the duty of confidentiality is that it has been recognised for centuries and that the courts have analysed the role of the banks and the relationship between a bank and its customer in imposing a qualified duty of confidentiality’.3 For this reason, it would be unthinkable to dismiss the duty of confidentiality in today’s life because of technological innovations. In determining whether the duty is still relevant or not this paper will discuss the historical significance of the duty of confidentiality in enhancing the bank customer relationship; the judiciary recognition in South Africa and other jurisdictions such as Zimbabwe; judiciary limitations imposed on the duty; and legislative inroads arising

1 LLB University of Limpopo; LLM in Commercial and Business Law, Witwatersrand University, South Africa; Member of the Institute of Risk Management, South Africa and Institute of Information Technology Professionals. Email [email protected]. 2 T Walsh ‘The banker’s duty of confidentiality: dead or alive’ 2009- 2012 Edinburgh Student Law Review 1. 3 Roy Elbert Huhs, Jr ‘To disclose or not to disclose customer records’ 1991 Banking Law Journal 30.

1 2 University of Zimbabwe Law Journal 2018 from the need to avert transactional crimes. Finally, I will give possible recommendations that might improve the application of the principle to achieve best practice both in business and banking law.

DUTY OF CONFIDENTIALITY: HISTORICAL SIGNIFICANCE AND THE JUDICIAL RECOGNITION IN SOUTH AFRICA AND OTHER JURISDICTIONS SUCH AS ZIMBABWE As held in Parry Jones v Law Society,4 the historical duty of confidentiality exists not only between an attorney and a client but also between a banker and a customer. The duty of confidentiality is defined as ‘an obligation of a financial institution and of its officers and employees, to protect and withhold information acquired while handling a client’s business.’5 The duty of confidentiality can be traced back from the early English mercantile custom where the wealthy would have their surplus gold and other valuables stored in the Tower of London.6 The key factors for banking were trust, safekeeping and confidential dealings. In Djowharzadeh v City National Bank & Trust Co,7 the court held that the ‘duty has existed traditionally and continues to exist’.8 This means that the duty of confidentiality can be viewed as a historical continuation and, hence, banks must guarantee a high degree of confidentiality in order to do business and attract customers. The banker’s duty of confidentiality begins at the creation of the bank-customer relationship and extends to the time when the contract is terminated or even after death.9 The duty of confidentiality is an implied or tacit term between the bank and customer. This means that the contractual duty is a natural

4 (1969) 1 ch 1. 5 S.Paolo & D Gaalvese ‘The duty of confidentiality of Banks in Switzerland: where it stands and where it goes, recent developments and experience. The Swiss assistance to cooperation with the Italian authorities in investigation of corruption among civil servants in Italy’ 1995 Pace Law Review 329. 6 WG Schulze ‘Depositum, Deposit and deposit- taking Institutions - Birds of the Feather? Not quite (2001) South African Mercantile Law Journal 2001. 7 1982 OK CIV APP 3 646 P.2D 616. 8 646 P.2d 616 (Okla. Ct. App. 1982). 9 M Hapgood (ed) Paget’ Law of banking 13th edition (2002) 158. UZLJ Duty of Bank Confidentiality 3 element of the contract between a bank and a client. In Tournier v National Provincial & Union Bank of England,10 the court held that there was an implied contract not to disclose the client’s information subject to exceptions; hence the bank was under an obligation to maintain the duty of confidentiality. The relationship created between a bank and its customer is an implied agency relationship. In the case of Peterson v Idaho First National Bank,11 the court held that it is a breach of an implied term to disclose a customer’s information. This enables individuals to feel free and secure to give full information to the bank since they trust that it is protected. In South Africa, as in other jurisdictions such as Zimbabwe, the bank has both a contractual and statutory duty to keep their client’s affairs confidential. The agreement forms part of the right to privacy in the Bill of Rights in South Africa. The statutory duty is imposed by section 33(1) of the South Africa Bank Act, which provides a general prohibition on the disclosure of client information. In addition, recently one house of Parliament passed a bill protecting personal information12 which is data-protection legislation describing a law intended to protect individuals from detriment resulting from the processing of information about them.13 In Consultants & Investments v Datasys Ltd,14 Stegmann J held that a bank has an obligation to observe the duty of confidentiality. These cases show that confidentiality in banks is still upheld. This duty of confidentiality was first recognised in Abrahams v Burns,15 where the court accepted the duty of confidentiality and found that the bank will be held liable if it discloses the client’s confidentiality to a third party if done without adequate reason. In First Rand Bank Ltd v Chaucer Publications (Pty) Ltd,16 Judge Traverso concluded: ‘It seems to me that for considerations of public policy the relationship between a

10 (1924) 1 KB 461. 11 367 P.2d 284 (Idaho 1961). 12 Protection of Personal Information Bill 9 of 2009 (POPIA). 13 See Lee A Bygrave ‘An international data protection stock take at 2000 Part 1: regulatory trends’ (2000) 6 Privacy Law & Policy Reporter 129. 14 1988(3) SA 726 WLD. 15 1914 CPD 452. 16 2008(2) SA 592 (CPD). 4 University of Zimbabwe Law Journal 2018 bank and its client must be of a confidential nature’. He further asserted that the bank had a contractual obligation to maintain secrecy and privilege but had no duty to prevent third parties from publishing confidential information about the bank’s client affairs. Similarly, in Cambanis Building Pty Ltd v Gal,17 the court held that a bank was bound by a duty not to disclose any information of its clients. A banker’s duty of secrecy in Zimbabwe is statutory as it is clearly provided under legislation.18 In Standard Chartered Bank Zimbabwe Ltd v Chapuka,19 where the respondent appealed against part of the judgment of the then Labour Relations Tribunal setting aside his dismissal from employment with the appellant and substituting the penalty of “FINAL WRITTEN WARNING” on a conviction of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment, the court held that relationship between Standard Chartered and Chapuka was one based upon trust and confidence. The court dismissed the application with costs.

JUSTIFICATIONS Bank confidentiality is crucial to an individual’s ability to place faith in their bank and financial community generally. Customers would be unlikely to entrust their money and financial affairs to banks if the confidentiality of their dealings could not be secured. In Djowharzadeh v City National Bank & Trust Co,20 the court held that banks are the source of an enormous public trust and have a virtual monopoly on lending money, which is dependent solely on the public’s funds to operate. For this reason, customers expect high standards from their banks, in such a way that if they find out that their private information has been divulged to a third party their trust would be destroyed. Thus a bank must not use its position to compete financially for customers or otherwise act to their customers’ disadvantage.

17 1983 (2) SA 128 (NC). 18 Banking Act [Chapter 24:20] section 76 and the Reserve Bank of Zimbabwe Act [Chapter 22.15] section 60. 19 (361/03) ((361/03) [2005] ZWSC 101 (27 January 2005) 20 Supra note 7. UZLJ Duty of Bank Confidentiality 5

Furthermore, the importance of bank confidentiality to the stability of a country‘s banking system, requires that access to bank information by authorities should not be unfettered.21 Unauthorised disclosure of the customer’s information could jeopardise the financial welfare of the clients of the bank, unless justified by law (e.g. under the Companies Act a bank may disclose information about a business in liquidation to a liquidator). For instance, if the customer is running a business the disclosure could have a negative effect on business and lead to the customer suffering loss. For this reason, the bank will be entitled to pay compensation to the customer. The duty of confidentiality is also important in contemporary life as it forms part of the right to privacy. South Africa and other jurisdictions such as Zimbabwe have statutory acknowledgements to the duty of confidentiality which prohibit disclosure of a client’s information.22 Moreover, in Malaysia, section 97 of the Banking and Financial Institutions Act 1989 (BAFIA) provides the general prohibition on disclosure of confidential information, followed by exceptions.23 For this reason banks must comply with personal information held about their customers. Interference with someone’s private life leads to breach of the mentioned statutes and may have legal consequences. The disclosure of the customer’s information to a wrong person could cause harm to the customer. In Tournier v. National Provincial & Union Bank of England,24 the bank breached the customer’s confidentiality by disclosing to Tournier’s employers that he had defaulted on his obligation to the bank. For this reason, he was dismissed from his job and successfully sued for losses. Thus, loss of customer confidence in their bank will likely lead to their withdrawal as a client and could lead to bank failure. This would globally affect the economy since the circulation of money through banks leads to an efficient

21 OECD Improving Access to Bank Information for Tax Purposes (2000) 19. 22 Section 7 of the POPIA and s 33 of the Constitution prohibit unauthorised disclosure of a client’s information. 23 S Jawahitha ‘Banking Confidentiality: A comparative analysis of the Malaysian banking statutes’ (2002) Arab Law Quarterly 255. 24 24Supra note 10. 6 University of Zimbabwe Law Journal 2018 banking system. Moreover, it is most likely that the disclosure of financial information may lead to crimes such as identity theft or fraud due to the sensitive nature of this information. Bank confidentiality is thus a practical necessity as bankers often have access to a good deal of information about their customer’s business, which each customer would have reason to conceal from their commercial competitors.25

JUDICIAL LIMITATIONS The Court of Appeal in Tournier v National Provincial and Union Bank of England (supra) held that the duty of confidentiality is not absolute, as Blankes LJ admitted that it is not possible to frame any exhaustive definition of the duty, but the most that can be done is to classify the qualification and indicate its limits e.g. where disclosure is under the compulsion of law; where the interests of the bank require disclosure; where the disclosure is made by the express or implied consent of the customer; and where the disclosure is in the interests of the public. Thus the court in the case of Densam (Pty) Ltd v Cywilnat (Pty) Ltd,26 stated that the duty may be breached if it was reasonable and proper for the bank to further its own interests. In this instance, it is clear that the duty of confidentiality becomes limited in its application. From a Zimbabwean perspective, regarding the preservation of secrecy, legislation provides that:27 (1) Except for the purpose of the performance of his functions or when lawfully required to do so by any court or under any enactment, no director, officer, employee or agent of the Bank shall disclose to any person any information relating to the affairs of the Bank or of a customer of the Bank which he has acquired in the course of the performance of his functions. (2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for

25 D Chaikin ‘Adapting the qualifications to the banker’s common law duty of confidentiality to fight transnational crime’ 2011 Sydney Law Review 265-268. 26 (1991) 1 ALL SA 275 (A) (28 SEPTEMBER 1990). 27 Reserve Bank of Zimbabwe Act [Chapter 22.15] section 60. UZLJ Duty of Bank Confidentiality 7

a period not exceeding two years or to both such fine and such imprisonment” In the Australian context, the duty of confidentiality may be breached by both the customer and the bank since they may be compelled by law to disclose information.28 The fact that they are so many statutes which require disclosure of information by banks has led to the erosion of the duty of confidentiality. In the Australian Securities Commission v Zarro,29 he court held the bank’s duty of confidentiality was no reasonable excuse for non-compliance of the law.

LEGISLATIVE INROADS TO NON-DISCLOSURE ARISING FROM THE NEED TO AVERT CRIMES Where the government wants to root out criminal activities undertaken through the bank, then confidentiality becomes irrelevant. On the one hand, the bank is required to disclose the confidential information of a customer if it has been compelled to do so legally. The banker would, therefore, be justified in disclosing information to meet statutory requirements. Section 8(2) of the European Convention on human rights, authorises disclosure of information if the disclosure in accordance with the law. Section 330 of the Prevention of Organised Crime Act imposes an express duty on the banks as regulated bodies to report any actual knowledge or suspicion or in circumstances where there are reasonable grounds for knowing or suspecting that someone, e.g. a customer of a bank, is involved in money laundering. FICA is the administrative legislation that gives effect to the aim of POCA. This section provides an obvious challenge to the duty of confidentiality owed by a bank to its customers. By complying with the POCA, the bank discloses the information to a limited number of relevant authorities only, and the disclosure is limited to that detail which is suspicious. This means that if there is no suspicion, the confidential

28 P. Latimmer ‘Bank secrecy and confidentiality law in practice in Australia and their impact on the control of economic crime’ 1995- 1996 Dick Journal of International Law 551. 29 1992 FCA 159; 10 ACLC 553. 8 University of Zimbabwe Law Journal 2018 information can still be protected due to its limited disclosure; this was a point which was made by the court of appeal in Franco v Mirror Group Newspaper.30 When public interest dictates that law and order should be maintained then confidentiality becomes secondary. The public duty to disclose information applies where there is a danger to the state in that the public needs protection against crime. In balancing the public interest of confidentiality and disclosure, the bank must take extra care in deciding whether the disclosure is justified. Section 28 of the National Prosecuting Authority Act 32 of 1998 (NPAA) states that, ‘if the investing director has a reason to suspect that a specified offence has been or is committed or that an attempt has been made to commit an offence he or she may hold an inquiry’. In re Price Waterhouse v BCCI Holdings (Luxembourg) SA,31 it was held a bank’s duty of confidentiality has been singled out for special protection in cases of sufficient gravity of disclosure, particularly where it was limited, in order for it to protected. A person relying on the exception of public interest can simply argue it is in the interest of the public. However, in the case of A & Ors v Hayden,32 the court made it clear that the person who owes a duty to maintain confidentiality will not be allowed to escape from his obligation simply because that he alleges that a crime has been committed and that it is in the interest of the public. Therefore, one can conclude that the inception of s 28 of the NPAA overrides the judgement in this case because the director is given powers to investigate where there is a suspicion.

RECOMMENDATIONS Secrecy I suggest that confidentiality needs to be upheld for every customer so as to ensure an effective business practice in banks. Confidentiality is built on the integrity of the business, as, without confidentiality there will be no business protection. A business without confidentiality is likely to be exposed to harmful actions.

30 CA(1984) 1 WLR 892. 31 (1992) BCLC. 32 1984 156 CLR 532 Gibbs CJ at 546-547. UZLJ Duty of Bank Confidentiality 9

Law (explicit legislation remains the basis for bank secrecy) The rules of confidentiality should be included in banking law to protect people against bank disclosure without express consent For instance; s 47 of the Singapore Banking Act provides focused, limited and practical circumstances allowing the disclosure of customer information. The high court of Singapore in Susilawati v America Express Bank,33 held that statutory confidentiality replaced the common law principle in Tournier’s case. In Switzerland, a breach of the duty of confidentiality is a criminal offence which has ensured that client confidentiality has remained intact and the strength of the Swiss banking system has been enhanced. Exceptional circumstances where disclosure of confidentiality becomes relevant Where the duty of confidentiality exists to balance competing interests between individuals and the public at large, then confidentiality becomes relevant. This means that where justice is involved, confidentiality should be upheld. In certain circumstances, a bank may be compelled by law to disclose information so as to maintain justice in a country or to protect society. Such a case, for example, exists if the disclosure seeks to protect the country against crimes such as money laundering and drug dealing. Since the duty to disclose under public interest is broadly interpreted, I suggest that it should be given a narrow interpretation to include only those aspects where there is suspected criminal activity.

Business best practise In practice, every contract normally expressly states that the parties must keep all their communication confidential and under no circumstance shall relevant information be divulged to a third party. Confidentiality should be a day-to-day business practise in order to maintain or strengthen the bank-customer relationship. The banks must maintain the integrity of the customers so as to ensure effective business practice.

33 2008 1 SLR 237. 10 University of Zimbabwe Law Journal 2018

CONCLUSION In the final analysis, one can conclude that based on the above reasoning, the bank’s duty of confidentiality is still relevant although contemporary business regulations require disclosure to provide information in the interest of better regulation for the benefit of all stakeholders in the economy.34 It can be argued that the duty could be protected through human rights law. POCA and FICA allow disclosure to be granted only to the extent that they appear necessary for the purposes of the Act and provided that the interests of justice and public order prevail over the interest to protect the confidentiality of the information. For instance, information relating to third parties is not to be provided unless absolutely necessary to the prosecution of the case and justified by importance of the investigation. The duty of confidentiality has remained relevant and the respectability and strength of the right to privacy in different legislations has been enhanced in the Zimbabwean banking system

34 Supra note 3. CHILD PROSTITUTION IN ZIMBABWE AND THE TRAGEDY OF THE ‘VICTIM BY CHOICE’ TAG: AN OVERVIEW

BY BLESSING MUSHOHWE1

INTRODUCTION Child prostitution is one of the most sinister and horrific acts that children may endure. It presents serious violations of human and child rights on children who are among the most vulnerable and impressionable in society.2 According to the Preamble of the African Charter on the Rights and Welfare of Children (hereafter referred to as the ACRWC), the child, due to needs of his/her physical, mental and moral development requires particular care with regard to health, physical, mental, moral and social development and requires legal protection in conditions of freedom, dignity and security.3 This emphasizes the vulnerability of children and their need for adult protection at the highest level. Sadly, the world over, adults are abusing and violating children’s rights from all angles in the practice of child prostitution and in so doing, according to Hesselink-Louw, Bezuidenhout & Boniface, destroying the lives of thousands of children.4 As if the destruction of young lives alone is not enough, the tragedy of child prostitution is that nobody seems to care. Among all the sexual offences that are committed on children, globally child prostitution receives the least attention from policy makers, law and order authorities, NGOs in the child rights sector and even more tragic, the society where the

1 LLB (Hons), LLM. Chairperson, Private Law Department, Faculty of Law, University of Zimbabwe. 2 J Surujlal & M Dhurup ‘Legalising Sex Workers During the 2010 FIFA Soccer World Cup in South Africa’ (2009), African Journal for Physical, Health Education, Recreation and Dance (Supplement), 87. 3 Entered into force on 29 Nov 1999. Ratified by Zimbabwe on the 19th of January 1995. 4 AM Hesselink-Louw, C Bezuidenhout & R Pretorius ‘Child Sex Work: The Nature of, Factors Contributing to, and Consequences of Child Prostitution’, (2002), Vol 2, Acta Criminologica 15, 47.

11 12 University of Zimbabwe Law Journal 2018 children live. Society generally abhors prostitution as an immoral choice that one makes and in the same light, views child prostitution with the same lens. As soon as society attaches the description “prostitute” to a person, it instinctively blinds itself to the person’s age even if it is a very young girl involved in the practice. All society sees is the immorality and delinquency inherent in the act and therefore instinctively becomes unwilling to be associated. According to Kittling, society instantly forget that these are the same ‘girls who once played with Barbies and held tight to teddy bears, but now find themselves in cars, performing sexual acts on men old enough to be their fathers’.5 As such, instead of seeing the children as victims of sexual abuse and exploitation mainly a result of their poverty, in Zimbabwe and many other countries across the globe, these children are generally seen as “willing participants’ and therefore ‘victims by choice’. The result is that child prostitutes are left to hang. Laws and programmes to combat the practice and to assist the child prostitutes as victims of sexual abuse and exploitation are very minimal. At the same time, the child prostitutes, being children as they are, continue to see no other alternative than to continue in their trade, thereby creating a vicious cycle of child prostitution. This article begins by defining child prostitution and explores its causes globally and in Zimbabwe especially. The unfortunate but generally accepted misconception that child prostitutes are ‘willing participants’ and therefore ‘victims by choice’ is explored next in detail with a view to highlighting the tragedy of such a conception in the protection of children from sexual abuse and exploitation by relevant national institutions, private organizations and society at large. In order to contextualise the destruction of young lives inherent in child prostitution, a brief analysis is conducted of the human and child rights violations present in child prostitution. The international legal framework that deals with child prostitution is explored next, followed by an exploration of Zimbabwe’s domestic laws as they relate to protection of children from

5 N Kittling ‘God Bless the Child: The United States’ Response to Domestic Juvenile Prostitution’, (2005-2006), Vol 6, Nevada Law Journal, 926. UZLJ Child Prostitution in Zimbabwe 13 prostitution. This serves to assess adequacy and effectiveness in implementation of such legal instruments in the protection of such affected or would-be affected children. Finally, suggestions are made on improvements that can be made in protecting children from child prostitution in Zimbabwe.

1. CHILD PROSTITUTION DEFINED By way of definition in legal theory, child prostitution is survival sex by children below the age of 18 years who offer themselves or are offered for sexual satisfaction of normally adults usually in return for food, money, drugs, protection by gangs, shelter and sometimes and strangely love.6 Kembo & Nhongo define it as the sexual exploitation of a child for remuneration in cash or kind, frequently but not always organized by an intermediary who maybe a parent, family member, procurer or teacher.7 Child prostitution may have a number of synonyms such as children in prostitution or children forced into prostitution or prostituted children among others, but they all more or less refer to the same phenomenon defined above. Child prostitution belongs to the broader class of child sexual abuse where children are forced or enticed or groomed into taking part in sexual activities, whether or not they are fully aware of what is happening, primarily for the sexual stimulation and satisfaction of the perpetrator or client in the case of child prostitution.8 Child sexual abuse in prostitution, which by its nature is a gendered issue affecting girls the most globally and in Zimbabwe in particular, normally involves physical contact during the commission of the sexual act, ranging from genital touching to oral, anal and vaginal penetration with the child for a price.

6 AM Hesselink-Louw, C Bezuidenhout & AE Boniface, ‘South African Law and Child Prostitution: An Overview’, (2004), Vol 2, Stellenbosch Law Review, 354. 7 J Kembo & K Nhongo, ‘The Phenomenom of Child Trafficking in Zimbabwe: A Desk Study Analysis’, (2002), A Report Prepared for Terre Des Hommes Germany as Part of the Zimbabwe Research Project on Child Trafficking, 5. Accessed 28 April 2016 on http:// www.childtrafficking.com/Docs/tdh_germany_2002__the_pheno.pdf. 8 CB Draucker Counseling Survivors of Child Sexual Abuse, (2000) 4. 14 University of Zimbabwe Law Journal 2018

In practice, child prostitution is also often closely linked to human trafficking, with trafficked children normally ending up in prostitution, even though the two concepts are distinct from each other. While child prostitution that is linked to human trafficking is normally associated with crossing borders, Kreston argues that it should be defined widely to also include domestic movement of children from different cities to other places within the same country for sexual exploitation by adults for commercial purposes.9 Internal trafficking of children within Zimbabwe for prostitution may not be very rampant. However, movement of children from one area to another, particularly to border towns such as Beitbridge, Plumtree or Chirundu Boarder Posts where long-distance truck drivers normally camp for days while clearing their loads, is very common because of the lucrative sex business with long- distance truck drivers. The same also applies to some major highways such as the Hwange-Victoria Falls highway and some business centres along major highways where long-distance truck drivers take their rest overnight such as Ngundu Business Centre along the Harare-Beitbridge highway.10 Other such areas along the Harare-Masvingo-Beitbridge highway are Mhandamabwe turn-off where truckers sleep, the Runde River Truck-Inn stop, Rutenga Business Centre and Lutumba Business Centre among others.11 Prostitution along the highways is normally mobile where the young prostitutes move from one business centre to the other with their truckers or in search of new clients. Statistics on child prostitution are generally agreed to be difficult to compile because of the underground and hidden nature of the practice. However, research suggests that there

9 SS Kreston ‘Trafficking in Children in South Africa: An Analysis of Pending Legislation’ (2007), Vol 8 (1), Child Abuse Research in South Africa, 36. 10 S Muyengwa, ‘Eliminating Harmful Cultural and Social Practices Affecting Children: Our Collective Responsibility’, (2014), A report prepared for the Zimbabwe Youth Council, 20-21. 11 V Mabvurira, C Nyomi, R Chigevenga, F Kambarami & R Chavhi, ‘The Realities of Children in Prostitution in Zimbabwe: A Case of Beitbridge and Plumtree Border Towns’, (2015), A Report produced for the Child Sensitive Social Policies Programme at the Women’s University in Africa in collaboration with UNICEF Zimbabwe, 45. UZLJ Child Prostitution in Zimbabwe 15 could be as many as 10 million children involved in child prostitution worldwide.12 The extent of child prostitution in Zimbabwe is still unknown due to lack of empirical research on the subject. However, an inference can be made from newspapers articles countrywide that indicate a serious presence of the practice in the country with children as young as 12 years or younger reported to be in the trade.13

2. CAUSES AND CATEGORIES OF CHILD PROSTITUTION IN ZIMBABWE There are quite a number of reasons why children engage in child prostitution. Of all the reasons and hence the different categories of child prostitutes, the one underlying cause is poverty in Zimbabwe, as is the case globally. Accordingly, Kembo & Nhongo state that there is a strong correlation between poverty and commercial sexual exploitation of children in Zimbabwe.14 As a result of poverty, there is a desire either by the child prostitute herself or her handlers to get financial returns in exchange for the sex with the child hence the overlaying economic gain for child prostitution. There are, however, other reported causes besides economic gain such as unbridled multiple love relationships and sometimes prostitution for fun but these are in the minimal if not non- existent. With poverty and economic benefits as an underlying cause, there are generally three broad categories of child prostitution in Zimbabwe. These are:

12 ‘Child Prostitution in Zimbabwe’, Fairplanet 17 September, 2015. 13 S Muyengwa (n10 above) 8. See also the following newspaper articles on the extent of child prostitution in Zimbabwe: ‘Zimbabwe’s Vice Capital: As 12 year olds are roped into prostitution in Epworth’ Sunday Mail 28 September, 2014; ‘Zimbabwean children sell their bodies to put food on the table’, The Telegraph 28 November, 2004; ‘Child prostitution worst form of child labour’, Newsday 11 November, 2013; ‘Child prostitution cause for concern’, Dailynews 27 April, 2014; ‘Children selling their bodies to earn a living’, Nehanda Radio.Com 1 April, 2015; ‘Women, children sell sex as hunger bites’, NewZimbabwe.Com 14 November, 2015; and ‘Bulawayo girls aged 13 engage in child prostitution’, ZimDiaspora.Com 07 July, 2013, among others. 14 J Kembo & K Nhongo (n7 above) 10-11. See also Rurevo R & M Bourdillon, ‘Girls: The Less Visible Street Children of Zimbabwe’ (2003), Vol 13(1) Children, Youth and Environments. 16 University of Zimbabwe Law Journal 2018

• Individual ‘voluntary’ child prostitution • Forced child prostitution by handler • Street children prostitution a. Individual ‘voluntary’ child prostitution This is the most common type of child prostitution in Zimbabwe. It involves a child individually deciding to venture into selling sex for various reasons, chief among them to get monetary returns as a result of poverty. This type of child prostitution is done by both children staying at home and those that have run away from home or have left home for various reasons. The most common are those that have runaway or left home due to domestic violence, dropping out of school, family breakdown, orphanhood, alcohol and drug abuse and/ or sexual abuse in the family.15 According to Hesselink-Louw, Bezuidenhout & Boniface, this group of children chooses prostitution as a career as a result of their unbearable circumstances at home.16 This is buttressed by Montgomery who notes that “While prostitution is not a positive choice for many children, it is nevertheless a choice made with knowledge that there are no good options”.17 As the children leave home and reach their new area of destination, some join up with friends or acquaintances that have also left home earlier and are already involved in prostitution and the children are easily initiated into the trade. This is most common for those in Zimbabwe who go to the aforementioned border towns that are popular with long- distance truck drivers who are considered a lucrative clientele for prostitutes. However, many leave home with the hope of getting decent jobs in the cities as housemaids or otherwise but sometimes fail to find the jobs. Without food and shelter and therefore destitute, many become vulnerable and desperate and end up prostituting themselves ‘voluntarily’

15 SS Kreston (n9 above) 38; AM Hesselink-Louw, C Bezuidenhout & R Pretorius (n4 above) 48-50. 16 AM Hesselink-Louw, C Bezuidenhout & AE Boniface (n6 above) 353. 17 H Montgomery, ‘Defining Child Trafficking & Child Prostitution: The Case of Thailand’, (2010-2011), Vol 9 (2), Seattle Journal for Social Justice, 788. UZLJ Child Prostitution in Zimbabwe 17 in exchange for money for survival.18 Montgomery calls these ‘Freelance Child Prostitutes’.19 In very rare circumstances, this type of child prostitutes may include those who just do it for fun or in order to find love. However, the nature of the interaction in prostitution between the prostitute, in this case a child and the client hardly involves any love nor is it enjoyable, but rather simply transactional. b. Forced child prostitution by handlers This is the most atrocious of all the categories of child prostitution. It involves children being used as sex slaves by handlers commonly known as Pimps. According to Hesselink- Louw, Bezuidenhout & Boniface, pimping refers to recruiting and persuading a woman or a girl to make her body available to men for sexual activities or prostitution.20 The methods used to ‘persuade’ could include misrepresentation or coercion. This category often involves child trafficking where children are taken from one area, normally with the promise of a job in the city and therefore a better life for the child and her family.21 When they get to the big cities or any place of perceived greener pastures, the promised better life is nowhere to be found but instead the children are enslaved into child prostitution. Poverty in neighboring countries also forces children to migrate to other countries in search of work. This is mostly common for children from Mozambique and Zimbabwe going to South Africa. In Musina, a town near the Zimbabwean and South African boarder, Zimbabwean children are seen loitering around and begging for food. This makes them very vulnerable since they have no one to protect them and so they become easy targets for Pimps who traffic them to big cities and exploit them in commercial sex. While pimping may not be very common in Zimbabwe, it has been reported in the aforementioned border and highway areas where older women known as ‘Godmothers’ accommodate child prostitutes, offer them protection and food while at the same time organizing

18 SS Kreston (n9 above) 38. 19 H Montgomery (n17 above) 788. 20 AM Hesselink-Louw, C Bezuidenhout & AE Boniface (n6 above) 355. 21 K Fitzgibbon, ‘Modern-Day Slavery? The Scope of Trafficking in Persons in Africa’ (2003) Vol 12 (1), African Security Review 81. 18 University of Zimbabwe Law Journal 2018 sex clients for the children.22 The Godmothers would then receive the payments for the sex on behalf of the children or simply share with the children when they bring home their daily takings or sometimes refuse to hand over the payments to the children who would have ‘serviced’ the clients, arguing that it is payment for the accommodation and food that they provide them.23 For children who are controlled by handlers, violence, death threats and punishment if they dare leave are used as instruments to keep them loyal in the industry. Immigrants are usually threatened with arrest and deportation back to the poverty they ran away from and this keeps them in the practice. This makes it easy for traffickers to recruit more child prostitutes because the negative effects of movement to big cities or to neighboring countries are never known in communities where children are taken from.24 Drugs and alcohol are also used as strong instruments of perpetuating child prostitution. Children are forced into drugs and become addicted. The Pimps then use withdrawal or supply of drugs as a way of controlling their child prostitutes who can no longer live without the substance because of addiction. That way, they remain loyal and continue making money for their handlers. c. Street children prostitution Life on the streets is difficult and sometimes even dangerous especially for the young and more so for girls in particular. It is survival of the fittest and in order to survive, the older boys normally form gangs and have specific areas that they control in terms of scavenging for food, begging from motorists, good places to sleep and sometimes lucrative places for stealing from the public. The younger and vulnerable street kids are therefore forced to belong to a particular gang if they want to have it easy on the streets. The gang leaders offer protection and freedom around their areas of control and in return they

22 V Mabvurira, C Nyomi, R Chigevenga, F Kambarami & R Chavhi (n11 above) p 46. 23 V Mabvurira, C Nyomi, R Chigevenga, F Kambarami & R Chavhi (n11 above) p 46. 24 K Fitzgibbon (n21 above) 84. UZLJ Child Prostitution in Zimbabwe 19 get a share of the takings that the other street kids bring which include money begged or stolen and food scavenged. According to Rurevo & Bourdillon, for girls, once they are living on the streets, it is difficult to survive without help from men.25 As such they instinctively have to belong to a gang or a particular boy for protection and they make their payment in kind, that is through having sex with the older boys. According to Montgomery, this is called street ‘survival sex’26 There are, however, few female street kids as compared to boys. As such, the demand for sex is normally high among the many boys while the supply in the form of the young girls is low. This presents an opportunity for the few young girls to fancy making some money out of this by providing their sexual services for a price to those that can afford to pay, thereby developing themselves into child prostitutes on the streets. The older gang leaders sometimes also become handlers for the girls, thus becoming Pimps as discussed above. Street child prostitutes are, however, not limited to other street boys as clients. More often than not, they also get clients who do not stay on the streets who simply want to take advantage of the young girls’ vulnerability and desperation for money and food on the street. In all the above categories of child prostitution, it is common to have some of the children being put out for prostitution by their own parents in order to bring some income for the family to survive or to sustain the parents’ alcohol and drug addictions problems.27

3. THE ‘WILLING PARTICIPANT’ THEREFORE ‘VICTIM BY CHOICE’ TAG Child prostitution worldwide has not been satisfactorily tackled for various reasons among them the difficulties in prosecuting perpetrators due to the underground nature of the practice and the difficulties in getting evidence and willing

25 R Rurevo & M Bourdillon (n14 above). 26 H Montgomery (n17 above) 785. 27 ‘Parents Face Child Sex Abuse Charges’, The Star 16 April, 2010; AM Hesselink-Louw, C Bezuidenhout & R Pretorius (n4 above) 48. 20 University of Zimbabwe Law Journal 2018 complainants and witnesses to testify.28 However, there also seems to be reluctance or unwillingness by authorities to act on child prostitution as they generally see the children not as victims of sexual abuse but rather as delinquent children who enter into prostitution on their own volition and are enjoying it, therefore are not victims of any crime. According to Hesselink-Louw, Bezuidenhout & Boniface, an early argument was that children contributed to their own sexual victimization.29 This statement opines that because the majority of children in prostitution have not necessarily been forced into it by anyone but rather are doing so voluntarily as a means of survival, it therefore follows that they are not strictly victims of any sexual abuse by anyone. If there is any abuse, they are abusing themselves which cannot be accused on anyone other than the children themselves. This unfortunate misconception was confirmed by Alan Billings, the Police and Crime Commissioner for South Yorkshire in England who when asked about the problem of child prostitutes, said “I think we saw these girls not as victims but as troublesome young people out of control and willing participants”30 While this view of child prostitution is very unfortunate, it is generally accepted worldwide and Zimbabwe is no exception. As a result, the law itself is not very clear as regards the sexual abuse inherent in child prostitution. There is lack of clarity as to how the Police for instance should handle cases of child prostitutes, whether as victims of a crime against the child or as criminals themselves. Similarly, there appears to be very few intervention programmes at national level and from NGOs that seek to deal with the problem of child prostitution in Zimbabwe. The same unwillingness to be associated with child prostitutes is also found in society at large which views this as delinquent, immoral and devoid of

28 K Fitzgibbon (n21 above) 84. 29 AM Hesselink-Louw, C Bezuidenhout & AE Boniface (n6 above) 353. See also CL Linedecker, Children in Chains 27 where he said, “Often the children are willing victims and trade themselves for what they consider to be affection”. 30 ‘Police saw Rotherham child sex abuse victims as prostitutes, says PCC’, The Guardian 05 May, 2015. UZLJ Child Prostitution in Zimbabwe 21

Christian values that many Zimbabweans subscribe to. In addition, society generally fears that these child prostitutes may have a negative influence on other ‘normal’ children in society or that they may end up wrecking marriages. It is, however, submitted that the ‘victim by choice’ tag that society ascribes to child prostitutes is very unfortunate and indeed very far from the truth. Children do not become prostitutes by choice, meaning it is never truly voluntary. Those who sell their bodies for sex are typically coerced by difficult circumstances such as poverty, drug addiction, or the threat of violence. Hesselink-Louw, Bezuidenhout & Boniface calls such children ‘victims of their circumstances, forced into prostitution in order to survive’.31 In Zimbabwe, the same applies as already discussed. In fact, the negative circumstances that children find themselves in are compounded by the high numbers of orphans mainly as a result of HIV/AIDS. This pandemic at its peak in the 90s, was recorded to be infecting about 30% of the population.32 While the number has halved to 14.3%, UNICEF estimates that almost a million children in Zimbabwe have lost one or both parents to HIV.33 The deaths from the pandemic led to proliferation of child-headed households whose burden of care for siblings normally rests on the girl child in the family in a depressed economy such as that of Zimbabwe currently. Such desperate times of providing food for the family often increase the vulnerability of girl children to prostitution. Furthermore, at law children are generally unable to consent to certain sexual acts due to their diminished capacity as a result of age, thus again further rendering the ‘victim by choice’ argument defective. Inability to consent basically means that by virtue of someone’s age or mental capacity, they are not able to discern between right and wrong or to determine their best interests, either in terms of the law or morally. Section 64 of the Criminal Law (Codification and

31 AM Hesselink-Louw, C Bezuidenhout & AE Boniface (n6 Above) 354. 32 Situational Analysis of Children and Women in Zimbabwe, UNICEF, 2010. 33 ‘Zimbabwe AIDS orphans struggle to get back to school’, UNICEF Zimbabwe 8 July, 2004. 22 University of Zimbabwe Law Journal 2018

Reform) Act (“the Criminal Law Code”) defines Presumptions relating to capacity to consent to sexual acts.34 These presumptions are not meant to remove the sexual offence altogether but rather to simply distinguish between different types of sexual offences that involve presence or lack of consent. Section 64(1) state that both girls and boys under 12 years are irrebuttably presumed to be incapable of consenting to sexual intercourse or act of any type. Section 65 defines this as rape. This means that sexual intercourse with a child prostitute who is below the age of 12, whether she is consenting to the act or not, is rape and should be treated as such. Such a child cannot consent to the act and therefore, at law, she cannot be a ‘victim by choice’ or a ‘willing participant’. This is so despite the fact that the accused may have found the child already a prostitute selling sex in a beerhall or nightclub or on the streets. It is simply rape and should be punished as such. But even where the child is above the age of 12 but below 16 years and has apparently consented, section 70(1) of the Criminal Law Code still makes it an offence to have sexual intercourse with such a child. This is known as Statutory Rape. Section 70(2) expressly states that “It shall be no defence to a charge of sexual intercourse or performing an indecent act with a young person to prove that he or she consented to such sexual intercourse or indecent act”. Hesselink-Louw, Bezuidenhout & Boniface even add that instead of relying on absence or presence of consent to the sexual act, penetrative sexual acts must be deemed unlawful if coercive or fraudulent circumstances are present or if the ‘victim’ was incapable in law to appreciate the nature of the act.35 All this serves to show that the misconception of ‘willing participant’ therefore ‘victim by choice’ is defective both in fact and at law. The challenge, however, is that in as much as the Police may want to arrest perpetrators and prosecute them on child prostitution, the act normally does not have a complainant or a witness. The children who enter into the

34 Criminal Law (Codification and Reform) Act [Chapter 9:23]. See also Section 23(1) of the Sexual Offences Act [Chapter 9:21]. 35 AM Hesselink-Louw, C Bezuidenhout & AE Boniface (n6 above) 366. UZLJ Child Prostitution in Zimbabwe 23 trade as a way to survive see the male clients as invaluable since they are providing for their survival. As such, under no circumstances will they freely solicit for sexual clients, be duly paid for the services only to turn around and report the same clients to the Police, alleging sexual abuse. The same applies with nightclub or beerhall owners who are out to make business and as such cannot be seen discouraging or reporting child prostitution as it may affect their business. Child prostitution therefore becomes an invisible trade that no one wants to admit association with or knowledge of, yet it is hidden in plain sight.

4. HUMAN AND CHILD RIGHTS VIOLATIONS IN CHILD PROSTITUTION This horrendous practice of child prostitution is laden with gross violations of human and child rights. It flies in the face of children’s rights to:

i. Education as provided for in sections 27, 75 and 81(1)(f) of the Constitution of Zimbabwe36 , Article 11 of the ACRWC and Article 28 of the Convention on the Rights of the Child (hereafter referred to as the CRC)37 . ii. Health and Health Services as provided for in sections 29, 76 and 81(1)(f) of the Constitution of Zimbabwe, Article 14 of the ACRWC and Article 24 of the CRC. iii. Protection against Torture, Cruel, Inhuman and Degrading Treatment as provided for in sections 53 and 81(1)(e) of the Constitution of Zimbabwe, Article 16 of the ACRWC and Article 37 of the CRC. While the above are the major child rights violated in child prostitution, many others are also infringed upon. These include but not limited to right to life,38 freedom of

36 Constitution of Zimbabwe (Amendment No 20) Act of 2013. 37 Adopted and Opened for Signature, Ratification and Accession by General Assembly Resolution 44/25 of 20 Nov 1989. Ratified by Zimbabwe on the 11th of September 1990. 38 Section 48 of the Constitution of Zimbabwe, Article 5 of the ACRWC and Article 6 of the CRC 24 University of Zimbabwe Law Journal 2018 association,39 right to privacy40 , right to protection against slavery, servitude and forced labor41 , right to leisure and recreational activities42 and freedom of trade, occupation and profession43 , among others.

5. INTERNATIONAL LEGISLATION ON CHILD PROSTITUTION Child prostitution is well provided for at international level both as a child rights violation in itself and as a form of sexual exploitation of children, among others. Article 27(1) of the ACRWC clearly states that: States Parties to the present Charter shall undertake to protect the child from all forms of sexual exploitation and sexual abuse and shall in particular take measures to prevent: (a) The inducement, coercion or encouragement of a child to engage in any sexual activity; (b) The use of children in prostitution or other sexual practices… On the other hand, Article 34 of the CRC provides an almost similar but different provision by stating that: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices… While these two provisions may look similar, there are slight differences that in the end make one of them more desirable

39 Section 58 of the Constitution of Zimbabwe, Article 8 of the ACRWC and Article 15 of the CRC. 40 Section 14 of the Constitution, Article 10 of the ACRWC and Article 16 of the CRC. 41 Section 13 of the Constitution, Article 15 of the ACRWC and Article 32 of the CRC. 42 Article 12 of the ACRWC and 31 of the CRC. 43 Section 22 of the Constitution. UZLJ Child Prostitution in Zimbabwe 25 than the other in certain circumstances. The CRC qualifies its prohibition of child prostitution or exploitative sex with children with the words ‘unlawful sexual activity’. Without an interpretation guideline thus far from the UN Committee on the Rights of the Child regarding Article 34, this may be interpreted to mean that the CRC envisages situations of inducement or coercion of a child to engage in ‘lawful sexual activity’ which should be acceptable. This presents challenges of defining which sexual activity with a child through undue inducement or coercion will be deemed lawful. Such an interpretation may therefore leave room for abuse to the disadvantage of children. On the contrary, the ACRWC flatly prohibits inducement or coercion of a child in ‘any sexual activity’. Indeed this is a more plausible clause as it implies that whenever there is coercion or undue inducement, under no circumstances will such ‘any sexual activity’ be lawful. This closes any gaps that may allow for adverse interpretation that may end up prejudicing the children that the provisions seek to protect. Furthermore, Article 34 of the CRC uses the phrase ‘exploitative use of children in prostitution’. This again leaves room for an adverse interpretation that there could be use of children in prostitution that is not exploitative, which interpretation is clearly not intended and undesirable for full protection of children from sexual exploitation by adults. This is aptly noted by Greijer and Doek44 when they stated that “A potentially negative aspect of the term used in the CRC, ‘exploitative use of children in prostitution’, is that it might be understood as there also being a non-exploitative use of children in prostitution”. On the contrary, Article 27 of the ACRWC just prohibits ‘the use of children in prostitution’. This implies that any use of a child in prostitution is inherently exploitative and therefore unlawful under whatever circumstances. This clause gives complete protection that does not leave any room for deviant interpretations and therefore is more desirable.

44 S Greijer and J Doek, ‘Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse’, Adopted by the Interagency Working Group on Sexual Exploitation of Children in Luxembourg, 28 January 2016, 30. 26 University of Zimbabwe Law Journal 2018

The above stated provisions of the CRC should be read to together with Articles 3, 4 and 19 of the CRC.45 The same applies to the ACRWC whose provisions must be read together with Articles 4, 5(2), 16, 27 and 29 of the same instrument for completeness. In addition, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children also provides for child trafficking and prostitution as sexual exploitation that is inherently unlawful.46 Despite a few shortcomings of the above provisions highlighted, the international instruments discussed are important because they expressly affirm children’s right to protection against sexual exploitation in the form of child prostitution. They provide a foundation for the right to protection against child prostitution in member states and it is left upon individual countries such as Zimbabwe to build upon the international provisions and develop clear legislation and guidelines for protection of children against child prostitution. Zimbabwe is a signatory to all the above international instruments thus making it peremptory that it adheres to the guiding principles, protection and prevention measures expressed therein on child prostitution.

6. REVIEW OF DOMESTIC LEGISLATION ON CHILD PROSTITUTION Crimes against or related to child prostitution are relatively well provided for in Zimbabwean law. Various Acts ranging from the Criminal Law (Codification and Reform) Act (hereafter referred to as the Criminal Law Code),47 the Children’s Act,48 the Domestic Violence Act,49 the Trafficking in Persons Act50 among others, more or less comprehensively deal with the problem of child prostitution or its associated activities.

45 AM Hesselink-Louw, C Bezuidenhout & AE Boniface (n6 above) 357. 46 Also known as the Palermo Protocol. Adopted and opened for signature, ratification and accession by General Assembly Resolution 55/25 of 15 November 2000. Acceded to by Zimbabwe on the 13th of December 2013. 47 Chapter 9:23. 48 Chapter 5:06. 49 Chapter 5:16. 50 Chapter 9:25. UZLJ Child Prostitution in Zimbabwe 27 a. Constitution of Zimbabwe Amendment (No 20) Act of 2013 Zimbabwe adopted a new and indeed progressive Constitution in 2013. Section 2 of the new Constitution aptly declares the Constitution as the supreme law of Zimbabwe, thus making any law, practice, custom or conduct inconsistent with it invalid to the extent of the inconsistency.51 Consistent with the requirements of the CRC52 and the ACRWC53 , the Constitution of Zimbabwe provides for a number of children’s rights in section 81.54 As far as child prostitution is concerned, the Constitution, as expected, does not make specific reference to it. It, however, broadly provides for protection of children “from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse”.55 Since child prostitution is a form of economic activity using sex, which activity is both exploitative and abusive to children, and also having elements of maltreatment and neglect of a child, it can safely be argued that the Constitution in its broad pronouncement adequately prohibits the prostitution of children either by themselves or by others. It further states in section 2 that “A child’s best interests are paramount in every matter concerning the child”.56 This means that anything that happens involving a child should always consider the best interest of the child as central. Indeed child prostitution with its exploitative and abusive nature coupled with its long term destructive consequences on the physical, mental, psychological and educational development of a child, is among the biggest violators of this paramount principle. While the Constitution makes broad pronouncements on the sexual exploitation and abuse of children, under which child prostitution falls, it is left for the relevant domestic legislation

51 Constitution of Zimbabwe Amendment (No 20) Act, 2013. 52 Article 4. 53 Article 1(1). 54 Also known as the Bill of Child Rights. See also section 19 for the corresponding State’s Obligations for the implementation of the said children’s rights. 55 Section 81(1)(e). See also section 19(3)(a-b). 56 See also section 19(1) of the Constitution of Zimbabwe. 28 University of Zimbabwe Law Journal 2018 to expand upon this and make specific and detailed prohibition and protection legislative provisions against child prostitution. Some of these domestic laws are discussed below. b. Criminal Law (Codification and Reform) Act [Chapter 9:23] According to Feltoe, the Criminal Law Code brings together in one piece of legislation all of the major aspects of the Criminal Law of Zimbabwe, whilst at the same time effecting a whole series of reforms and improvements to the pre-existing Criminal Law.57 Likewise, it also attempts to codify all sexual offences relating to children as scattered in various pieces of legislation. Sections 61-87 of the Criminal Law Code describe various forms of sexual offences against other people in Zimbabwe and among them are offences against children, some of which directly relates to child prostitution or other related acts.58 By way of definitions that are important to the subject of child prostitution, section 61(1) states the following: “extra-marital sexual intercourse” means sexual intercourse otherwise than between spouses; “prostitute” means a male or female person who for money or reward— (a) allows other persons to have anal or extra-marital sexual intercourse or engage in other sexual conduct with him or her; or (b) solicits other persons to have anal or extra-marital sexual intercourse or engage in other sexual conduct with him or her; and the word “prostitution” shall be construed accordingly. The above definitions are important in that they give legal meaning to the act of prostitution that the children under

57 G Feltoe, ‘Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23]’ (2012), Published on http://ir.uz.ac.zw/xmlui/ bitstream/handle/10646/664/commentary_on_criminal_law_code_j an_2012.pdf;jsessionid=75E49E21224176D9DAE800531B731CB4?sequence=1, i. 58 Many of these provisions are a re-enactment of sections 3-14 of the repealed Sexual Offences Act [Chapter 9:12]. UZLJ Child Prostitution in Zimbabwe 29 discussion engage in with adults, which acts are criminal offences and indeed detrimental to the physical, mental, psychological and educational development of children. Section 70 of the Criminal Law Code directly criminalizes sexual intercourse with a child, at least below the age of 16 years. It states that: (1) Subject to subsection (2), any person who— (a) has extra-marital sexual intercourse with a young person; or (b) commits upon a young person any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or (c) solicits or entices a young person to have extra- marital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both. (2) It shall be no defence to a charge of sexual intercourse or performing an indecent act with a young person to prove that he or she consented to such sexual intercourse or indecent act. (3) It shall be a defence to a charge under subsection (1) for the accused person to satisfy the court that he or she had reasonable cause to believe that the young person concerned was of or over the age of sixteen years at the time of the alleged crime: Provided that the apparent physical maturity of the young person concerned shall not, on its own, constitute reasonable cause for the purposes of this subsection. This provision is the clearest prohibition there is on sex with children, which includes in child prostitution, even though this may not have been mentioned by name. The provision attaches criminal responsibility on the actual person who has had sex with the child. While not explicitly mentioning 30 University of Zimbabwe Law Journal 2018 commercial sex with a child, the implicit interpretation of the clause is that even if the child is a prostitute who offers herself for sex in exchange for money, the provision expressly renders such voluntariness irrelevant as it does not accept the presence of consent from the child as a defense.59 Using the above provision, it therefore becomes possible for law enforcement officers to investigate those alleged clients of child prostitutes and arraign them before the courts for commission of a crime. It may, however, be a challenge to successfully prosecute such cases as they rely heavily on the complaint (police report) and indeed the testimony of the victim, just as is the case with other criminal matters. It thus goes without saying that such complainants in the form of the child prostitutes do not see themselves as victims of any crime or of having been wronged in any way by anyone. In-fact, they often see themselves as having voluntarily entered into the sex trade as a way of income generation. Their clients are therefore invaluable to them and as such, they do not want to be seen to be scaring them away by reporting to the police. The child prostitutes will thus most probably be unwilling to make any report to the police, let alone to then go on to endure the ‘shame’ of giving such explicit testimony in court on a subject matter that is generally viewed as taboo in society and indeed on prostitution which is generally abhorred in society. The long and short of it therefore is that crimes involving child prostitution are very difficult to unearth, thus making any prosecution practically impossible. Sections 82-86 of the Criminal Law Code further criminalise various other acts that are related to prostitution and indeed to child prostitution. These offences include Living off or facilitating prostitution; Procuring of other persons for the purposes of prostitution; Coercing or inducing persons for purposes of engaging in unlawful sexual conduct; and Permitting a young person to resort to places for purposes of engaging in unlawful sexual conduct. While these provisions criminalizes pimping of persons including of children for sex as well as allowing young persons in places of drinking alcohol

59 See also discussion on ‘willing participant’ therefore ‘victim by choice’ on Part 4 above. UZLJ Child Prostitution in Zimbabwe 31 such as night clubs for prostitution, the same challenges highlighted above of lack of evidence due to unwilling complainants and witnesses also befall this category of crimes. Indeed where the prostitution by the child is not purely forced as happens in trafficking but rather a ‘voluntary’ means of income generation; such children have unwavering loyalty to their handlers such that they cannot be seen to be selling them out to the Police lest they lose their income. The same applies to the bar-owners that allow children to use their bars for prostitution. Instead of seeing the owners as criminals that are promoting their sexual exploitation, the children are actually grateful and indeed indebted to the bar-owners for allowing them access to a lucrative source of income. Section 87 of the Criminal Law Code is particularly interesting and indeed commendable as far as the subject of child prostitution is concerned. It states that: Any parent or guardian who causes or allows his or her child under the age of eighteen years to associate with prostitutes or to be employed by any prostitute as a prostitute or to reside in a brothel shall be guilty of allowing a child to become a prostitute and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding ten years or both. While the clause is unfortunately only directed at parents and guardians,60 two important observations emerge from it. Firstly, it expressly refers to child prostitution as a concept. This is unlike the other provisions discussed above that only refer to unlawful sexual conduct or extra-marital sexual intercourse with a young person. The clear acknowledgement of the existence of the phenomenon here is important in developing jurisprudence around it in Zimbabwe as well as in improving legislation to properly identify the problem as child prostitution without any ambiguities. It is hoped that as the country continues to improve its laws, such direct reference

60 While section 87 of the Code refers to parents and guardians only, its equivalent enactment in section 8 of the Children’s Act refers to any person. Under a befitting heading of ‘Corruption of children and young persons’, it states that: (1) “Any person who allows a child or young person to reside in or to frequent a brothel shall be guilty of an offence”. 32 University of Zimbabwe Law Journal 2018 to child prostitution will be used for clarity of issues. Secondly, the clause refers to a ‘child under the age of eighteen years’. Again this is critical in defining and delimiting the age at which the crime is committed. Unlike in provisions discussed above which talk about a young person under the age of sixteen, section 87 pegs the crime at 18 years. This is indeed commendable as it aligns with the international definition of a child,61 as well as the Constitutional definition of a child in Zimbabwe,62 both of which refer to 18 years. While consent to sex may be allowed at 16 in Zimbabwe, it is submitted that as long the sexual conduct in question involves prostitution, the age limit of 18 years as used in section 87 of the Criminal Law Code is more desirable and indeed recommended as a way of effectively combating the sexual exploitation and abuse of children inherent in the act. Besides the Criminal Law Code referred to above, there are other pieces of legislations in Zimbabwe that can also be used to criminalise child prostitution and indeed to prosecute it. Of note is the Children’s Act which apart from section 8 already referred to above, also has sections 7, 12, 13 and 78 that refer to associate acts to child prostitution. Section 14 importantly proffers a remedial action for child prostitutes in the form of removal of such children to a place of safety. Apart from challenges of actually identifying these children highlighted above, whether or not removing them from the streets to places of safety actually works is a discussion for another day. The Domestic Violence Act can also be used in as far as it relates to sexual abuse of a person. Similarly, the Trafficking in Persons Act can also be used for prosecution of child prostitution where the two are interlinked, which is normally the case particularly where cross boarder trafficking is involved. Section 3 of the Act describes the crime of trafficking in persons and specifically states that where the trafficking includes children, the offence is aggravated.63 The law as discussed above is certainly lacking for not explicitly providing for child prostitution as a crime. The idea of having

61 Article 1 of the CRC and Article 2 of the ACRWC. 62 Section 81(1). 63 Section 3(3)(a) and 3(4) of the Trafficking in Persons Act. UZLJ Child Prostitution in Zimbabwe 33 to derive the crime from indirect statements presents law enforcement agencies with confusion and at times fear of doing the wrong thing. It is imperative that child prostitution be a crime on its own just as rape is. With that it can clearly clarify sanctions for those that have sex with the child prostitutes, those that peddle them, those that allow their places to be used for such among others. As a way of encouraging reporting, the law must clearly state that the child prostitute herself has not committed any crime. A clause on vulnerable witnesses should also be included for protection such that other children, relatives or anyone else can be a whistle blower or a complainant on child prostitution and not fear stigmatization or victimization even when it comes to giving evidence in court. In addition, it should also be an offence for anyone to have intimate knowledge of acts of child prostitution and fail to report it within a reasonable time to the police.64 As at the present moment, there sadly seems to be no recorded or reported case on child prostitution that has been successfully prosecuted in Zimbabwe, which points to the lack of seriousness given to this crime or ignorance about it by the law and order authorities as well as the judiciary.

7. CONCLUSION While Zimbabwean legislation may not have explicitly provided for child prostitution as a crime, the offence is relatively adequately provided for in various pieces of law which can be used to combat this horrific practice on children for now. What really lacks is the effective enforcement of these laws on the ground through proactive identification of such cases in communities, effective investigation by police and indeed effective prosecution by the state. While there are many reasons for this apparent lack of enforcement including the hidden nature of the practice and lack of willing complainants as discussed above, political will to tackle the problem must still be seen in various initiatives. Public awareness, for one, is critical to dispel the misconception that child prostitutes are ‘willing participants’ therefore ‘victims by choice’. It is

64 AM Hesselink-Louw, C Bezuidenhout & AE Boniface (n6 above) 366. 34 University of Zimbabwe Law Journal 2018 high time that society is educated to begin to see this phenomenon as nothing lesser than the actual rape of a child and should be equally despised. Such awareness should be accompanied by information on how to identify child traffickers and child prostitutes and where to report. This increased activism on child prostitution should ideally be accompanied by victim-specific reform-oriented interventions such as rehabilitation, family reunification, back-to-school programmes or special skills training among others that provide viable alternatives to such children thereby giving them an opportunity in life. In addition, there is need for specialized training of law enforcement agents to sniff out perpetrators, to conduct effective and successful prosecution and the imposition of deterrent sentences as a warning to would be offenders. As with other sexual offences, children in schools also need to be educated on child prostitution and its negative consequences as a preventive measure. With such collective efforts, child prostitution can at least be reduced in the meantime with a view to completely eradicating it the long term. THE RIGHT TO STRIKE IN ZIMBABWE IN THE CONTEXT OF THE 2013 CONSTITUTION AND INTERNATIONAL LAW

BY MUNYARADZI GWISAI, CALEB MUCHECHE & RODGERS MATSIKIDZE1

INTRODUCTION The right to strike is of cardinal importance in any labour law regime based on social justice and democracy in the workplace. It lies at the heart of the freedom of association, the right to organise and collective bargaining.2 The right has received acclaim under international law. For the first time in Zimbabwe, and following on recent international constitutional jurisprudence, the right to strike has become enshrined in the Constitution of Zimbabwe.3 However, historically the right to strike has often been watered down and rendered impotent by an interplay of factors and restrictions.4 The purpose of this essay is to provide an update

1 Munyaradzi Gwisai lectures in Labour Law and Labour Relations at the University of Zimbabwe and Briggs Zano Working Peoples College. Caleb Mucheche is a registered arbitrator, legal practitioner and part- time lecturer, Briggs Zano Working Peoples College. Rodgers Matsikidze is the Principal of the Briggs Zano Working Peoples College, a legal practitioner, registered arbitrator and part-time lecturer at the Faculty of Law, University of Zimbabwe . 2 In the oft-quoted words Khan Freund - “there can be no equilibrium in industrial relations without a freedom to strike. In protecting that freedom, the law protects the legitimate expectations of the workers that they can make use of their collective power: it corresponds to the protection of the legitimate expectation of management that it can use the right of property for the same purpose on its side.....” cited in P Davies and M Freedland Khan Freund’s Labour and The Law 3rd (ed) (1983) 292 . 3 Under section 65 (3) Constitution of Zimbabwe Amendment (No. 20) Act 2013 (1/2013), gazetted on 22 May 2013. 4 See the seminal article by Professor L Madhuku discussing the law on strike in Zimbabwe and the attendant severe restrictions up to the Labour Relations Act, 1985: L Madhuku “The Right to Strike in Zimbabwe” Zim. LR (1995) 113 .

35 36 University of Zimbabwe Law Journal 2018 on the extent to which Zimbabwean law is in sync with the letter and spirit of the right to strike as provided under international law and in particular in view of the new constitutional provisions.

HISTORICAL SURVEY Up until the major reforms introduced by the Labour Relations Amendment Act,5 the right to strike or collective job action, to use the Zimbabwean lexicon, remained a pie in the sky – nominally proclaimed but denied in substance. Originally strikes were unlawful under common law and the early colonial labour statutes. Common law considers strikes as a breach of the duties to provide service and good faith or as a repudiation of the contract of employment.6 The common law position is based on the unitarist perspective of labour relations. In terms of the latter the employment relationship is perceived as an individual one and there is no need for collective regulation of the relationship through collective bargaining. The work place is a harmonious entity in which conflict is unnatural and dysfunctional. Strikes, if not the result of bad communication by management, are caused by agitators.7 The first colonial legislation, which was driven by the needs of primitive accumulation as the new capitalist society was being setup, was based on common law. Under the Masters and Servants Ordinance, strikes were both a breach of contract but also criminalised, attracting severe penalties, including imprisonment.8

5 Act No. 17/2002. 6 Wholesale Centre (PVT) Ltd v Mehlo & Ors 1992 (1) ZLR 376; Zimbabwe Banking and Allied Workers Union & Anor v Beverley Building Society & Ors 2007 (2) ZLR 117 (H) per PATEL J. Generally, A Rycroft and B Jordaan A Guide to Labour Law in South Africa (1992) 274. 7 M Finnemore Introduction to Labour Relations in South Africa 10th ed (2009) 6. 8 Under section 1, Chapter IV of the Master and Servant Ordinance No. 5/1901 the penalties included a fine or in default imprisonment with or without hard labour and with or without spare diet. UZLJ The Right to Strike in Zimbabwe 37

The first recognition of the right to strike was under the 1934 Industrial Conciliation Act.9 However the Act and subsequent amendments, only partially recognised the right to strike and encumbered it with innumerable substantive and procedural restrictions that rendered the right ineffective. For instance the Act applied only to white and mixed-race employees in the private sector, thereby excluding the vast bulk of employees who were black and public sector employees.10 Although subsequently extended to apply to black workers in the industrial and commercial sectors, the Act remained inapplicable to employees in the Public Service, agriculture, mining or those employed in areas deemed “essential services.”11 The right was excluded for unregistered trade unions or for political purposes.12 Severe procedural impediments were provided for under the Industrial Conciliation Acts. These included provisions such as: a requirement for a secret ballot before striking;13 mandatory notice periods before going on strike;14 strikes could only be done after a dispute had gone through arbitration or at the expiry of an industrial agreement.15 Repressive legislation increased after the Unilateral Declaration of Independence (UDI) whereby strikes were virtually banned on the grounds of public emergency.16 The philosophical foundations of the colonial labour law regime was a racist autocratic state corporatist regime marked by extreme hostility to strikes and any collective mobilisation of the black working class, which was seen as a potential grave

9 Under section 38 Industrial Conciliation Act 1934 (10/1934). 10 By virtue of the application clause of the Act in terms of section 2 Act 10/1934. 11 See section 4 Act No. 29 of 1959. 12 Section 40 (29/1959). 13 Section 47 (1)n (29/1959). 14 Section 122 (29/1959). 15 Ibid. See generally, M Gwisai M Labour and Employment Law in Zimbabwe: Relations of Production under Neo-Colonial Capitalism, (2006) 344 - 45. 16 Under legislation such as the Emergency Powers Act [Chapter 83] and the Law and Order (Maintenance) Act [Chapter 65] and Unlawful Organisations Act, [Chapter 91]. 38 University of Zimbabwe Law Journal 2018 threat to the entire colonial superstructure.17 A structure that was marked by the denial of the most basic political and civic rights to the majority of the population including the absence of a justiciable Declaration of Rights. Despite Independence in 1980, the post-colonial state introduced further repressive legislation proscribing strikes in an ever-increasing definition of essential services, especially after the wave of strikes of the early 1980s.18 The Labour Relations Act of 1985 although nominally proclaiming the right of employees to engage in collective job action,19 expanded on the restrictions inherited from the colonial legislation.20 For instance the definition of “essential services” was expanded to cover virtually every sector. Lengthy and cumbersome procedures and labour injunctions, called show cause orders, were introduced.21 Strikes were only permissible in defence of the existence of a workers committee or registered trade union or to deal with an immediate occupational hazard.22 The above amply justified Madhuku’s scathing attack that the restrictions “...made the law on strikes ridiculous.”23 Following major working class struggles in the late 1990s protesting political autocracy and poverty, there was a sea- change shift in the labour relations paradigm with the adoption of a pluralist perspective. The declared purpose of the new Labour Relations Amendment Act, 200224 was, inter alia, to promote social justice and democracy in the workplace by promoting collective bargaining, introduction of the unfair

17 I Phimister An Economic and Social History of Zimbabwe 1890-1948 (1988); ILO Labour Conditions and Discrimination in Southern Rhodesia (1978) 72 - 73. 18 These included the Emergency Powers (Maintenance of Essential Services) Regulations, S.I. 160A of 1989 and the Public Services (Maintenance of Services) Regulations S.I. 258 of 1990. 19 In s 120 (1) Labour Relations Act 1985 (16/1985). 20 See generally Part XIV. For judicial enforcement of these provisions see - Lancashire Steel Ltd v Zvidzai & Ors S- 29- 95. 21 See sections 118 and 120 (16/1985). 22 Section 120 (4)(16/1985). 23 See L Madhuku op cit at 121. 24 Act No. 17 of 2002. UZLJ The Right to Strike in Zimbabwe 39 dismissal doctrine and a more permissive legal regime in relation to strikes. Subsequent judicial pronouncements showed that strikes were now in fact possible under the changed legal regime, albeit still with major but no longer insurmountable procedural impediments.25 However, a major weakness remained the lack of a constitutional basis for the right to strike, as the courts remained steady-fast in refusing to recognise the right as implicit in the freedom of association and assembly under s 21 of the old Constitution.26

RADICAL IMPLICATIONS OF NEW CONSTITUTION The 2013 Constitution marks a climax of the process that started with Act 17 of 2002. For the first time in Zimbabwean law, the Constitution now explicitly provides for a broadly worded right to collective job action and strike. Section 65 (3) reads: (3) Except for members of the security services, every employee has the right to participate in collective job action, including the right to strike, sit in, withdraw their labour and to take other similar concerted action, but a law may restrict the exercise of this right in order to maintain essential services. The interpretation regime of the Constitution is also pertinent. In interpreting the Declaration of Rights, courts are required to give full effect to rights, to promote the values that underlie a democratic society based on, inter alia, justice and human dignity and generally to be guided by the spirit and objectives of the Declaration of Rights.27 This is reinforced by s 46 (2) which states that when any court or tribunal is interpreting an enactment and when developing the common law, it must

25 In the important Supreme Court decision of Zimbabwe Graphical Workers Union v Federation of Master Printers of Zimbabwe & Anor 2007 (2) ZLR 103 (S) . 26 Zimbabwe Banking and Allied Workers Union & Anor v Beverly Building Society & Ors 2007 (2) ZLR 117 (H) at 127F-G; and Tel-One (Pvt) Ltd v Communications and Allied Services Workers Union 2006 (2) ZLR 136 (S) at 145A. 27 Section 46 (1) (a) (b) of the Constitution. 40 University of Zimbabwe Law Journal 2018 promote and be guided by the spirit and objectives of the Declaration of Rights.28 Further, courts and tribunals are required to “take into account international law and all treaties and conventions to which Zimbabwe is a party.”29 Section 327 (6) is also relevant. It reads: (6) When interpreting legislation, every court and tribunal must adopt any reasonable interpretation that is consistent with any international convention, treaty or agreement which is binding on Zimbabwe, in preference to an alternative interpretation inconsistent with that convention, treaty or agreement. The 2013 Constitution permits limitations on fundamental human rights and freedoms by due regard to the rights and freedoms of other persons and only in terms of a law of general application and to the extent that the limitation “… is fair, reasonable, necessary and justifiable in a democratic society…”30 The concept of the right to strike and freedoms of association and assembly have received considerable treatment under international law and in particular International Labour Organisation (ILO) jurisprudence. It is pertinent therefore to analyse the Zimbabwean framework on strikes by reference to international law. The right to strike and freedom of association under international law The basis for the right to strike under international instruments may be direct or indirect. Some instruments provide for the right explicitly. The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, ratified by Zimbabwe, provides for a right to strike under art. 8(1.4). This reads: 1. The States Parties to the present Covenant undertake to ensure: 1. ...

28 Which is also reinforced in s 176 of the Constitution . 29 Section 46 (1) ( c ) of the Constitution. 30 Section 86 Constitution. UZLJ The Right to Strike in Zimbabwe 41

2. ... 3. ... 4. The right to strike, provided that it is exercised in conformity with the laws of the particular country. The potential of the Convention as an important source is undermined by the fact that it subordinates the realisation of the right to national laws without any qualifications. Further the Covenant allows the imposition of restrictions on the exercise of the right by members of the armed forces or of the police or of the administration of the State.31 A broader basis for the right to strike is provided in the Charter of Fundamental Social Rights in SADC (2003), “SADC Charter.” The right is provided as a facet of the freedom of association and collective bargaining under article 4. This reads:32 Member States shall create an enabling environment consistent with ILO Conventions on freedom of association, the right to organise and collective bargaining so that:.... (e) the right to resort to collective action in the event of a dispute remaining unresolved shall: (i) for workers, include the right to strike and to traditional collective bargaining; and (ii) for employers, include traditional collective bargaining and remedies consistent with ILO instruments and other international laws; (g) essential services and their parameters shall mutually be defined and agreed upon by governments, employers associations and trade unions; (h) due to the unique nature of essential services, appropriate and easily accessible machinery for quick resolution of disputes shall be put in place by governments, employers and trade unions; and (i) freedom of association and collective bargaining rights shall apply to all areas, including export processing zones.

31 Article 8.1 (2) ICESCR. 32 Article 4 SADC Charter. 42 University of Zimbabwe Law Journal 2018

Many recent constitutions in the region and internationally provide for the right to strike. Regionally examples include South Africa, Mozambique, Malawi, Botswana, Uganda and Ethiopia.33 Internationally, examples include India and Venezuela.34 The comprehensive treatment of the content of the right to strike has been provided for in International Labour Organisation (ILO) jurisprudence. There is no ILO convention dealing specifically with the right to strike. The more obvious candidate conventions, C087,35 C098,36 and C15437 do not make any specific reference to the right to strike. However, the absence of a specific right to strike in the ILO conventions, does not mean such a right does not exist in ILO labour jurisprudence. ILO case law, developed by the Committee of Experts and the Committee on Freedom of Association holds that the right to strike is “an intrinsic corollary to the right to organise protected by Convention No. 87.” The right to strike is “a legitimate means...through which workers may promote and defend their economic and social interests.”38 The above reflects what is is known as the “functional approach.” This has received judicial recognition in other jurisdictions. For instance in South Africa it was held that “the right to strike is an essential and integral element of collective bargaining” and the right to organise and freedom

33 Examples of national constitutions that enshrine the right to strike include: Constitution of the Republic of South Africa [s 23 (2) (c) ]; Constitution of Botswana [s 13]; Constitution of Uganda [art 40 (3) ]; Constitution of Mozambique [art 91]; Constitution of Ethiopia [art 42 (1)] . 34 Constitution of India [art 19 (1) ]; and Constitution of Venezuela (art 97). 35 Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). 36 Right to Organise and Collective Bargaining Convention, 1948 (No. 98). 37 Collective Bargaining Convention, 1981 (No.154). 38 Paras 362 and 363, ILO The Digest of Decisions and Principles (2006) Chapter 10. See also ILO General Survey by Committee of Experts (1983) para 2000; ILO General Survey by Committee of Experts (1994) para 148. UZLJ The Right to Strike in Zimbabwe 43 of association.39 In the Canadian decision of Re Tail Wholesale Union and Govt of Saskatchewan40 Cameron JA held: ... the freedom to bargain collectively, of which the right to withdraw services is integral, lies at the very centre of the existence of an association of workers. To remove their freedom to withdraw labour is to sterilise their association. Note however, that the logic of this case seems to have been subsequently overruled by the Canadian Supreme Court.41 In Zimbabwe, the obiter dictum of CHIDYAUSIKU CJ, in Tel* One (Pvt) Ltd v Communications & Allied Services Workers Union,42 seems to support the logic underlying the functional approach as expressed in the above-cited South African decisions. In Zimbabwe Banking and Allied Workers Union & Anor v Beverly Building Society & Ors,43 though, Patel J, using the opposite unitarist approach, and citing subsequent superior court authorities from Canada and India, held that the freedom of association does not necessarily include the right to strike or collective bargaining. Despite the unitarist approach adopted in Zimbabwe Banking and Allied Workers Union & Anor v Beverly Building Society & Ors, supra, the weight of international labour law as encompassed in the SADC Charter and the Digest of Decisions

39 NUM v East Rand Gold Mine and Uranium Co Ltd (1991) 12 ILJ 1221 (A) at 1237 E; Black Allied Workers Union & Ors v Prestige Hotels CC t/a Blue Waters Hotel (1993) (14) ILJ 963 at 972; SACTWU & Ors v Novel Spinners (Pvt) Ltd 1999 (11) BLLR 1157. 40 (1985) 19 DLR (4th) 609, at 639. 41 In Professional Institute of the Public Service of Canada v Commissioner of the Northwest Territories & Ors (1990 2 SCR where it was held that the constitutional guarantee of the freedom of association does not include the right to bargain collectively. 42 2006 (2) ZLR 136 (S) at 145A. 43 2007 (2) ZLR 117 (H) at 127D-G. This decision was upheld in Zimbabwe Banking & Allied Workers Union & Anor v Beverly Building Society & Ors 2010 (1) ZLR 292 (S) per Malaba DCJ. See also National Security Guards and Allied Workers Union v The Registrar for Labour & Ors LC/ H/71/2012 . 44 University of Zimbabwe Law Journal 2018 and Principles of the Freedom Association Committee of the Governing Body of the ILO, “the Digest,” clearly endorses the functional approach whereby the right to strike is taken as a facet of the freedoms of association and collective bargaining.

CORE CONTENT OF THE RIGHT TO STRIKE UNDER ILO JURISPRUDENCE AND INTERNATIONAL LAW There are several principal features of the right to strike as espoused by the ILO Freedom of Association Committee. These include: the right is primarily for employees; wide definition and extent of the right; the centrality of trade unions in the exercise of the right; broad purposes for the exercise of the right; permissible substantive and procedural limitations on the right; and protection for strikers. We look at each of these in greater detail below.

A RIGHT PRIMARILY MEANT FOR EMPLOYEES One of the fundamental facets of the right to strike is that it is primarily for the benefit of employees as a collective. It is a crucial tool or lifeline through which workers and their organisations may promote and defend their economic and social interests.44 The primary agent for the exercise of the right are trade unions and other forms of organised labour. Such bodies, should in the interest of effective collective bargaining, be allowed to call for strikes without undue prohibitions.45 The right to strike is for employees and not employers. Neither is the lock-out the equivalent of the strike. The explicit recognition of the right to strike for employees and its implied superiority over the right of lock out for employers is justified. This is proper, for as has been observed, the lock–out is “neither socially nor legally equivalent to the strike.”46 The strike is necessarily always a concerted act, whereas a lockout need not. A single employer can lockout whereas a single worker cannot go on strike. The lockout is

44 Para 521, 522 and 531 of the Digest . 45 Para 525 . 46 A Rycroft and B Jordaan op cit at 142 and Davies and Freedland op cit at 292. UZLJ The Right to Strike in Zimbabwe 45 not the most important power of the employers. The real equivalent to the strike, is the employer’s right to own, manage or dispose of the business, to appropriate profits and to dismiss the employee. The giving of primary, but not exclusive, responsibility to trade unions to call strikes does not offend against principles of freedom of association for on the part of employees, given the purpose of strikes. Strikes are an essential part of the collective bargaining process, which are seen as legitimate economic weapon at the hands of labour to advance its cause in the collective bargaining process. Collective bargaining, as its name implies, is always and inherently a collective exercise for the employees.47 Without such collective agency the right loses its potency.

BROAD PURPOSE OF THE RIGHT TO STRIKE The second core attribute is that strikes are for a broad set of purposes. Legitimate objectives must not only be confined to disputes over traditional and mundane issues such as wages, working hours and claims of an occupational nature but the dragnet is wide enough to encompass a cocktail of social and economic policy questions that impact on employees.48 Thus, so broadly defined, legitimate objectives of strikes encompass a wide range of issues, including economic and social issues. Solidarity with other strikers is also a permissible objective.49 Strikes may thus be used as defensive shields to safeguard rights as well as offensive arrows to win new rights or used as solidarity tools. Note however that the Digest supports the proscription of purely political and putative strikes.50 This expresses the tension in bourgeois pluralist theories of labour relations. Whilst perfectly happy to accept strikes as a legitimate tool in collective bargaining, they brittle at the extension of this as a purely class political tool used by the working class, potentially against the entire capitalist mode of production

47 Para 524. See also Kahn-Freund (1970). 48 Paras 526-527. 49 Paras 526-544. 50 Paras 528-529 Digest. 46 University of Zimbabwe Law Journal 2018 and state. Lenin captures this aptly.51 Strikes of a political nature remain legitimate only to the extent that they relate to government economic and social policies which impact on the workers as workers, and not as general citizens.

PROHIBITION OF EXCESSIVE STATE INTERFERENCE The state must not engage in undue and excessive interference with the right to strike, in particular abuse of its coercive and judicial power. In tandem with the principles of fairness, the responsibility to declare strikes illegal, should not lie with the government as an interested party but should be the exclusive preserve of an independent and impartial body.52 The use of military or the police to ward off a strike militates against the conventions although the police are allowed to maintain peace and order without breaking the strike.53 Violent strikes may similarly be proscribed. Similarly forcing striking employees back to work or resort to military force to quell a strike gravely infringes upon the right to strike. The use of armed forces to take over the responsibility of striking employees is only permissible in exceptional circumstances motivated by the need to maintain core services.54

PERMISSIBLE LIMITATIONS ON THE RIGHT TO STRIKE ILO jurisprudence does not provide for an absolute right to strike. Substantive and procedural restrictions on the right

51 “A strike opens the eyes of the workers to the nature not only of the capitalist but of the government and laws as well. Just as factory owners try to pose as benefactors of workers, the government officials and their lackeys try to assure the workers that the government is equally solicitous of both the factory owners and the workers as justice requires. Then comes a strike. The public prosecutor, the factory inspector, the police and frequently the troops appear at the factory. The workers learn that they have violated the law.” V I Lenin Selected Works 372. See also R Hyman “Pluralism, procedural consensus and collective bargaining” 16 BJIR (1978) 16 . 52 Paras 628-631. 53 Paras 642-647. 54 Paras 632-639. UZLJ The Right to Strike in Zimbabwe 47 are accepted in various situations, including: in relation to essential services, to members of the armed forces, employees of the State and pertaining to disputes of right or disputes covered by a current collective bargaining agreement or arbitration.

PERMISSIBLE SUBSTANTIVE LIMITATIONS There are several substantive limitations on the right to strike recognised under ILO jurisprudence. This effectively means the right to strike is excluded for these categories.

ESSENTIAL SERVICES The absolute restriction on the right to strike in the interests of peace or for the maintenance of essential service is legitimate under ILO jurisprudence.55 Pluralist theories of labour relations justify this restriction on the need to strike a balance between the workers’ right to strike on the one hand and the maintenance of minimum services essential for society, on the other. Marxist theories on the other hand point out to this as an expression of the class partisan character of labour law and the class limitations of pluralism, whereby the most potent forms of strikes that may hurt the bourgeois ruling class, economically or politically are prescribed.56 The above restriction though, is strictly applied and reciprocated by compensatory guarantees. The definition of essential service should not be too broad such as to create a blanket ban on the right to strike for a certain category of employees who ordinarily cannot be construed as essential service employees.57 The SADC Charter provides that the definition of essential services is not left to the state alone but “mutually defined and agreed upon by governments, employers associations and trade unions.”58 An example is under s 70 of the South African Labour Relations Act, 199559

55 Paras 545-563 and paras 615-627 Digest. 56 I Kiseylov (1988) 95 - 114. 57 Article 4 (g) of the SADC Charter provides that: “essential services and their parameters shall mutually be defined and agreed upon by governments, employers associations and trade unions.”. 58 Article 4 (g) SADC Charter. 59 Act 66 of 1995 (66/1995). 48 University of Zimbabwe Law Journal 2018 in terms of which the function of determining whether a service is an essential one lies with a tripartite committee deemed the “Essential Services Committee.” Where the right to strike is proscribed on the grounds of essential services, adequate compensatory provisions must be made including appropriate and easily accessible machinery for quick resolution of disputes, including arbitration.60

EMPLOYEES OF THE STATE AND MEMBERS OF THE ARMED FORCES The Digest recognises the proscription of the right to strike for various categories of employees of the State, including members of armed forces and members of the Public Service.61 Russian Marxist, VI Lenin argues that the State broken down to its essential “consists of special bodies of armed men...a ‘special repressive force’ for the suppression of the oppressed class.”62 Yet the bulk of these special bodies of armed forces are members of the lower classes – workers and peasants in uniform. In times of acute social conflict, strikes by soldiers could easily turn into revolutionary armed social and class conflicts, threatening the entire capitalist society. Not surprising therefore labour law, including under international labour standards, has historically excluded this section of the working class, from enjoying the right. It remains so under ILO jurisprudence, whose applicable conventions generally leave the discretion to national laws and practices to determine the extent of application of the rights to organise, collective bargaining and to strike.63 And in general the practise in most nations is to exclude members of the armed forces.64

60 Paras 570-603. See also article 4 (g) (h) of the SADC Charter viz essential services. The Charter does not proscribe strikes by members of the public service per se. 61 Paras 545 - 563. 62 V I Lenin State and Revolution (2002)10, 18. 63 For instance under ILO 087 Convention [art. 9 (1) ]; ILO 098 Convention [art 5]; ILO 154 Convention [art 1(2)] . 64 In South Africa see s 2 as read with s 64 (1) Labour Relations Act, 1995; Malawi s 3 as read with s 46 Labour Relations Act, 1996 (16/ 1996). UZLJ The Right to Strike in Zimbabwe 49

On the other hand the situation in relation to the other employees of the State, in particular members of the Public Service has been more controversial and flexible. Earlier ILO and international and national instruments treated such employees in the same way as members of the armed forces, leaving the discretion to national laws.65 The Labour Relations (Public Service) Convention, 1951 puts emphasis on alternative dispute resolution mechanisms like negotiations, conciliation, mediation and arbitration and does not specify a right to strike.66 If anything potential restriction if not prohibition is implied in article 9, which reads: Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions. Over time, though, labour law has gradually conceded the right to strike to the ordinary employees of the State.67 For instance the Labour Relations (Public Service) Convention potentially allows for the right to strike for employees whose status and the nature of their job may not be deemed to exclude them from such rights. These may include employees engaged in essential services or “high level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature.” 68 The convention further stipulates that special modalities should be set up to facilitate the rights of civil servants to collective bargaining.69 In any case the principal conventions do not contain an absolute bar on including civil servants but leaves it to the discretion of national laws. The SADC Charter does not proscribe the right to strike of members of the Public Service. Depending on the strength of the working class in different countries, the right to organise for civil servants has been

65 See articles referred to in Footnote 63, ibid. 66 Article 8 ILO 154 Convention . 67 ILO General Survey Report 111 (IB) [2013]. 68 Article 1(2) ILO 154 Convention. See also art. 6, ILO 098 Convention. 69 See art 1 (3) ILO 154 Convention. 50 University of Zimbabwe Law Journal 2018 won in an increasing number of countries reflecting a growing convergence and harmonisation between private sector and public sector laws.70

DISPUTES OF RIGHT, COLLECTIVE BARGAINING AGREEMENTS AND ARBITRATION The prohibition of the right to strike in a dispute where a solution can be provided by competent courts of law is accepted under ILO jurisprudence.71 This is what is commonly referred to as a dispute of right, which pluralists argue can best be resolved through adjudication as opposed to power based resolution premised on a strike. A class conflict perspective sees this though as an attempt by dominant elites to instutionalise and channel labour disputes into acceptable mechanisms which do not fundamentally threaten the prevailing capitalist mode of production.72 Strikes may also be prohibited in circumstances of the existence of a current collective bargaining agreement between the parties, and which prohibits the going on strike before the expiry of the agreement.73 The existence of a collective agreement should not per se, preclude the right to strike for top ups but where a prohibition exists, there is need for workers to have access to an effective and expeditious dispute resolution mechanisms to deal with any impasse between the employer and the affected workers.74 Protest strikes over prolonged non-payment of salaries by the Government are fully recognised.75 The use of compulsory arbitration as a moratorium to end a strike is permissible if done at the instance of both parties or in situations where the strike is outlawed.76 The rationale for a preceding agreement of the parties to submit to compulsory arbitration is to ensure that the voluntary

70 See the constitutions of: South Africa [ s 23 92) ]; Kenya [art 41]; Uganda [art. 40 (3) ]. 71 Para 532 Digest. 72 I Kiselyov (1988) 57. 73 Para 533 Digest. 74 Ibid. 75 Para 537. 76 Paras 564-569. UZLJ The Right to Strike in Zimbabwe 51 autonomy of the parties is preserved to avoid a situation where parties feel that the arbitration process has been imposed on them thereby potentially creating a fertile ground for resentment and consequent escalation of the dispute.

PROCEDURAL LIMITATIONS In addition to the above substantive limitations on the right to strike, ILO jurisprudence also recognises several procedural limitations or formalities that may be imposed on the exercise of the right, but subject to certain conditions. Firstly authorities may impose formalities before exercise of the right such as a requirement of a notice period, the balloting of members or requiring parties to first undergo conciliation proceedings. However, the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations.77 The legal procedures for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike.78

MANDATORY SECRET BALLOTS ILO jurisprudence recognises the imposition of a requirement for secret ballots of employees before going on strikes including that a certain quorum be present.79 What may be problematic however, are requirements that an absolute majority of workers should be obtained for the calling of a strike. This may be inferred as involving the risk of seriously limiting the right to strike.80 Similarly a provision requiring the agreement of the majority of members of federations and confederations, or the approval by the absolute majority of the workers of the undertaking

77 paras 547 Digest. 78 para 548. 79 para 559. 80 para 557 . 52 University of Zimbabwe Law Journal 2018 concerned for the calling of a strike, may constitute a serious limitation on the activities of trade union organizations.81 .

CONCILIATION AND ARBITRATION REQUIREMENTS In general a decision to suspend a strike for a reasonable period so as to allow parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association.82 In as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service or essential services in the strict sense of the term.83 A provision which permits either party unilaterally to request the intervention of the labour authority to resolve a dispute may effectively undermine the right of workers to call a strike and does not promote voluntary collective bargaining.84

PROTECTION OF STRIKERS The right to strike encompasses various protections to be accorded strikers, in some circumstances extending to those participating in unlawful strikes. Workers who participate in a lawful strike enjoy maximum protection from reprisals. Saddling striking employees or trade union with unduly burdensome sanctions consequent to a strike flies in the face of ILO principles.85 Except in circumstances of an essential service, gap filling to replace striking employees militates against the notions of the right to strike and is proscribed.86 Subtle punishment for striking employees which can take the form of dismissal, demotion or reduction of salaries is anathema to the Conventions.87

81 para 561. 82 para 550. 83 para 565. 84 Para 566 Digest. 85 paras 658-666. 86 Para 632. 87 Paras 654,658,661 & 674 Digest. UZLJ The Right to Strike in Zimbabwe 53

To curb the effects of unruly elements, the conventions recognise that legal bridles can be put in place to punish those who abuse the right to strike but such punishment should not be unduly harsh and excessive but should be proportionate to the offence or fault committed and the drastic penalty of imprisonment should not be resorted to.88 Under the principle of “no work no pay”, the deduction of wages for the duration of the strike is permissible,89 with the caveat that such deductions should not be higher than the period of the strike. Pickets are recognised to the extent that they do not disturb public order.90

RIGHT TO STRIKE UNDER THE LABOUR ACT AND CONSTITUTION The new Constitution has profound implications on the right to strike as currently provided under the Labour Act. We critique the current regime under the Labour Act in the context of the provisions of the new Constitution and international law, in particular ILO jurisprudence.

DEFINITION AND EXTENT OF RIGHT Under Zimbabwean law, the legal basis for the right to strike is provided for under statutes and the Constitution. Prior to the 2013 Constitution, the sole basis of the right was in terms of the Labour Act. The courts had adopted the unitarist approach and rejected the functional approach position that the freedom of association encompassed the right to strike.91 Under the Labour Act, a considerably restricted right to strike exists, compared to the new Constitution and international law. Section 104 (1) of the Labour Act provides for a right to collective job action, in the following terms: Subject to this Act, all employees, workers committees and trade unions shall have the right to resort to collective job action to resolve disputes of interest.

88 Paras 667-670 . 89 paras 654-657. 90 paras 648-653. 91 Zimbabwe Banking and Allied Workers Union & Anor v Beverly Building Society & Ors 2007 (2) ZLR 117 (H). 54 University of Zimbabwe Law Journal 2018

The right is specified as for “employees, workers committee and trade unions.” It does not mention employers and employer’s organizations. This is consistent with the international paradigm discussed above. It is also consistent with s 65 (3) of the Constitution which extends the right to “every employee.” However, s 104 (1) of the Labour Act is restrictive compared to s 65 (3) of the Constitution and international labour standards. This is at several levels. Firstly the Act specifically conditions the right as being exercisable only in relation “to resolve disputes of interest.” The constitutional provision is broader. It establishes a right to participate in collective job action without restricting the purpose for which the collective job action may be exercised for. The Constitution therefore potentially allows for a very broad range of lawful and legitimate purposes for which strikes and collective job action may be done for, including work, economic, social or even political objectives. This is consistent with ILO jurisprudence on the permissible objectives of the right to strike.92 To the above extent it can be strongly argued that s 101 (1) of the Labour Act is unduly restrictive and ultra vires s 65 (3) of the Constitution. The restriction of collective action to disputes of interest only is excessive and unlikely to be saved under s 86 of the Constitution. A comparable position is under the South African labour legislation, where the wording of the right is broader93 and there is also inclusion of the right to protest action to protect socio-economic interests.94 The second level of difference is in relation to the definition of “collective job action.” Under the Labour Act, collective job action is defined as:95 an industrial action calculated to persuade or cause a party to an employment relationship to accede to a demand related to employment, and includes a strike, boycott, lockout, sit-in or sit-out, or other such concerted action.

92 Para 526 Digest. 93 See s 64 (1) Labour Relations Act, 1995 (SA). 94 Section 77 Labour Relations, 1995 (SA). 95 Section 2 Labour Act. UZLJ The Right to Strike in Zimbabwe 55

The above definition restricts the right to strike only to demands “related to employment” and in relation to “a party to an employment relationship.” This means socio-economic or political demands which are not directly related to the employer are excluded, whereas the same are permissible under the ILO framework. Secondary strikes would also be excluded. In South Africa such secondary strikes are permissible.96 The definition also excludes general protest action to promote or defend socio-economic interests of workers, such as the stayaways of the late 1990s or what is termed the right to protest action under South African labour legislation.97 Despite this limitation in the Labour Act, it can be strongly argued that Zimbabwean law now includes the right to secondary strike and to strike for socio-economic-political demands not directly related to an employer. This is because of the wide definition of the right to collective job action under s 65 (3) of the Constitution.98 A protest action or stayaway or a secondary strike is a form of concerted action, as stated under s 65 (3) of the Constitution. Using the appropriate provisions of the Constitution99 , s 65 (3) of the Constitution may be interpreted in terms of relevant international law provisions that recognise secondary strikes and socio-economic strikes as legitimate expressions of the right to strike. Exclusion of these under the Labour Act can therefore be argued to be ultra vires the letter and spirit of the Constitution. Neither may such limitation be saved under s 86 of the Constitution as being inconsistent with the norms of a democratic society, as shown in applicable international law norms. The final level relates to the scope of employees and trade unions covered. In terms of s 104 (3) (c ) no collective job action may be recommended or engaged in by “any trade union, employer’s organisation or federation unless the trade union, employers organisation or federation is registered.”

96 See s 66 (1) Labour Relations Act, 1995 (SA). 97 Section 77 (1) Labour Relations Act, 1995 (SA). 98 See section 65(3) of the Constitution . 99 Section 46 (1) (c ) as read with s 327 (6) of the Constitution. 56 University of Zimbabwe Law Journal 2018

This provision is bolstered by s 30 (3) (a) which stipulates that no unregistered trade union may recommend collective job action. This substantive restriction on unregistered trade unions is not provided for under s 65 (1) of the Constitution. The Constitution gives a very broad right to form and join trade unions and to participate in the lawful activities of those unions and organisations.100 Neither the right to organise nor to engage in collective job action is subjected to the registration requirement under the Constitution. When consideration is made to the very substantive infringements to the autonomy of unions and organisations to run their affairs under the guise of registration, the ominous character of the registration requirement becomes patently clear. Constitutions of registered unions are required to provide for the prohibition of union dues for political purposes.101 The Minister is given excessive powers to regulate the use of union dues by registered trade unions102 as well as the election of union officials.103 The registration procedure has become a means through which the State has extended its intervention in the internal affairs of trade unions in a manner inconsistent with fundamental ILO conventions or the broad right given by the Constitution.104 The second consideration is that the right to strike is extended to all employees under s 65 (3) of the Constitution other than members of the security services, whereas the Labour Act does not apply to members of the Public Service and employees whose conditions of employment are provided for in the Constitution.105

100 Section 65 (2) Constitution. 101 Section 35 (c ) Labour Act. 102 Sections 52, 54 and 55 Labour Act. 103 Section 51 Labour Act. 104 The right to independence of trade unions and workers organisations to run their affairs, establish their own rules and constitutions and to protection from interference by the state and employers, including arbitrary suspension or dissolution, is sacrosanct under the ILO conventions. See articles 2, 3, 4 and 5 ILO 087 Convention; art. 5 ILO 151 Convention, and articles 6 and 9 ILO 151 Convention. 105 Section 3 Labour Act. UZLJ The Right to Strike in Zimbabwe 57

SUBSTANTIVE LIMITATIONS ON THE RIGHT TO STRIKE There are similarities as well as differences on the substantive restrictions placed on the right to strike under the Labour Act and the new Constitution and international law.

RESTRICTIONS ON ESSENTIAL SERVICES Under the Labour Act, strikes are prohibited in essential services.106 Essential services means any service - ... the interpretation of which endangers immediately the life, personal safety or health of the whole or any part of the public; and …that is declared by notice in the Gazette made by the Minister, after consultation with the appropriate advisory council, if any, appointed under s 19, to be an essential service.107 The following services are designated as essential: 108 ... services relating to fire brigade; distribution of water; veterinary services; revenue specialists involved in the performance of security and health checks at airports; certain areas in health and electricity services and a public broadcaster during a state of disaster. The above framework under the Labour Act is substantially consistent with s 65 (3) of the Constitution which provides that a law may restrict the exercise of the right in order to maintain essential services. It is also generally consistent with the parameters set under international law.109 There are still some areas of contention. Under international law, the declaration of a service as an essential service should not be the sole prerogative of the State, but of a body representing the State, labour and business. The Labour Act reposes the power to do so on the Minister of Labour. There is

106 Section 104 (3) (a)(i) Labour Act. See also Tel-One (PVT) Ltd v Communications & Allied Services Workers Union 2006 (2) ZLR 136 (S) at 149C; and Rutunga & Ors v Chiredzi Town Council & Anor S-117-02. 107 Section 102 Labour Act. 108 s 2 Labour (Declaration of Essential Services) Notice S I 137/ 2003. 109 See para 596 Digest. 58 University of Zimbabwe Law Journal 2018 no independent committee to determine what constitutes an essential service as the Minister is given an open cheque to do so. At most she or he is required to consult an advisory council. Further the Notice gives the Minister sole authority to declare any non-essential service as an essential service, “if a strike in a sector ... persists to the point that the lives, personal safety or health of the whole or part of the population is endangered.”110 An interpretation of s 65 (3) of the Constitution, using the international and regional framework, indicates that the authority to declare a service an essential one, should not rest with the State alone. Consistent with international law standards, where a dispute pertains to a dispute of interest and the parties are engaged in an essential service and a labour officer or designated agent has failed to successfully settle the dispute by conciliation, it is peremptory that the dispute should be referred to compulsory arbitration.111 This jells with the ILO Experts’ recommendation that employees in essential services who are deprived the right to strike be afforded impartial and speedy conciliation and arbitration.112 Note that a similar provision applies in relation to a deadlock in negotiations in the Public Service, wherein the dispute should be referred for compulsory arbitration. 113 However, in view of the fact that members of the Public Service now enjoy the right to collective job action,

110 Section 3 S I 137/2003. 111 See section 93(5) of the Labour Act; After a labour officer has issued a certificate of no settlement, the labour officer upon consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to settle the dispute or unfair labour practice-. (a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the a parties are engaged in an essential service; or. (b) may, with the agreement of the parties, refer the dispute or unfair labour practice to arbitration; or. (c) may refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right. 112 Para 596 Digest. 113 Public Service (Public Service Joint Negotiations Council) Regulations, S I 141/1997. UZLJ The Right to Strike in Zimbabwe 59 it may well be argued that this provision has become ultra vires s 65 (3) of the new Constitution. The restriction to strike in essential services is not absolute. Section 65 (3) of the Constitution merely provides for a law that may restrict the exercise of the right in essential services. As currently formulated the Labour Act broadly restricts the right in relation to essential services, but explicitly provides an exception under s 104 (4). In terms of this a partial strike is permissible in an essential service, where there is an occupational hazard which presents an impending threat to the health or safety of workers114 and in defence of an immediate threat to the existence of a workers committee or registered trade union.115

EMPLOYEES OF THE STATE AND MEMBERS OF ARMED FORCES The artificial divide between public and private sector employees has been demolished by the Constitutional provisions that extend the right to strike to both private and public sector employees. Section 65 (3) of the Constitution excludes only members of the security services from enjoyment of the right to collective job action. This position is reinforced by other provisions of the Constitution establishing the right to organise and collective bargaining for every employee, including members of the Public Service, with the only excluded group of workers being members of the security services.116 To bring the Labour Act into conformity with the Constitution, section 3 has to be amended to remove the provisions excluding members of the Public Service. The provisions of the Labour Act excluding application of the Act to members of a disciplined force, including in the

114 See section 104(4)(a) of the Labour Act. 115 See section 104(4)(b) of the Labour Act, see also the Supreme Court of Zimbabwe decision in First Mutual Life Assurance v Muzivi S-62-03 wherein the court upheld the strike as lawful due to not only a direct threat to the existence of a workers committee but a direct attack on the workers committee after the employer demoted members of the concerned workers committee. 116 Section 65 (5) as read with section 203 (1) (b) of the Constitution. 60 University of Zimbabwe Law Journal 2018 enjoyment of the right to strike, therefore remain intra vires the new Constitution. As already pointed out the same restriction is permissible under ILO jurisprudence.

DISPUTES OF RIGHT AND DISPUTES OF INTEREST Under the Labour Act, the most remarkable substantive limitation on the right to strike finds its fullest expression in the dichotomy between disputes of right and disputes of interest. The right to strike only exists in respect of disputes of interest which fall to be determined by power games but it does not exist for disputes of right which should be resolved by formal disputes resolution systems.117 A dispute of interest, sometimes called “economic dispute,” concerns the creation of fresh rights, such as higher wages or modification of existing collective bargaining agreements.118 On the other hand, a dispute of right entails a determination on the existence or otherwise of a legal right or obligation flowing from legislation, collective agreements, contracts of employment or any other recognised source of law.119 The distinction between disputes of right and disputes of interest and the requirement that disputes of right be resolved via adjudication does not violate ILO principles.120 The same trend is observed in other jurisdictions, for instance under South African legislation. 121

117 See section 104(3)(a)(ii) of the Labour Act. See CSWUZ v Tel-One (Pvt) Ltd HH-91-05; Zimbabwe Graphical Workers Union v Federation of Master Printers of Zimbabwe & Anor 2007 (2) ZLR 103 (S). 118 A Rycroft and B Jordaan (1992) 169 and cited with approval in Zimbabwe Graphical Workers Union v Federation of Master Printers of Zimbabwe & Anor 2007 92) ZLR 103 (S) at 109F-H. 119 Section 2 of the Labour Act defines a dispute of right as meaning: . “any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act or of any regulations made under this Act, or a breach or alleged breach of any of the terms of a collective bargaining agreement or contract of employment.”. 120 Para 532 Digest. 121 This seems implied in section 65 (1) Labour Relations Act 1995 (SA) which prohibits the going on strike if the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court. UZLJ The Right to Strike in Zimbabwe 61

The question remains nonetheless of the validity of this restriction, given that it is not expressly provided for in s 65 (3) of the Constitution. Those in favour of such limitation may possibly justify it as a limitation reasonably justifiable in a democratic society.122 Reference can be made to the ILO jurisprudence providing for the same as well as provisions in other jurisdictions, notably that of South Africa. Perhaps the underlying theoretical basis being that the right to strike is not an end in itself but a means to an end of achieving effective collective bargaining. If effective mechanisms for achieving rights exist why not allow those. However, we submit that this is an unduly restrictive view of the right to strike, in particular given the broad objectives that underlie the right. It is both an offensive arrow, necessary in creating fresh rights, as well as a defensive shield to protect and enforce rights. This is recognised to a limited extent in section 104 (4) providing the fullest right to strike in defence of the right to organise or in the face of an immediate occupational hazard. Given that there is no constitutional basis for the distinction between disputes of right and disputes of interest, it is not legitimate to maintain this distinction under the Labour Act. Moreover, the distinction was only explicitly brought into the law by Act No. 17 of 2002.

ARBITRATION AND COLLECTIVE BARGAINING AGREEMENTS RESTRICTIONS Another level of restriction pertains to arbitration. Once a dispute is referred to arbitration, the door for the right to strike is firmly shut, as the Labour Act prohibits the going on collective job action in such circumstances.123 The autonomy of the parties is eroded by an Arbitrator who is imposed to adjudicate over the dispute by the State under the guise of compulsory arbitration and this is undesirable. Zimbabwean law does not expressly provide for peace obligations but allows parties to graft in an exclusive dispute

122 Under s 86 (2) Constitution. 123 Section 104(3)(a)(iii) of the Labour Act. The same is stipulated in relation to compulsory arbitration — s 98 of the Act. Also - Chisvo and Ors v Aurex (Pvt) Ltd 1999 (2) ZLR 334. 62 University of Zimbabwe Law Journal 2018 resolution mechanism in their collective bargaining agreement and once that is agreed, it precludes the right to strike.124

PROCEDURAL LIMITATIONS ON THE RIGHT TO STRIKE The exercise of the right to strike under the Labour Act, is encumbered by various procedural limitations, some of which may run afoul of the broad right granted under s 65 (3) of the Constitution and the precepts of ILO standards. Some of the main procedural limitations include the requirements for: notice; a conciliation certificate of no settlement; a secret ballot, and union approval before employees or a workers committee engage in collective job action. Failure to comply with these formalities has been held to render a strike unlawful and thereby depriving the employees of the statutory protection.125

NOTICE REQUIREMENT The major procedural barriers to the right to strike include the requirement to give fourteen days written notice to the party against whom the action is taken, to the employment council and the appropriate trade union or employers organisation or federation.126 The courts have held that failure to reduce the notice into writing and to give it to the appropriate party is fatal to the validity of the strike.127 Where a notice is issued and the union does not embark on the strike within a reasonable period, the union may have to issue a

124 Section 82(4) of the Labour Act which states: “if a registered collective bargaining agreement provides a procedure for the conciliation and arbitration of any category of dispute, that procedure is the exclusive procedure for the determination of disputes within that category.”. 125 See ZimPost (Pvt) Ltd v Communications and Allied Workers Union 2009 (1) ZLR 334 (S) at 338C; and Net* One Cellular (Pvt) Ltd v Communications and Allied Workers Union S 89/05. 126 Section 104(2) of the Labour Act. 127 See Moyo v Central African Batteries(Pvt) Ltd 2002 (1) ZLR 615(S); Rutunga & Ors v Chiredzi Town Council & Anor S-117-02; Mukundwi and 42 Others v Chikomba Rural District Council LC/H/01/05; Cole Chandler Agencies (Pvt) Ltd v Twenty-five named employees S-161- 98. UZLJ The Right to Strike in Zimbabwe 63 fresh notice otherwise the strike may be also be held to be unlawful.128 The fourteen days written notice to go on strike is too excessive and will only serve to deflect and deflate the right to strike which is granted under s 65 (3) of the Constitution. These procedural hindrances in the form of an unreasonably long notice to engage on a strike run counter to the ILO requirements on the right to strike.129 Comparatively the period in South Africa is 48 hours,130 and seven days in the UK.131 The Labour Act provides for the precondition that an attempt should have been made to resolve the dispute via conciliation and a certificate of no settlement issued before parties engage in collective job action.132 The need for conciliation to precede resort to strike effectively renders the right to strike difficult to assert because in practice, the conciliation process can last for a period ranging from 30 days133 to a period ad infinitum if the conciliation is extended.134 In terms of the Digest a decision to suspend a strike for a reasonable period so as to allow parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association.135 The requirement under the Labour Act compelling conciliation before a party can engage in a strike, is therefore not per se in violation of the ILO jurisprudence. However, the 30 days long period of conciliation potentially may be unduly long and problematic. It means the momentum

128 Cole Chandler Agencies (Pvt) Ltd v Twenty-five named employees S- 161-98; Zimbabwe Graphical Workers Union v Federation of Master Printers of Zimbabwe and Anor 2007 (2) ZLR 103 (S) at 114D-E. 129 Paras 547-548 Digest. 130 Section 64 (1) (b) Labour Relations Act, 1995 (South Africa). 131 Trade Union and Labour Relations (Consolidation) Act 1992, s 238; S Deakin & G S Morris Labour Law 4th (ed) (2005) 1006. 132 Section 104(2)(b) of the Labour Act; Zimbabwe Graphical Workers Union v Federation of Master Printers of Zimbabwe and Anor 2007 (2) ZLR 103 (S). 133 Section 93(3) Labour Act. 134 Section 93(4) Labour Act. 135 Para 550 Digest. 64 University of Zimbabwe Law Journal 2018 for a strike falls away, the longer the period from the initial time when the workers went on strike. The thirty days conciliation period in Zimbabwean law is a copy-cat of the South African provision,136 but one that may still nonetheless be held to be unconstitutional because of its effect of unduly diluting the right to strike granted under s 65 (3) of the Constitution.

SECRET BALLOT BY MAJORITY OF EMPLOYEES No collective job action may be recommended or engaged in by “any workers committee, trade union or employers organisation, except with the agreement of the majority of the employees or employers, as the case may be, voting by secret ballot.”137 The provision therefore entails two requirements, namely a secret ballot and secondly approval by a majority of employees, thereby rendering a strike by a minority of employees illegal. The secret ballot must be conducted before the expiry of the notice, done at the workplace and there must be a letter by the chairperson and secretary of the workers committee or trade union secretary general to the employees detailing the reasons for the ballot and strike.138 The voting must be done in the presence of a labour officer or designated agent, who shall count and record the results.139 The secret ballot requirement is one which is not provided for in s 65 of the Constitution. The question is whether such requirement or limitation may be held to “fair, reasonable, necessary and justifiable in a democratic society ...” per s 86 of the Constitution. Note is taken that under ILO jurisprudence the obligation to observe a certain quorum and to take strike decisions by secret ballot may be considered acceptable.140 However, a provision requiring the agreement of the majority of members of federations and confederations, or the approval by the absolute majority of the workers of the undertaking

136 Section 64 (2) Labour Relations Act (SA) . 137 Section 104 (3) (e). 138 Section 8 Labour (Settlement of Disputes) Regulations S I 217/2003. 139 Ibid s 8 (5) . 140 para 559. UZLJ The Right to Strike in Zimbabwe 65 concerned for the calling of a strike, may constitute a serious limitation on the activities of trade union organizations.141 The requirement under s 104 (3) (e) of the Labour Act for a majority mandate by secret ballot therefore goes beyond what is acceptable under ILO conventions. Given that s 65 of the Constitution does not provide such restrictions, these provisions my therefore be held overbroad and unacceptable in a democratic society. In any case the history of the secret ballot provision in our law lies in repressive colonial ethos that sought to suppress the rising black working class.142 Further the imposition of the labour officer or designated agent as effectively the presiding officers of the secret ballot is too intrusive and potentially gives such officials too much power to influence the course of events in their preferred direction. A better scenario consistent with the broad right guaranteed under the Constitution is one whereby the requirement for a secret ballot especially with such intrusive state intervention is held to be ultra vires the Constitution. There is nothing inherent about the need for a secret ballot before exercise of the right to strike and in many democratic jurisdictions indeed there is no such requirement in labour legislation for instance South Africa. We also submit that the requirement for majority approval of a strike can no longer stand in the face of s 65(3) of the Constitution which expressly confers the right to strike to “every employee...” This would seem to grant any collective of employees the right to strike, even if it is a minority. The fact that that the right to strike is now conferred as a fundamental right under the national constitution shows that the Zimbabwean position is now one based on the “individualist’ right” approach. This is whereby the right to strike is seen as an inherent human right exercisable by individuals, albeit exercised on a collective basis.143

141 para 561. 142 It was first introduced in terms of s 47 (1)n Industrial Conciliation Act, 1959. 143 S Deakin & G Morris op cit at 966. The authors cite France and Italy as examples of countries following such approach. 66 University of Zimbabwe Law Journal 2018

This is opposed to the “organic” approach whereby the right is seen as an essential ancillary to collective bargaining and the right therefore essentially located in trade unions. It may be argued that this was the position under the Labour Relations Act, thereby giving registered unions the power to approve strikes by employees and workers committees.144 In view of the new constitutional basis of the right, the provisions of the Act may well be argued to be too excessive and intrusive and inconsistent with the broad right granted under the Constitution. Such a provision was consistent with the state corporatist basis of previous legislation which favoured the one industry one union model, but is hardly workable in the pluralist based model of the Labour Act and s 65 of the Constitution, both of which provide for a multiplicity of unions. So far no test cases have been taken to the Constitutional Court of Zimbabwe to impugn the various procedural humps to a strike provided under the Labour Act and regulations, but if that is done, the Court should be guided by the interpretation provisions of the new Constitution which inter alia call on the courts to give full effect to the rights and freedoms enshrined in the Declaration of Rights.145

PROTECTION AND PRIVILEGES OF LAWFUL STRIKERS A central issue in strike law is the dual-laced one of the protection granted to employees who engage in lawful strikes and the sanctions against those who engage in unlawful strikes. Currently Zimbabwean law provides various protections and privileges to the former,146 and simultaneously, severe and harsh sanctions, against those who engage in unlawful strikes. The validity of the sanctions against unlawful strikers is an area that needs to be quizzed in terms of international law and the new constitution. Employees who engage in a lawful strike are accorded several protections and privileges. First the employees enjoy immunity from dismissal or other disciplinary action.147 In the same vein,

144 Section 104 (3) (b) Labour Act. 145 Section 46 (1) Constitution . 146 See section 108 Labour Act. 147 Section 108(3) Labour Act. Tel-One (Pvt) Ltd v CASWUZ 2006 (2) ZLR 136 (S) at 145A-B. UZLJ The Right to Strike in Zimbabwe 67 the law protects both individuals and organisations from civil liability consequent to a lawful strike, including the right not to be interdicted or be subjected to a show cause order.148 However, it is important to note that an employee who participates in a lawful strike loses an entitlement to get remuneration from the employer,149 other than remuneration in the form of accommodation, food and other basic amenities which the employee is entitled to continue receiving during the strike, subject to the right of the employer to recover the costs of the same by action in the Labour Court.150 If an employer locks out an employee, that employer is barred from employing another person to perform the duties of an employee who falls prey to a lockout.151 Employees in a lawful strike are allowed to picket in support of their action at the premises of the employer or any other public place.152 The right to picket under the Labour Act overrides “any other law regulating the right of assembly”, such that the strikers do not for instance require to get prior police approval for a picket, as would be otherwise required under the Public Order and Security Act.153 The requirement for a picket to be done peacefully bodes well with ILO requirements.154 The only area of contention may be the current limitation that the right to picket is reserved only for a registered trade union or workers committee,155 which may be inconsistent with the broad right to strike guaranteed under s 65 (3) of the Constitution.

148 Section 108(2) Labour Act. Mpumela v Cargo Carriers International (Pvt) Ltd LC/H/206/2009. 149 Section 108(4) Labour Act. 150 Section 108 (4) Labour Act; and Communication and Allied Services Workers Union of Zimbabwe v ZIMPOST & Anor LC/H/68/2004. 151 Section 108(5) Labour Act. 152 Section 104A(3) Labour Act. 153 Section 24 (5) as read with Item (j) of the Schedule to the Public Order and Security Act [Chapter 11:17] as affirmed in ZCTU v Officer Commanding, Police Kwe Kwe & Ors HB-90-10; ZCTU v Officer Commanding, ZRP, Harare 2002 (1) ZLR 323 (H). 154 Para 667 Digest. 155 See s 104A(2) Labour Act, which states: “A registered trade union or workers committee may authorise a picket.”. 68 University of Zimbabwe Law Journal 2018

SANCTIONS, DISCIPLINE AND DISMISSAL FOR UNLAWFUL STRIKES Historically, there was very little protection of employees engaged in unlawful strikes. Such act constituted gross misconduct under the common law and the employees and their organisations incurred both civil and criminal liability for their actions. Under the common law, in terms of the “contractual approach”, participation in an unlawful strike amounts to gross violation of the contract or repudiation of the same, justifying summary dismissal.156 The duration of the strike is immaterial with the courts sanctioning dismissal even for strikes of a few hours duration.157 The Labour Act only extends protection from dismissal to employees who engage in lawful collective job action, thereby leaving those engaged in unlawful collective job action to the mercy of the common law.158 In any case dismissal may be ordered by the Labour Court in terms of a disposal order.159 In terms of statutes, participation in an unlawful strike attracted severe penal sanctions, from the colonial period through to the post-colonial period.160 The Labour Act still provides for draconian criminal and civil sanctions against employees and trade unions who engage in unlawful collective job actions and even third parties who support such actions. Firstly is civil liability. The Act authorises the imposition of punitive damages against a party or every “responsible person”, who recommends, encourages, threatens, incites,

156 Wholesale Centre v Mehlo and Others 1992 (10 ZLR 376; Kadoma Magnesite v RHO 1991 (1) ZLR 283; Masiyiwa v TM Supermarkets 1990 (1) ZLR 283; ZIMPOST v Communication and Allied Workers Union S- 23/09. 157 Wholesale Centre v Mehlo and Others; and ZB Financial Holdings v Manyarara SC 03-12. 158 Section 108 (3) Labour Act . 159 Section 107(3) (a)(iv), Labour Act. 160 M Gwisai op cit at 344-345. See legislation such as the Emergency Powers (Maintenance of Essential Services) Regulations, S I 160A of 1989 and the Public Services (Maintenance of Services) Regulations S I 258 of 1990 . UZLJ The Right to Strike in Zimbabwe 69 or participates in an unlawful collective job action. The provisions are widely couched:161 • The liability is for “any injury to or death of a person, loss of or damage to property or other economic loss, including the perishing of goods caused by employees’ absence from work, caused by or arising out of occurring during such collective action.” • The liability is joint and several and applies to every official or office bearer of the responsible person and every individual employee. The only defence would be to show that such person did not realize or lacked the subjective intention, to participate in the unlawful collective job action. Thus the normal burden of proof is reversed. There is in fact a presumption of guilty for all office bearers and officials of the trade union.162 • It is further provided that a criminal court that convicts a person for engagement in an unlawful collective job action, “shall forthwith award compensation to any person who has suffered personal injury or whose right or interest in any property of any description has been lost or diminished as a direct result of the offence.”163 Besides the above punitive civil sanctions, an organisation that engages in an unlawful collective job action stands to face further crippling financial sanctions. The Minister may issue against it an order suspending for up to twelve months, the right of the trade union to levy, collect or recover union dues by means of a check-off scheme, or the right of an employers’ organization to collect membership fees.164 The third level of punitive measures are the criminal sanctions. Any employee or person is liable for criminal conviction if they “recommend, advise, encourage, threaten, incite, command, aid, procure, organize or engage” in unlawful collective job action.165 The penalties for involvement in an

161 Section 109 (6) Labour Act. 162 Section 109 (2) Labour Act. 163 Section 109 (7) Labour Act. 164 Section 109 (3) Labour Act. 165 Section 109 (1) Labour Act. 70 University of Zimbabwe Law Journal 2018 unlawful collective job action are severe, and include a fine not exceeding level fourteen (the maximum) or imprisonment for a period not exceeding five years or both. The criminal court convicting a person for involvement in an unlawful collective job action is also required to make a compensation award to “any person who has suffered personal injury or whose right or interest in property of any description has been lost or diminished as a direct result of the offence”166. Fourthly, a trade union that engages in an unlawful collective job action stands in danger of being de-registered. Deregistered status comes with very severe handicaps that make it virtually impossible for the union to operate such as prohibition from collecting union dues by check-off, participation in the statutory collective bargaining frame-work under Part X of the Act, access to the statutory framework of dispute resolution such as conciliation and arbitration. Extensive interlocutory and other remedies are available to an employer or any other person aggrieved by an unlawful collective job action, including threat thereof. Such party may apply to the Minster for issuance of a statutory interdict called a show cause order, in terms of which the offending party may be ordered to cease the unlawful collective job action forthwith, pending disposal of the dispute by the Labour Court.167 The Labour Court is given extensive powers to dispose of unlawful collective job actions. This may include orders providing for: the prohibition of collection of union dues for a specified period, suspension or rescission of the registration of the trade union, refer the dispute underlying the strike to another authority for determination, the lay off or suspension of employees, dismissal and or taking of disciplinary action against specified employees.168 The courts have also held that an employer may side-step the entire Part XIII machinery and discipline the employees in terms of its employment code. Or even if a disposal order has

166 Section 109 (7) Labour Act. 167 See section 106 of the Labour Act. 168 Section 107 (3) (a) Labour Act. ZESA v ZESA Employees 2005 (1) ZLR 127 (S); Safeguard Security, Guard Alert & Fawcetts v Employees LC/ MC/45/2003. UZLJ The Right to Strike in Zimbabwe 71 been issued and is silent on the disciplining of the employees, the employer can still proceed to enforce employment code measures on the employees, including dismissal where appropriate. It has been strongly argued but rejected by the courts that this is inappropriate. Firstly is the existence of the very specific, clear and extensive machinery under Part XIII of the Labour Act to deal with strikes including the very extensive powers of the Labour Court when issuing a disposal order. Secondly the fact that employment codes are generally designed to deal with individual disputes and usually unsuitable for large-scale disputes in particular strikes which more often than not paralyse the code infrastructure as workers representatives are also likely to be involved in the strike.169 The above would seem to point out to one conclusion, namely that the application of the employment code / and or national code becomes ousted by implied necessity, once the Labour Court has become seized or has dealt with the matter.170 The above sanctions on employees, organisations and persons who engage in or support an unlawful collective job action are truly draconian. The provisions have their origins in repressive colonial legislation based on colonial state corporatism and retained in the first decade of independence. Such systems, although nominally recognising the right to strike, in fact virtually prohibited strikes.171 The sanctions on unregistered trade unions virtually make it impossible for such organisations to exist, in contravention of the constitutionally guaranteed right to organise and assemble. It is arguable that such sanctions and provisions are inconsistent with a legal system or constitutional order based

169 As was the case in Chikonye & Ors v Standard Chartered Bank SC-152- 98, and Cargo Carriers (PVT) Ltd v Zambezi & Ors 1996 (1) ZLR 613. 170 The court seemed to have been going in such direction in Cargo Carriers (PVT) Ltd v Zambezi & Ors 1996 (1) ZLR 613; and Communications & Allied Workers Union of Zimbabwe & Ors v Tel- One (Pvt) Ltd ZLR (H) per Makarau JP. However, this promising direction was ruthlessly cut short in subsequent decisions including: ZISCOSTEEL CO. LTD v Dube & Ors 1997 (2) ZLR 172 (S); Tel-One (Pvt) Ltd v CASWUZ 2006 (2) ZLR 136 (S) at 144; Net-One Cellular (Pvt) Ltd v Communications & Allied Workers Union of Zimbabwe & Ors S-89-05; and CABS v Rugwete 2009 (2) ZLR 26 (S) . 171 L Madhuku op cit at 115. 72 University of Zimbabwe Law Journal 2018 on the right of employees to collective job action, to fair labour standards and to collective bargaining. There is no equilibrium in the treatment between employers and employees. The true and real target of the above provisions are workers and trade unions and workers, as the comparative impact on employers who engage in unlawful collective job action is negligible. As has been persuasively argued, strikes are not the equivalent of lock-outs. The real comparable power of employers viz workers in collective bargaining lies not in the power of lock-out but in their powers ad prerogatives in ownership and control of the business property, their power to hire and dismiss labour. Nowhere does the Labour Act or criminal law impose equally draconian sanctions for unlawful acts by employers for acts such unlawful dismissal, retrenchment or constraints on their rights of ownership. The severe sanctions under sections 109 and 107 of the Labour Act in effect therefore amount to a very crude and blunt tool against the right to strike, especially when considering that the courts hitherto have treated in the same manner all forms of unlawful strikes, regardless of duration or impact. We humbly submit that such provisions are inconsistent with the broad right to collective job action and to organise and collective bargaining guaranteed under s 65 of the Constitution. Finally we argue that the Labour Act and new Constitution have immense impact on the issue of discipline and dismissal of employees engaged in unlawful collective job action. Whereas the common law position has been one in which dismissal is the automatic penalty for involvement in an unlawful strike, regardless of the duration, impact or cause of the strike, this is not sustainable under the provisions of the Labour Act and new Constitution. The requirements under the Labour Act of a just and expeditious dispute settlement process, and the right of employees to protection from unfair dismissal as read with the provisions of the Constitution granting every employee the right to fair labour standards, the right to collective job action and to collective bargaining, mean that the dismissal of unlawful strikers must comply with the requirements of substantive and procedural fairness that apply to all other forms of misconduct. As observed in one case – UZLJ The Right to Strike in Zimbabwe 73

[t]he illegality of the strike is not a ‘magic wand which when waved renders the dismissal of strikers fair.172 Under the Functional Approach “… strikes are regarded as an essential and integral part of collective bargaining”, and the dismissal of strikers would be considered unfair, “for so long as the strike is and remains conducive to collective bargaining.” This approach was followed in the pioneering case of Jiah & Ors v PSC & Anor173 where, relying on developments in other jurisdictions especially South Africa, the court held that the selective dismissal of the leaders of the illegal 1996 government general strike was unlawful because, despite the illegality of the strike, the dismissals violated the parity principle and the principles of natural justice. Procedural fairness means that an employee can only be dismissed for involvement in an unlawful collective job action after the conducting of fair hearing either in terms of the employment code, or national code or in terms of a disposal order of the Labour Court. The factual inquiry is necessary before dismissal to determine whether the workers in question actually participated in the alleged strike and to consider mitigation factors in view of the import of the protection from unfair dismissal doctrine under s12B(1) (4) of the Labour Act. Consequently the dismissal of strikers, without a hearing under a code that provided for “instant dismissal,” was held unlawful.174 Dismissal must also be substantively fair. This may involve various considerations. First, the seriousness of the contraventions of the requirements under the Act, or the attempts made to comply with such requirements. Dismissal would be inappropriate where there is substantial compliance.175 Second, the conduct of the employer. Dismissal is inappropriate where the strike was in response to unjustified

172 National Union of Metalworkers of SA v VRN Steel (1995) 16 ILJ 128 (IC). See generally J Grogan op cit at 270 . 173 1999 (1) ZLR 17 (S). 174 Design Incorporated (PVT) Ltd v Chapangura & Ors S-23-03. Also Muparangande & Ors v Blue Line Dry Cleaners LC/H/175/2009. 175 Smart Petro v POSB LC/H/143/05. See also J Grogan J op cit at 271 and Le Roux & Van Niekerk op cit at 306. 74 University of Zimbabwe Law Journal 2018 conduct by the employer such as bad faith bargaining, victimization of union or workers committee members or workers representatives,176 or breach of an essential term of the contract like failure to pay remuneration,177 or breach of a fundamental right of employees under the Labour Act or Constitution. Third, the conduct and moral blameworthiness of the strikers, with violent strikes described as an ‘abuse of the right to strike.’ For instance employees may have participated due to intimidation in which case dismissal would be inappropriate.178 Forth, reference must be made to any applicable mitigation factors as specified in the Labour Act179 and national code.180 The Labour Court has held, correctly in our view, that where the unlawful strike was only for a short duration and with minimum adverse impact on the employer, that dismissal would be unlawful.181 Other factors that have been taken into account include: (i) the degree of economic harm suffered by the employer noting that the exertion of economic pressure, which inevitably causes some harm, is the raison d’etre, of any strike;182 and (ii) the timing and form of the strike with the courts taking a sterner view of strikes that take place without any notice or ‘wild cat’ strikes. However, the Supreme Court has been slow to recognise the implications of these new standards on the law of strikes, as shown in ZB Financial Holdings v Manyarara.183 But the express

176 As in First Mutual Life Assurance v Muzivi; Jiah & Ors v Chairman, Public Service Commission, supra. 177 Mukandi & Ors v Hwedza Rural District Council LC/H/89/2004. 178 As in Safeguard Security (PVT) Ltd v Tiyayi LC/MC/08/04. See also - Securitas (PVT) Ltd v Dangirwa and Matara; and Chisvo & Ors v AUREX (PVT) Ltd & Anor 1999 (2) ZLR 334 (H). 179 Section 12B(4) Labour Act. 180 Section 7 Labour (National Employment Code of Conduct) Regulations 2006 (S I 15/2006). 181 Securitas (PVT) Ltd v Dangirwa and Matara LC/H/184/05; and ZB Financial Holdings v Manyarara LC/H/94/2009. 182 BAWU & Ors v Prestige Hotels CC t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC): “The Act contemplates that the right to strike should trump concerns for the economic losses which the exercise of that right causes. That is because collective bargaining is necessarily a sham and a chimera if it is not bolstered by the ultimate threat of economic force by one or other of the parties, or indeed by both.”. 183 ZB Financial Holdings v Manyarara LC/H/94/2009. UZLJ The Right to Strike in Zimbabwe 75 provisions of the new Constitution providing explicitly for the rights to fair labour standards and a broad right to collective job action, has affirmed the pioneering position taken in Jiah & Ors v Public Service Commission case whereby principles of procedural and substantive fairness apply to unlawful collective job action.

CONCLUSION With the new constitutional dispensation, Zimbabwean law is poised to give life and meaning to the right to strike as the impetus and the tone has already been set. There is need for a paradigm shift to ensure that action speak louder than words expressed in legislation so that the right to strike ceases to be a pipeline dream but a reality. Undoubtedly full compliance with ILO requirements on the right to strike requires more proactive action by the courts and the State and other social partners but there is beaming light at the end of the tunnel. A RAY OF HOPE FOR THE OUTLAWING OF CORPORAL PUNISHMENT IN ZIMBABWE: A REVIEW OF RECENT DEVELOPMENTS

BY BLESSING MUSHOHWE1

1. INTRODUCTION Zimbabwe has been going through some encouraging developments in the area of child rights since 2013. Of note has been the banning of child marriages in January 2016 in the Loveness Mudzuru & Ruvimbo Tsopodzi vs Minister of Justice, Legal & Parliamentary Affairs N.O; Minister of Women’s Affairs, Gender & Community Development & Attorney General of Zimbabwe (“the Mudzuru case”). In the same spirit of interpreting constitutional provisions to realise child rights, the High Court of Zimbabwe has since then twice declared corporal punishment on children to be unconstitutional in light of the ‘new’ Constitution of Zimbabwe2 . First was the declaration of constitutional invalidity of corporal punishment by Justice Muremba on the 31 December 2014 in the case of S v Chokuramba3 , followed by a similar declaration by Justice Mangota in the case of Pfungwa & Anor v Headmistress of Belvedere Junior Primary School & Others4 on the 1 March 2017. Presently, these decisions, having been made by the High Court (lower in terms of courts hierarchy), still await confirmation by the Constitutional Court according to section 175(1) of the Constitution of Zimbabwe of 2013 which states that where any other court makes an order on a constitutional matter, such will have no force until it is confirmed by the Constitutional Court. While this happens, the repeated declaration of constitutional invalidity affirms the loud voice by the High Court that corporal punishment no longer has any

1 LLB (Hons), LLM. Chairperson, Private Law Department, Faculty of Law, University of Zimbabwe. 2 Constitution of Zimbabwe Amendment (No 20) Act of 2013 3 HH-718-14. 4 HH-148-17.

76 UZLJ Hope for Outlawing of Corporal Punishment 77 place in the new dispensation ushered in by the Zimbabwean Constitution of 2013 and indeed in the current human rights global order.

In light of the above, this paper explores recent developments regarding the issue of corporal punishment with a view to show the ray of hope that corporal punishment will indeed be a thing of the past soon, at least in terms of the law. The first part gives an overview of corporal punishment in terms of definition. This is followed by an analysis of international law regarding the issue. The next part explores domestic policy and law on corporal punishment prior to the new Constitution of Zimbabwe. This is followed by a brief discussion of the negative consequences of corporal punishment on children. The next part examines how recent developments show that corporal punishment may soon be abolished. This is seen mainly from the declaration of constitutional invalidity of the practice by the two High Court decisions highlighted above. The last part briefly explores what it would take for the outlawing of corporal punishment to be implemented successfully in a conservative society such as Zimbabwe.

2. THE DEFINITION OF CORPORAL PUNISHMENT Corporal punishment is defined by the United Nations Committee on the Rights of the Child as: Any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading. In addition, there are other non physical forms of punishment which are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, 78 University of Zimbabwe Law Journal 2018

humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.5 Such types of disciplining children in the home, school and as a sentence for juveniles as described above are very common and accepted mainly in African countries, including in Zimbabwe. While beating up or torturing an adult in any of the ways mentioned in the above definition is regarded as inhumane, degrading treatment, unacceptable and in many cases called a punishable crime of assault or torture, it has for a long time remained acceptable when it involves children under the guise that it is for disciplinary purposes, even though the act of discipline involves the infliction of pain. According to Naker and Sekitoleko,6 corporal punishment is so common that it has almost become invisible in the sense that many adults hardly notice themselves or others using violence to interact with children. In a report titled “Creating Safer Schools”, UNICEF Uganda7 attributes the continued use of corporal punishment to certain entrenched social norms and beliefs in societies such as: • “Spare the rod and spoil the child”-from religion • “Without pain there is no gain” • “Those who turned out well in life are so because they were beaten as children” • “A person in authority has to exert control always”.

3. INTERNATIONAL POLICY AND LEGAL FRAMEWORK ON CORPORAL PUNISHMENT Internationally, corporal punishment is regarded as violence against children and as a breach of fundamental human rights. It is considered inhumane and degrading as it violates children’s physical integrity and demonstrates disrespect for human

5 UNCRC Committee, General Comment Number 8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, CRC/C/GC/8, 2 June 2006. 6 Dipak Naker and Deborah Sekitoleko ‘Creating A Good School Without Corporal Punishment’, (2009), Raising Voices, p 9. 7 UNICEF Uganda, Creating Safer Schools: Alternatives to Corporal Punishment’ (2008), p 5. https://www.unicef.org/uganda/ Alternatives_to_VAC_160812.pdf . (Accessed 03/07/17). UZLJ Hope for Outlawing of Corporal Punishment 79 dignity and undermines the self-esteem of children. It is said to treat children as half-human beings thereby breaching the principle of equal protection before the law and non- discrimination. There are regional and international conventions which discourage or outlaw outright the use of corporal punishment. Zimbabwe has ratified and acceded to some of them. While many instruments may not expressly refer to it as corporal punishment, the ban is seen in the prohibitions of application of inhumane, degrading and torturous discipline or punishment methods on children. To begin with, Article 19 of the Convention on the Rights of the Child (“the CRC”)8 obligates member states to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence. This is buttressed by Article 28(2) which likewise obligates states parties to take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the principles of the CRC. Article 37 sums up the CRC’s disdain for violence against children by stating that State Parties shall ensure that: (a) “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”. This abhorrence of corporal punishment shown by the CRC is equally matched by the African Charter on the Rights and Welfare of the Child (“the ACRWC”).9 It asserts in Article 11 that member states shall take all appropriate measures to ensure that a child who is subjected to schools or parental discipline shall be treated with humanity and with respect for the inherent dignity of the child and in conformity with the principles of the ACRWC. This is cemented by Article 16 which like the CRC, also prohibits subjecting a child to any form of torture, inhuman or degrading treatment and especially physical or mental injury or abuse. Articles 17 and 20 of the ACRWC also reinforce the above prohibitions on violence against children in the form of corporal punishment.

8 Ratified by Zimbabwe on the 11September 1990. 9 Ratified by Zimbabwe on the 19 January 1995. 80 University of Zimbabwe Law Journal 2018

While these are the major instruments as far as children are concerned, the same prohibitions are found in other instruments such as the African Charter of Human and People’s Rights10 ; the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights11 , where violence against children is prohibited within the broader prohibitions of the same on every human being. The message from the international community as represented by the international instruments is clearly that violence against children in the form of corporal punishment is not acceptable and should not be accepted. In this regard, while Zimbabwe is party to the above-mentioned international treaties and conventions, thereby being bound by their stipulation, the country has proceeded to domesticate some of the mentioned rights in its domestic laws as is required by section 34 of the Constitution of Zimbabwe as is discussed below. Furthermore, the declarations of constitutional invalidity by the two High Court Judgements under discussion also importantly make reference to the above international treaties and conventions as is required by section 46(1)(c) of the Constitution of Zimbabwe.

4. DOMESTIC POLICY AND LAW ON CORPORAL PUNISHMENT PRIOR TO THE 2013 CONSTITUTION OF ZIMBABWE As rightly stated by Justice Muremba in the Chokuramba case12 , in Zimbabwe, corporal punishment had continued to exist because of the old Lancaster House Constitution13 which in its section 15(3) permitted the use of corporal punishment in the home, school or as a sentence. As a result, statutes that existed then (and still exist) followed suit in allowing use of the practice and of note is section 241(2) of the Criminal Law (Codification and Reform) Act14 which states that: (a) a parent or guardian shall have authority to administer moderate corporal punishment for

10 Ratified by Zimbabwe on 30 May 1986. 11 Acceded to by Zimbabwe on 13 May 19991. 12 See detailed discussion of the case in Part 6 below. 13 Constitution of Zimbabwe of 1979. 14 [Chapter 9:23]. UZLJ Hope for Outlawing of Corporal Punishment 81

disciplinary purposes upon his or her minor child or ward; (b) a school-teacher shall have authority to administer moderate corporal punishment for disciplinary purposes upon any minor male pupil or student”. As evident above, this gave authority for use of corporal punishment in the home and school.15 For use of corporal punishment in sentencing a juvenile for a criminal offence, the relevant enabling provision is section 353(1) of the Criminal Procedure and Evidence Act16 . The section gives a court options for sentencing a male accused person under the age of eighteen years, among them, an order for him to receive moderate corporal punishment, not exceeding six strokes. While this was the status of corporal punishment prior to 2013 (and technically still is), the practice has slowly been losing favour for some time now. Over the years in Zimbabwe, there has been a movement towards imposing strict conditions to be applied regarding the use of corporal punishment. Already, the above mentioned statutes did not give a general permit to use corporal punishment but rather did put in place some conditions such as that corporal punishment is applicable to a male juvenile only and as regards corporal punishment as a court sentence that the juvenile was certified by a doctor to undergo such punishment.17 Specific to the education sector, Circular P3518 issued by the then Ministry of Education, Sports and Culture,19 while still allowing corporal punishment in schools, echoed the same sentiments as above where corporal punishment is only used with some strict conditions attached. These conditions include that only the School Head is allowed to administer corporal

15 Sub-Sections 3-5 of the Act further elaborate on the use of corporal punishment on children. 16 [Chapter 9:07]. 17 The involvement of a doctor in a procedure that involves causing of harm raises issues of medical ethics. 18 Statutory Instrument No. 362 of 1998 [Education (Disciplinary Powers) Regulations, 1998]. 19 Now known as the Ministry of Primary and Secondary Education. 82 University of Zimbabwe Law Journal 2018 punishment; to a male pupil only; with a witness present; recording the offence and strokes applied; using a light cane among other conditions. While this would have notably reduced the cases of indiscriminate use of corporal punishment by any teacher, the policy however, regrettably still allows the School Head to delegate this function to other teachers, thus leaving room for abuse of the restriction.

5. NEGATIVE CONSEQUENCES OF CORPORAL PUNISHMENT The increase in international calls for the banning of corporal punishment, and indeed the introduction of strict conditions for applying it in Zimbabwe alluded to above, has not been without a basis. It has rather been grounded in evidence over the years that show the lack of usefulness of the practice and indeed the futile consequences it presents on children in many cases. According to the “Creating Safer Schools” Report by UNICEF Uganda20 , corporal punishment fosters a belief among people, including children that other forms of violence will also be tolerated. Naker and Sekitoleko21 add that: i. Corporal punishment has physical consequences where children may suffer physical injury as a result, such as broken bones, infections and physical illness. Such injuries can affect children’s physical development and can have an economic impact on the entire community. At the same time, injuries need treatment which may bring unnecessary cost of treatment to the school by the school. II Injuries or even death through corporal punishment are not an illusion but a reality. The Pfungwa case mentioned above, as will be discussed later in Part 6, involved serious injuries having been sustained as a result of corporal punishment at school. Furthermore, headlines in Zimbabwean newspapers such as ‘Zimbabwean Head-teacher charged with murder after caned

20 Note 8 above, p4. 21 Note 7 above, p12-13. UZLJ Hope for Outlawing of Corporal Punishment 83

pupil dies’22 ; ‘Dad kills son (13) for farting during supper’23 ; ‘Mom beats son to death over 25 cents’24 ; ‘Step mother beats 6 year old daughter to death, inserts vibrator in her VAGINA’25 ; and ‘Dad kills son for stealing 3 eggs’26 ; among others also bears sad testimony to the reality of fatalities occurring through corporal punishment.27 ii. Corporal punishment has emotional and psychological consequences whereby beaten up children often feel anger and shame at the same time, which leads to a feeling of humiliation which damages their sense of dignity, self-confidence and trust in adults who repeatedly use corporal punishment against them. The result can be depression, thoughts of suicide, desires for revenge and aggression toward others in children. iii. Corporal punishment has behavioural consequences whereby many children who experience corporal punishment bully other children, or as adults, use domestic violence. This is because corporal punishment teaches children that violence is an acceptable way of imposing their views on someone less powerful than themselves. iv. Corporal punishment has developmental consequences. Many children who experience corporal punishment on a regular basis live with slowed or interrupted cognitive and emotional development. They become withdrawn and fearful of trying new things. They feel ashamed of themselves due to regular humiliation. They need more time to learn social and academic skills.

22 The Telegraph, 06 February 2015. 23 The Herald, 25 January 2015. 24 The Herald, 02 September 2016. 25 MYZIMBABWE, 03 September 2016. 26 The Herald, 16 November 2016. 27 While some may want to argue that such fatalities will now be bordering on serious physical abuse of a child, the reality is that the abuse is committed in the name of using corporal punishment to discipline the child for a wrong committed. There is no limit to the amount of corporal punishment that can be applied, nor is there a universal measure of what moderate corporal punishment mean, thus leaving room for excessive use leading to such fatalities. 84 University of Zimbabwe Law Journal 2018

Their performance at school deteriorates, and their ability to form healthy, satisfying relationships can be severely affected. v. Corporal punishment often leads to loss of interest, resentment of the learning experience and, as a result, lack of value for education by children. More often than not, children who are beaten up learn to hate a subject or teacher, leading to subject or school dropout. Most importantly, it has been proven that corporal punishment is actually not effective in the long term. This is primarily because hurting children does not change the child’s underlying attitudes and values. The child does not learn self-control, but only permissiveness and how to respond to the control of others, or how to lie and hide what they are doing so as to avoid punishment.28 Because of the above reasons and more, human rights and indeed child rights advocates have for long argued that child discipline should primarily be about teaching and guiding children about what is right and wrong, helping children to learn what is expected of them and how to control their own behaviour as opposed to corporal punishment. With this line of thinking, there has been a banning the use of corporal punishment in many countries such as Uganda, Kenya, South Africa and Namibia among others in the region.

6. A RAY OF HOPE ON THE BANNING OF CORPORAL PUNISHMENT As regards corporal punishment in Zimbabwe, the education sector Ministerial Circular P3529 discussed above is one policy that must ironically be applauded as it brought a ray of hope for the complete outlawing of corporal punishment in Zimbabwe in the near future. While it ironically still allows continued use of corporal punishment, it also shows a strong disapproval of the practice and it urges those involved to try and find practical alternatives to disciplining children apart from corporal punishment. Parts of the Circular state that: “Every Head should try to cultivate a school climate where

28 Childline South Africa, (2012), “Alternatives to corporal punishment”,[Prevention & Education Manual (Childline South Africa). 29 Note 17 above. UZLJ Hope for Outlawing of Corporal Punishment 85 pupils will/can develop internal discipline which is not initiated by fear of punishment”. It calls for a school ethos which provides self discipline among pupils as supported by counselling sessions where necessary in consultation with parents, in order to breed a more responsible and maturing individual. The Circular further compares corporal punishment to a physical fight and states that, “...except in this case the pupil is not allowed to fight back. He has to endure the agony, the pain and the deprivation of human dignity. It is an admission that the school and the Head have ultimately failed to ‘correct’ the child”. The above sentiments are encouraging for various reasons but chief among them is that there was and still is a realisation in the Zimbabwean education system that there are alternatives that can be used to discipline children apart from using the rod. This is important as it indicates a readiness of the Zimbabwean education system or its authorities to abandon corporal punishment and embrace practical alternatives to discipline as may be proffered by research and as used successfully in other jurisdictions. This readiness has now been complimented by progressive provisions of the new Constitution of Zimbabwe which have now been aptly interpreted by Justice Muremba in the Chokuramba case and repeated in the Pfungwa case by Justice Mangota.

6.1 Overview of the Chokuramba and Pfungwa Judgements The Chokuramba judgement given by Justice Muremba is the more expansive of the two in terms of unpacking issues and exploring the law regarding corporal punishment, both domestic and international. This was a case under review after conviction and sentence in the Magistrates Court. In the lower court, a 15 year old juvenile had been charged with and correctly convicted of rape as defined in section 65(1) of the Criminal Law (Codification and Reform) Act30 . He had been sentenced in terms of section 353(1) of the Criminal Procedure and Evidence Act31 to receive moderate corporal punishment

30 [Chapter 9:23]. 86 University of Zimbabwe Law Journal 2018 of 3 strokes with a rattan cane, which sentence had already been carried out by the time of the review. The court ruled that this punishment was unconstitutional and it referred the case to the Constitutional Court for confirmation in terms of sections 167(3) and 175(1) of the Constitution and the then Chief Justice Chidyausiku reserved ruling on the matter after hearing submissions from interested parties. Over two (2) years have now passed with the judgement still reserved. On the other hand, the Pfungwa case was an application for a constitutional declaratory order to declare that corporal punishment in school and in the home violates the rights of children as set out in sections 51, 53 and 81 of the Constitution of Zimbabwe. In this case, a junior grade primary school going child had been severely assaulted by her teacher using a thick rubber pipe as punishment “for the simple reason that her mother, the first applicant, failed to sign Makanaka’s reading book to confirm that Makanaka had done her homework”. Again after finding that this punishment was unconstitutional the case was referred to the Constitutional Court for confirmation in terms of sections 167(3) and 175(1) of the Constitution. The relevance of the two cases, besides making emphasis on and portraying urgency of the issue of outlawing corporal punishment, is that between them, they have now covered all the three critical environments in which corporal punishment notoriously occurs, i.e. in the home, the school and the judiciary. This therefore makes a case for and indeed compels the Constitutional Court, whenever it decides to rule on the matter, to make an all encompassing confirmation or otherwise, of invalidity of corporal punishment for all the critical environments concerned.

6.2 The Constitutional Invalidity of Corporal Punishment Justice Muremba by declaring in the Chokuramba case that “There is need to examine the provisions of the new Constitution and see if it is still competent for the courts to impose corporal punishment on male juvenile offenders”, takes time to explore and unpack section 53 of the Constitution of Zimbabwe which prohibits the subjecting of any person, children included, to physical or psychological torture or to UZLJ Hope for Outlawing of Corporal Punishment 87 cruel, inhuman or degrading treatment or punishment. She correctly points out that while the old Constitution of Zimbabwe had a similar provision in section 15(1), albeit limited, in the new Constitution the right is not limited. This means that as far as use of physical force on another person is concerned, there is no differentiation between adults above 18 years and children below 18 years as used to be the case in the old Constitution. This acknowledges that children are not half-human beings but are full human beings who according to section 81(1)(a) of the Constitution, have a right ‘to equal treatment before the law...’ as is everyone else, in addition to having a right in section 81(1)(e) to be protected from all forms of abuse including violence. With this constitutional interpretation of sections 53 and 81 as supported by section 52(a) which protect the right to personal security and section 56 on equality and non- discrimination, Justice Muremba correctly concludes that ‘corporal punishment is now unconstitutional’ in Zimbabwe. With it is the consequent invalidity of sections of the Criminal Law (Codification and Reform) Act32 ; the Criminal Procedure and Evidence Act33 and associated policies such as Circular P3534 . In so banning corporal punishment in the Chokuramba case, it is important to also note that Justice Muremba, in her interpretation of the Constitutional provisions on corporal punishment contained in the Declaration of Rights, acknowledges international law on the matter. She conducts an expansive analysis of the above discussed international instruments as they relate to the issue of corporal punishment and highlights Zimbabwe’s international obligations arising therefrom. This is a positive development coming from the judiciary in child rights matters, having been done again in the Mudzuru case on child marriages by the then Deputy Chief Justice Luke Malaba.35 This is important in that it highlights the willingness of the highest courts in Zimbabwe to embrace

31 [Chapter 9:07]. 32 Section 241(2). 33 Section 353(1). 34 To the extent that it still allows corporal punishment. 35 He is now the Chief Justice of Zimbabwe. 88 University of Zimbabwe Law Journal 2018 the guidance of international law in interpreting constitutional provisions, including importantly, on children’s rights. While the use of international law in interpreting domestic laws is not necessarily new, the continued application particularly at the level of the higher courts is critically important for assessing consistency of the courts in use of international law and indeed in creating and developing precedent that can continue to be followed by other lower courts.36 It indeed reflects Zimbabwe’s willingness to have its human and child rights practices to be measured against international norms and standards. This is aptly stated by the then DCJ Malaba in the Mudzuru case when he said, “...the court has to take into consideration the current attitude of the international community of which Zimbabwe is a party, on the position of the child in society and his or her rights.” As already mentioned, the High Court repeated the call to outlaw corporal punishment in 2017 through Justice Mangota in the Pfungwa case. This has added to hope currently sweeping Zimbabwe on the outright outlawing of corporal punishment in the near future, once the Constitutional Court deliberates on and rules on the two cases presented for confirmation from the High Court. Further encouraging is that the Constitutional Court is now headed by Chief Justice Luke Malaba, who in 2016, sitting with 8 other judges of the Constitutional Court boldly declared child marriages to be unlawful in Zimbabwe in the Mudzuru case. This won the Constitutional Court an international award courtesy of the Women’s Link Worldwide of Rwanda. It is hoped that with such recognition of the court’s progressive law development on child rights, the same approach will be adopted when the cases on the issue of corporal punishment come before the Constitutional Court for confirmation.

7. BANNING CORPORAL PUNISHMENT IN PRACTICE The ban on corporal punishment, whenever it happens, will not be received with drums and ululation as was the case with the child marriages ban. If anything is to be learnt from

36 ‘Thoughts on the Constitutional Court Landmark Judgement on Child Marriages’, AlexMagaisa.Com, 21 January 2016. UZLJ Hope for Outlawing of Corporal Punishment 89 the time when the Chokuramba and Pfungwa judgements were handed down, it is clear that there is going to be a public outcry from sections of the society, particularly parents and those in the education sector that will quickly brand an outright ban as unsuitable for the Zimbabwean context. The main reason that is always proffered in the general public outcry is that the ban will promote unruly behaviour among children while those in authority will have nothing to use in disciplining children that are under their control, thereby effectively being disempowered. Busienei37 agrees and notes that where corporal punishment is banned, teachers may feel that they have been completely stripped of their powers and have no control over their students and they feel they have been given no alternatives. As a result they feel completely helpless. A general inference is thus made that corporal punishment is synonymous with child discipline and having control by teachers and conversely that the banning of the former means children can no longer be disciplined and teachers will lose control of students. While this is definitely wrong, these sentiments are widely held, especially of African societies. As such, in order to ensure that the ban becomes real, there will be need for public awareness campaigns to quickly follow the ban. The message to the general public should be that child discipline is not synonymous with corporal punishment but rather primarily about teaching and guiding children about what is right and wrong; helping children to learn what is expected of them and how to control their own behaviour. Away from the laws, the society should recognize that children’s mental and physical maturity limitations requires adults to nurture, protect and mentor them in a manner that guides them into becoming responsible citizens who abhor violence in any form, and respect others’ human rights rather than fear them. This cannot be achieved by instilling a culture in children that interpersonal violence is an appropriate response to conflict or unwanted behaviour and that it is acceptable for those in authority to be violent towards the weak to force a particular line of behaviour or action.

37 Agnes J. Busienei, Alternative Methods to Corporal Punishment and Their Efficacy, (2012) Vol 3 (2), Journal of Emerging Trends in Educational Research and Policy Studies, p 157. 90 University of Zimbabwe Law Journal 2018

Children merely need discipline which refers to teaching them self-control, how to consider alternatives for behaving in a particular manner, motivation for acting differently, understanding the consequences of wrongful behaviour and developing an awareness of what they ought to be doing right. Discipline as opposed to corporal punishment ideally should emphasize positive reinforcing of good behaviour and positive/ negative reprimanding of bad behaviour without using physical punishment. Such child discipline should also be done in addition to an ongoing process of trying to solve the root causes of children engaging in unwanted behaviour, such as stressful or abusive family situations and poverty among others. Myths such as ‘I am what I am today because I was beaten as a child’ should be debunked in public awareness campaigns. It certainly is not true, just as it is likewise not true that women of yesteryear were more groomed and respectful because their husbands used to beat them up. Both are a primitive culture of past era time which can no longer survive the human rights respecting demands of today’s world. In any case all cultures including the Zimbabwean culture are dynamic and corporal punishment should rightfully be relegated to the dustbins of yesteryear’s culture. Such public awareness should, however, be preceded by adequate research into practical alternatives to corporal punishment that can be used effectively in disciplining children in the Zimbabwean society. Case studies can be used of environments in Zimbabwe where corporal punishment is not used but disciplining of children has been successful, such as in some private schools. Lessons learnt can also be drawn from other countries in the region where the ban has been successfully implemented through the introduction of effective alternatives.

8. CONCLUSION Nelson Mandela once said “There can be no keener revelation of a society’s soul than the way in which it treats its children”.38 Corporal punishment indeed reveals a violent

38 Speech by the late former South African President Nelson Mandela at the launch of the Nelson Mandela Children’s Fund, Monday, May 08, UZLJ Hope for Outlawing of Corporal Punishment 91 society and that is not a true or desirable reflection of the Zimbabwean society by any measure. Zimbabwe should be a non-violent society that has for some time now recognised that another human being in the form of a wife should not be beaten up by the husband hence the success of the domestic violence laws and the general abhorrence by society of physical abuse of women. With the same token, hitting a child in corporal punishment is violence and should no longer be tolerated and accepted in a human rights era that Zimbabwe is living in as part of the global community. In this regard, Circular P35 began the process of showing its discomfort with the use of corporal punishment in schools. The Constitution of Zimbabwe as the supreme law of the land took up the matter through section 53, among others. The High Court of Zimbabwe has followed suit by boldly interpreting the constitutional provisions, thereby banning corporal punishment in the two judgements discussed. The baton is now with the Constitutional Court to give a final blow to corporal punishment by simply and rightfully declaring it unconstitutional and therefore unlawful, the same way it did with child marriages. Zimbabwe can only wait and hope that this will happen sooner rather than later.

1995 at Mahlamba Ndlopfu, Pretoria, South Africa, available at http:/ /db.nelsonmandela.org/speeches/ pub_view.asp?ItemID=NMS250&txtstr=Mahlamba&pg=item. (Accessed 03.07.17). ABUSE OF POWER AND AUTHORITY: RAPE BY COERCION1

BY GEOFF FELTOE2

INTRODUCTION People in positions of power and authority often abuse their power and authority to try to coerce females to have sexual relations with them. They prey on vulnerable women and girls over whom they have power or authority. A prime example is the notorious case of Hollywood Film producer, Harvey Weinstein. Over 90 women have accused Weinstein of sexual harassment, indecent assault and, in eighteen cases, of rape over a period from 1980 to 2015. Weinstein would allegedly invite young actresses or models into a hotel room or office on the pretext of discussing their careers, and then demand massages or sex. He told them that complying with his demands would help their careers and, conversely, implied that non- compliance with his sexual demands would be fatal to their careers. These activities were allegedly enabled by employees, associates, and agents who set up these meetings, and lawyers and publicists who suppressed complaints with payments and threats. Weinstein has denied that what happened was non- consensual. After the initial accusations against Weinstein many more women, who had previously been apprehensive about making accusations against a powerful person like Weinstein, have come forward to accuse Weinstein of sexual assaults upon them. This has also led to a further spate of accusations of sexual abuse by other persons in authority in America such as sports coaches and team doctors. For example, a sports doctor

1 The title reflects the focal point of this paper which is rape by coercion, although other types of rape are canvassed in order to show the difference between coerced sex and, for instance, rape by deception. 2 Associate Professor of Law, University of Zimbabwe. I am extremely grateful to Professor Julie Stewart for all her helpful comments and observations when I was writing this paper. Any errors in this paper are, of course, my own.

92 UZLJ Abuse of Power and Authority: Rape by Coercion 93

Larry Nassar, has been charged with sexually molesting numerous female gymnasts. Allegations have been made by female athletes that their coaches threatened to wreck their athletic careers unless they agreed to have sexual relations with their coaches. It has also been alleged that male dominated bodies which could have taken action against their members who were known to be abusing their authority covered up or failed to take action against their members and were therefore complicit in allowing the malpractices to continue.3 It is incumbent upon controlling bodies to ensure that situations of power imbalance do not result in sexual abuse of vulnerable persons. It is important to decide how the law of Zimbabwe should deal with situations when it can be proven that the only reason the complainant had sexual relations with the accused was because of the coercion brought to bear upon her and which caused her to submit to the accused’s advances. It must be stressed that the concern here is to deal with proven cases of abuse and not with unfounded accusations. However, it must also be emphasized that all allegations should be fully investigated to determine whether there is substance in the allegations.

RAPE AND CONSENT Section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code) provides that a male person is guilty of rape if he knowingly has vaginal or anal sexual intercourse with a female person who has not consented to have sexual intercourse and the male knows she has not consented or realizes that there was a real risk or possibility that she may not have consented. The maximum penalty for this offence is life imprisonment. The Criminal Law Code does not provide a definition of “consent” whereas the South African sexual offences

3 The conspicuous failure of the Catholic Church to take effective action by Catholic priests who were sexually abusing children is well known. 94 University of Zimbabwe Law Journal 2018 legislation defines consent as “voluntary or uncoerced agreement” to have sexual relations.4 However, section 69(a) provides that a person will be deemed not to have consented to sexual intercourse for the purposes of rape, aggravated indecent assault and indecent assault where the accused uses, inter alia, intimidation or pressure to induce the complainant to submit to the sexual act. Section 84 of the Criminal Law Code creates a separate criminal offence which includes the use of coercion to enable a person to have unlawful sexual relations with another. This offence encompasses the use of threats or intimidation. The penalty for this offence is a fine not exceeding level ten or imprisonment for a period not exceeding five years or both. The proviso to this offence says that nothing in this section precludes a person from being charged with or convicted of rape if the facts support such a charge or conviction. It will be submitted below that coerced sex should constitute rape and should be charged as such rather than the lesser statutory offence.

FORCED SEXUAL RELATIONS The absence of consent will be patently obvious where a person who is a stranger to the woman grabs her when she is out walking and drags her into some bushes and forcibly has sexual relations with her by beating her up to overcome her resistance or by brandishing a knife and threatening to kill her if she does not submit to sexual intercourse. Lack of consent will also be apparent in a situation when a man has invited a woman to his house and when he asks her to have sexual relations with him, she emphatically refuses or when he tries to have sexual relations with her she physically resists and he uses force to overcome her resistance. Even where the parties have previously had sexual relations, it is rape if, on the present occasion, the man has sexual relations with her against her will. Under the current law a husband who forcibly has non-

4 Section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines consent as “voluntary or uncoerced agreement” to have sexual relations. (“the South African Sexual Offences Act”.) UZLJ Abuse of Power and Authority: Rape by Coercion 95 consensual sexual intercourse with his wife can be charged with rape.5

COERCED SEXUAL RELATIONS There is a common misperception that rape can only be committed if a man uses physical violence to overpower a non-consenting woman and that the woman has physical injuries to prove that she resisted. As will be seen below, rape can be committed in a whole range of situations where there has been no actual physical violence or threats of violence. One such situation is where the man uses coercion to induce a woman to submit to having sexual relations with him. There are a whole range of situations where a male with power, influence or authority over a female can abuse that power, influence or authority in order to have sexual relations with the female. Such cases should be charged as rape as the female has been coerced into having sexual relations when she does not wish to do so. Because of gender inequalities and gender discrimination, it is predominately males who are in a position to abuse their authority to sexually exploit female and sometimes even their male subordinates.6 However, females who are in positions of authority over males could also coerce men into having sexual relations with them. The South African Sexual Offences Act in section 1(3)(b) addresses situations where there has been abuse of power or authority by the accused to the extent that the complainant “is inhibited from indicating …her unwillingness or resistance to the sexual act…” The abuse of power or authority to force

5 Section 68(a) read with section 65 of the Criminal Law Code. One situation of marital rape is where a wife suspects that her husband may have HIV and she insists that he wear a condom before they have sexual relations but the husband refuses to wear a condom and has unprotected sexual relations with her against her will. If the husband went ahead knowing that he would infect his wife, he could also be charged with deliberately transmitting HIV in contravention of section 79 of the Criminal Law Code. 6 In America a whole succession of allegations have been made that actor Kevin Spacey abused his power and influence to sexually exploited male, including several in their teens.[ 96 University of Zimbabwe Law Journal 2018 the complainant to submit sexual relations means that there is no valid consent and the abuser should be found guilty of rape or other sexual offences. The following are some of the situations in which there is abuse of power or authority: The accused owns a company and he has the power to hire and fire staff. He approaches an attractive female employee in the company and asks her to have sexual relations with him. When she refuses, he threatens to terminate her employment if she does not do what he asks of her. Desperate not to lose her job, she reluctantly submits to the man’s sexual demands. Later she is so disgusted with what has happened that she reports the matter to the police.7 The accused owns a company and he has the power to hire and fire staff. A woman applies to the company for a job. She is interviewed by the accused who informs her that he will only employ her if first she has sexual relations with him. The woman has been unemployed for a long time and she desperately needs a job so she reluctantly submits to the man’s sexual demands. Later she is so disturbed with what has happened that she reports the matter to the police. The accused is a municipal housing officer who is in charge of allocating houses to persons who have applied for municipal accommodation. A woman who has been trying to get municipal accommodation for a long time, applies again to the housing officer. He tells the woman that he will only allocate a house to her if first she has sexual relations with

7 In this regard Burchell at p 620 of Principles of Criminal Law 5th ed has this to say: In the case of S v Volschenk 1968 (2) PH H 283 (D) “the court said that a threat by an employer to dismiss an employee was in a ‘different category.’ The court did not elaborate on the difference. The crime of rape exists to protect women in their dignity, so why should a man – who knows that a woman has agreed to have sex with him because he has threatened to dismiss her – be allowed to escape liability, but not if he threatens to assault her? In short, why should the type of duress employed make a difference when the woman has had to endure sexual intercourse or penetration against her wish?” Burchell’s comments are clearly correct. UZLJ Abuse of Power and Authority: Rape by Coercion 97 him. She reluctantly submits to his sexual demands but later she is so disgusted with what has happened that she reports the matter to the officer’s superiors.8 The accused is a municipal housing officer who is in charge of allocating houses to persons who have applied for municipal accommodation. He also has the power to order the eviction of persons who have been allocated houses where they have breached the terms of their occupancy. A female who has been allocated a house has fallen behind on the rentals for the house. The accused threatens to evict her but says he will not do so if she has sexual relations with him. To avoid eviction, she reluctantly submits to his sexual demands but later she is so disgusted with what has happened that she reports the matter to the officer’s superiors. The accused is a university lecturer. He wishes to have sexual relations with one of his female students but she refuses his overtures. He then threatens to fail her in her upcoming examination unless she has sexual relations with him. She is desperate to pass the examination, so she reluctantly submits but later is so disgusted with what has happened that she reports the matter to the lecturer’s superiors. (The same sort of scenario could arise in a school where the headmaster or a teacher threatens to expel a pupil or to fail her in the examinations unless she has sexual relations with the headmaster or teacher.) A police officer abuses his authority to intimidate a woman into having sexual relations with him. There are a number of cases in South Africa where police officers have been convicted of rape where they have abused their authority. In S v Volschenk 1968 (2) PH H 283 (D) a policeman induced consent to sexual intercourse by threatening to take an arrested woman to the police station if she did not have sexual relations with him. The court found that the policeman had abused his lawful authority and the fear he had induced in the woman had vitiated consent. He was found guilty of rape. In S v S 1971 (2) SA 591 (A) a police constable arrested a young woman and

8 A similar scenario could arise where a person with the power to allocate land abuses that power to induce a woman seeking land to have sexual relations with him. 98 University of Zimbabwe Law Journal 2018 placed her in a car. He ordered her to lie on the back seat. When he went to have sex with her she said she was ill. Nonetheless he had sex with her. No force or threat was used but the sexual intercourse was against her will and desire. She simply complied as she was afraid as she believed he had the power to harm her. The constable used his authority to overbear her lack of consent and he was thus guilty of rape.9 A father abuses his parental authority to coerce his young daughter to allow him to have sexual relations with him. He should found guilty of rape.10 It should be noted that males are also susceptible to sexual abuse by those that have authority over them. There are many examples of Catholic priests sexually abusing boys who are in orphanages run by the Catholic Church.11 Males can also fall prey to sexual demands by women who abuse their authority over the males to coerce them to have sexual relations with them, In Zimbabwe such women would have to be charged with aggravated sexual assault as women cannot themselves commit rape. But care needs to be taken to distinguish a case where coercion is used to induce submission from a case where there is no abuse his power or authority used to pressure the complainant to have sexual relations with him. Take the case of a woman

9 There have been reports that some police officers have coerced sex workers to have sexual relations by threatening to arrest them unless they comply with their sexual demands. 10 If the daughter is below the age of 12 she is incapable of giving consent but even if she is of an age where she is capable of giving consent the consent is vitiated by the coercion. Rape is the correct charge and not sexual intercourse within a prohibited degree of relationship (formerly called Incest) in contravention of section 75 of the Criminal Law Code which carries a maximum sentence of only five years’ imprisonment. See also S v Muwombi HH-164-16 on when “incest” should be charged instead of having sexual intercourse with a young person, in contravention of s 70 of the Criminal Law Code where a father has consensual sexual relations with his daughter who is under 16. 11 If a man forces a boy to engage in anal sex in Zimbabwe he would be charged with aggravated sexual assault in terms of section 66 of the Criminal Law Code. UZLJ Abuse of Power and Authority: Rape by Coercion 99 who is caught by a police officer committing a crime. What would happen if, without any inducement or pressure from the police officer, the woman offers to have sexual relations with him if he does not arrest her and the police officer takes up the offer? Even though the police officer knows that the woman has offered sex to avoid arrest and prosecution, on a charge of rape can it be said that the consent to sex was non- voluntary? A case of an influential film producer who threatens to wreck the career of one of his actresses if she refuses his sexual advances is different from the case of an actress determined to get a part in an upcoming movie who seduces the producer and has sexual relations with him to try to persuade him to give her the part. In the second scenario no coercion is used. Another possible situation is where a female student freely has sexual relations with a male lecturer and then threatens to report the matter to the university authorities if she does not pass his examination.

CASES INVOLVING DECEPTION Cases of obtaining consent to sexual intercourse by fraud or deception are different from situations of coercion. The only time that fraud vitiates consent and the accused would be guilty of rape is where a man has sexual relations with a woman after deceiving her into believing that he is her husband or sexual partner12 or where the man persuades the female that the act he is a medical procedure and not sexual intercourse.13 It is not rape where a man falsely promises to marry woman or to give her some jewelry if she has sexual relations with him and she willingly has sexual relations in order to obtain the promised benefit. Snyman adds that “if X falsely represents to Y that he loves her, that he is famous pop star, a sports hero, the owner of a flashy sports car or a multimillionaire and Y believes the story and on the strength of such a

12 Section 69(1)(c) of the Criminal Law Code. See S v C 1952 (4) SA 117 (O) 121. Unless the woman is drugged or intoxicated it is most unlikely that she will be deceived. 13 See section 69(1)(b) and (c) of the Criminal Law Code, S v Williams [1923] ! KB 340 and S v Notito [2011] ZACA 198. Again this is an unlikely situation unless it involves a young naive girl who is sexually inexperience. 100 University of Zimbabwe Law Journal 2018 misrepresentation she agrees to intercourse with X, her consent is valid and rape is not committed.”14

USE OF DRUGS OR INTOXICANTS Section 69(1)(e) of the Criminal Law Code provides that a complainant shall be deemed not to have consented to sexual intercourse for the purposes of rape, aggravated indecent assault or indecent assault if she was incapable of giving consent because she was intoxicated from the consumption of drugs or alcohol and she had not consented to the sexual action prior to becoming intoxicated. Again, however, there is a further section, section 84 of the Criminal Law Code that provides that if a person applies drugs or intoxicating liquor to the complainant to enable the accused to engage in unlawful sexual conduct with that person, he is guilty of an offence, the maximum penalty for which is imprisonment for ten years. This section provides that nothing in this section will preclude a charge of rape being brought against the accused. It is submitted that the correct charge in these circumstances is rape and not the lesser charge under section 84.

CONCLUSION It is necessary to deter influential persons from abusing their power and authority to coerce women into succumbing to their sexual advances. Where it is clear that the complainants have not engaged in sexual relations voluntarily but only because of the pressure applied to them by those who have the power to cause them harm or prejudice if they do not comply, the only appropriate charge is rape and not the lesser offence under section 84 of the Criminal Law Code. It is necessary to apply the full force of the law to deter powerful persons from abusing their power to obtain sexual favours.

14 Snyman Criminal Law 5th ed p 366. Interestingly, Snyman argues that under the South African provisions relating to fraud treats as rape the following situation: a man is HIV infected and a woman is not HIV infected X acquires consent by misrepresenting to her that he is not HIV infected and he ends up infecting her with HIV. If it is clear that the woman would never have agreed to have sexual relations with the man if she had known that he was HIV infected. Snyman contends that in the light of the severe consequences flowing from the misrepresentation the consent should not be regarded as valid consent. JUDICIAL APPOINTMENT IN ZIMBABWE: DEFINING THE CONCEPT OF “FIT AND PROPER PERSON”

BY CHAKA MASHOKO1

INTRODUCTION As in other progressive jurisdictions,2 the Constitution of Zimbabwe provides that a person to be appointed to the office of a judge must be “a fit and proper person”3 although this concept is not defined in the Constitution. No guidance is given by the Constitution to the Judicial Service Commission (JSC) in determining what criteria to apply in selecting candidates and to ensure that the candidate for judicial appointment or promotion has all the necessary attributes. Constitutions have numerous open-ended definitions to allow the legislature and other subordinates to creatively formulate a comprehensive meaning of the open-ended terms. This allows for flexibility rather than rigidity in interpretation. In Zimbabwe, the Courts have defined the concept in respect of the admission and re-admission of legal practitioners.4 The Courts have opined that the requirement alludes to personal qualities of the applicant or candidate, with the object of maintaining the integrity and honour of the profession.5 The Courts decide whether the applicant is fit and proper in relation to such matters as prestige, status and dignity of the profession, and the integrity, standards of professional conduct and responsibility of legal practitioners. However, in practice, courts do not actually interrogate whether a candidate for admission as an attorney or legal practitioner has a good character or not. In the absence of objections, it will be assumed that the candidate is of good standing.

1 BL(Hon) LLB Legal practitioner; part-time lecturer of Ethics, Clinical and Practical Skills 2 Canada, India and South Africa. 3 See Sections 177(2); 178(2) and 179(2). 4 See In re Chikweche 1995(1) ZLR 235 (S); See also Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T). 5 In re Chikweche supra, p 244.

101 102 University of Zimbabwe Law Journal 2018

As regards appointment of judges, it is submitted that given the public importance of judicial office which is a public trust (since judicial authority derives from the people), there must be a more proactive approach from both the recommending authority and the appointing authority which should interrogate whether a candidate for appointment to the bench is suitable for and deserving of such a position. The word ‘fit’ has been taken to mean ‘qualified or suited to purpose, competent and deserving’, whilst the word ‘proper’ has been taken to mean ‘excellent, admirable, commendable, fine, goodly, of high quality, of good character or standing, honest, respectable, worthy, fit, apt, suitable’.6 The main consideration in this context is therefore whether in relation to the prestige, status, and dignity of the profession, and the responsibility, standards of professional conduct and integrity of practitioners, the applicant or candidate has shown himself or herself to be a fit and proper person. It is submitted that the above definition of ‘fit’ and ‘proper’ can also be applied to the selection and appointment or promotion to judicial office, having regard to international standards and principles relating to the judiciary. Historically, judges were appointed exclusively from the ranks of advocates (legal practitioners) with good standing. Although there is no agreement in international law as to the method of appointment, States are required to appoint judges through strict selection criteria and in a transparent manner. Although the Constitution of Zimbabwe does not expressly detail the content of these criteria, we are called upon to interpret them having regard to the nature and function of the judicial office as well as the powers that vest in the judiciary. To a large extent, international standards and principles also assist in this regard.7 In this paper, the author proposes to deal with the most pertinent ethical considerations, having regard to international

6 Kaplan (supra), p 783. 7 See (i) The Commonwealth (Latimer House) Principles on the Three Branches of Government, 2009; (ii) The Universal Charter of The Judge, 2009; (iii) The Bangalore Principles of Judicial Conduct, 2002. UZLJ Judicial Appointment in Zimbabwe 103 standards and principles as well as the constitutional provisions and, lastly, with the physical and mental attributes of the candidate. Most of the standards and principles to be discussed here, such as integrity, independence, equality, impartiality, competence and diligence, have already been given recognition to and found expression in the Judicial Service (Code of Ethics) Regulations, 20128 , and in the Judicial Services Act [Chapter 7:18]. The former provides for the standards and principles in extensor,9 whilst the latter provides for service regulations prescribing the codes of ethics for judicial officers.10 To that extent, the norms pertaining to “fit and proper”, in the context of this paper, have been codified. It would appear therefore that there may be no need for further legislative intervention in this regard since the provisions of these instruments appear to conform to the Constitution, and to international standards and principles.

APPROPRIATE QUALIFICATIONS Sections 177,178 and 179, respectively, of the Constitution of Zimbabwe deal with the qualifications of judges of the Constitutional Court, the Supreme Court, the High Court, the Labour Court and the Administrative Court. A person who is not appropriately qualified in terms of these provisions of the Constitution may not be appointed as a judge. The UN Basic Principles establish that: Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, sex, religion, political or other opinion, national, or social origin, property, birth or status, except that a requirement that a candidate for office must be a

8 Statutory Instrument 107/2012. 9 See Part II sections 4 to 20. 10 See section 18 of the Act. 104 University of Zimbabwe Law Journal 2018

national of the country concerned, shall not be considered discriminatory11 . The African Principles and Guidelines on the Right to a Fair Trial state that: The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability. No person shall be appointed to judicial office unless they have the appropriate training or learning that enables them to adequately fulfil their function.12 Similarly, the Universal Charter of the Judge stipulates that: The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualifications.13 The above principles relate to, among others, the candidate’s professional qualifications as an important criterion for appointment to, or promotion on the bench. This selection criterion is based on merit having regard to the candidate’s qualifications, skills, experience, ability and efficiency in assessing legal matters and applying the law. The candidate must have the ability to adequately fulfil their judicial function by virtue of the appropriate training and learning. However, academic qualification on its own does not suffice to satisfy this criterion. Legal knowledge, skill and experience must form part of that requirement. The following might be used as a guide: forensic skills, intellectual capacity, writing and analytical skills, ability to handle complex issues, knowledge and understanding of the law and its underlying principles, application of the law to the facts, knowledge of courtroom procedures, language skills, capacity of articulation, communication skills, administrative skills and breath of professional experience.14 The latter includes quasi-

11 UN Basic Principles and Guidelines on the Independence of the Judiciary, Principle 10. 12 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principle A. 13 Universal Charter of the Judge, Article 9. 14 Susannah Cowen, Judicial Selection in South Africa (University of Cape Town Democratic Governance and Rights Unit. Working Paper Series, p. 37. UZLJ Judicial Appointment in Zimbabwe 105 judicial experience relating to administrative or arbitration tribunals. In addition, the candidate’s appreciation of the judicial role in resolving disputes according to the facts and the law as well as in protecting individual rights should also be taken into account. These skills would ensure that the candidate will perform their duties with the requisite competence, diligence, efficiency and punctuality, and to enable improvements to the weaknesses and imperfections existing in the system of administration of justice, thereby fulfilling the judicial function .The assessment and views of professional colleagues, organisations that play a role in the administration of justice, and other relevant interest groups are also useful for the enquiry.

INTEGRITY ‘Integrity’ may be defined as: moral uprightness; honesty; wholeness; soundness.15 Members of the judiciary are associated with, among other things, honour, honesty and integrity and for these reasons they are viewed with special respect from society. In his address to the meeting of judges and resident magistrates held in Arusha, Tanzania on 5 March, 1984, the late President Julius Nyerere had this to say: There are jobs in our society which can be done by undisciplined people whose personal integrity can be called into question; being a Judge or Magistrate is not among them.16 Judges must show high moral character not only in the discharge of their duties but also in their private life, so as to protect the good reputation of their office. They must act honourably and avoid all conduct which would damage their reputation. The integrity of judicial officers serves to re-affirm the public’s faith in the judiciary and to uphold its reputation of honour. For the public to have confidence in the judiciary, the Bench should be free from blemish.

15 Concise Oxford Dictionary of Current English (8th Edition) 16 See Daily News (Tanzania), 16 March, 1984, p. 1. 106 University of Zimbabwe Law Journal 2018

In his paper titled “The Rule of Law and Human Rights: A Case Study of Kenya”, presented to the Law Society of Zimbabwe,17 Otiende Amollo cites the case of the removal of the then Deputy Chief Justice of Kenya, Nancy Baraza, from the judiciary. The case related to her conduct at a shopping mall in Nairobi, Kenya, on 31 December, 2011 where she allegedly by-passed a security personnel conducting body-screening, pinched her nose and threatened to shoot her. Following a public outcry, a tribunal was set up to investigate the conduct. The tribunal subsequently made a report to the President of Kenya with a finding that the Deputy Chief Justice was unfit to hold office on account of gross misconduct. Although she had appealed, she later opted to resign. In the United States, Oklahoma judge, Donald Thompson is reported to have been convicted of using a sex toy for his in- court masturbation!18 In the matter of Barak Singh v Jyoti Basu,19 India’s Supreme Court had this to say: Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the judicial-delivery system resulting in the failure of public confidence in the system. Further, in re Bombay v Uday Singh,20 the High Court of Judicature stated as follows: Acceptability of judgements depends upon the credibility of the conduct, honesty, integrity and character of the officer. The confidence of the litigating public gets affected or shaken by lack of integrity and character of the Judicial Officer. Thus, where a candidate for judicial office has previously engaged in or is likely to engage in any dishonourable or improper conduct, such as conflict of interest to advance

17 On the Walter Kamba Rule of Law Day Harare – Zimbabwe, 6 December, 2012. 18 Sydney Morning Herald, 30 June, 2006 “Judge convicted of using penis pump in court”. 19 (2005) 1 SCC 201. 20 (1997) 5 SCC 129. UZLJ Judicial Appointment in Zimbabwe 107 personal interest or those of family members or associates, soliciting for or accepting bribes, corruption, engaging in business or financial dealings that adversely reflect on their character or standing in society, disclosure of confidential information for the purpose of furthering or advancing personal financial or business dealings, or those of family members or associates, misappropriation of trust funds, subverting the law, or some other gross misconduct, he or she would not be a fit and proper person for appointment to judicial office or elevation.21 A candidate for judicial appointment or promotion must have a good record of trustworthiness, candour, honesty, avoidance conflict of interest, deference to the rules of recusal,22 and honouring his or her word. Integrity checks which include criminal record, lawsuits and civil judgments (including sequestration orders) against the candidate, findings of disciplinary and administrative tribunals relating to the candidate, business and financial dealings, financial propriety/ probity or malfeasance, sources of extra income or livelihood (bequests, gifts and loans received), lifestyle, social networks and social habits, would illuminate the integrity of the candidate. The assessments and views of professional colleagues are also useful for the evaluation of the candidate. In addition, the candidate’s appreciation of ethical rules and duties designed to protect the integrity of the bench should also be assessed.

TEMPERAMENT This refers to the manner of thinking, behaviour, or reaction expected of a judge,23 and to his or her demeanour. A fit and proper person for judicial office or promotion is one who recognises that judges hold office as a public trust, and that the courts belong to the people. He or she must recognise that the courts administer the law as a public service and the public must feel that their disputes will be resolved fairly and impartially. Therefore, with regards to the candidate’s

21 See Paradza v Minister of Justice and Others 2012 (1) ZLR 1 (S). 22 See S v Paradza 2004 (2) ZLR 324 (S). 23 Susannah Cowen, supra, p.47. 108 University of Zimbabwe Law Journal 2018 temperament, the evaluation must consider his or her industriousness, diligence, dignity, humility, courtesy, patience, open-mindedness, receptiveness, and freedom from bias. The Bangalore Principles of Judicial Conduct (2002) regard the courtesy and patience with which a judicial officer treats litigants, witnesses, lawyers and others as an essential part of his or her competence and diligence.24 Whilst a judicial officer is expected to be thorough and decisive, animosity, unnecessary interruptions, ill-tempered remarks, and arrogance have no place on the bench.25 Equally, sloth and tardiness in disposing of matters the candidate is seized with should not be tolerated. The evaluation of a candidate must therefore aim at ascertaining whether he or she embodies these ethical values and will be guided by them in performing his or her judicial functions.

EQUALITY AND IMPARTIALITY A fit and proper person for judicial appointment should recognise the diversity and pluralism in society, and the equality of all persons before the law. Since the law applies to all regardless of rank, status or standing within society, differences arising from race, ethnicity, colour, gender, religion, culture, belief, language, conscience, national origin, disability, age, marital status, sexual orientation and economic status are not material to, or determinative of any issue with which a judicial officer is seized.26 In his article,27 Lubert remarked: In a democracy, the enforcement of judicial decrees and orders (of courts) depends upon the public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially. Should the citizenry conclude, even

24 See Article 6.6. 25 See Jesse v Pratt & Anor 2001 (1) ZLR 48 (H); S v Musindo 1997 (1) 395 (H),412H-413B. 26 See Section 165(1)(a) Constitution of Zimbabwe. 27 Lubert S, ‘Judicial Ethics and Private Lives’ (1984-85), 79 NW University Law Review, 983. UZLJ Judicial Appointment in Zimbabwe 109

erroneously, that cases were decided on the basis of favouritism or prejudice rather than according to law and fact then regiments would be necessary to enforce judgements. A judge must not adjudicate over matters he or she has an interest in, whether personal, financial or morally. Where he or she sees that he or she may have a potential bias or interest in a matter, he or she must recuse himself or herself 28 There can be no place within the judiciary for discriminatory attitudes, and if a judge is to dispense justice in a diverse and pluralist society, he or she needs to have respect for difference.29 The evaluation of the candidate should ascertain whether the nominee recognises diversity and plurality; will be guided by ethical considerations, and treat all that appear before him or her equally.30

COMMITMENT TO CONSTITUTIONAL VALUES Judges are custodians of the Constitution. The values underlying our Constitution, such as supremacy of the Constitution, the rule of law, fundamental human rights and freedoms, recognition of the inherent dignity, worth and equality of each human being, gender equality, good governance, the principle of separation of powers, justice, accountability, and due respect for vested rights are expressed in s 3 thereof. A fit and proper person for judicial appointment must be personally committed to those values and to their realisation. Further, he or she must commit to the promotion, advancement, safeguarding and realisation of the fundamental human rights and freedoms provided for in Chapter 4 of the Constitution.31

28 ANZ (Pvt) Limited & Anor v Diamond Insurance Co. (Pvt) Ltd 2001 (1) ZLR 226 (H). 29 Susannah Cowen, supra, p.51. 30 See (i) S v Musindo (supra),412C-G; (ii) Eldridge v British Columbia (Attorney General) [1997] 3 S.C.R.624 (iii) President of RSA Rugby Football Union 1999 (4) SA 147 (CC). 31 See Section 165(1)(c) Constitution of Zimbabwe; Judge Cynthia A Baldwin ‘Pursuit of Liberty: A Legal Career’ Legal Forum Vol.6 No.4 December,1994, p.9. 110 University of Zimbabwe Law Journal 2018

Commitment to constitutional values also entails safeguarding and upholding the rule of law32 which judicial officers apply in resolving disputes through equal application of legal standards to all, based on the rules and principles that form the fabric and substance of the law. A candidates’ understanding and appreciation of the constitutional values and track record as a legal practitioner, state counsel, academic, magistrate or sitting judge can be a useful indication of commitment to the rule of law, the principles of democracy and to the upholding and promotion of constitutional values. Such information can be ascertained from law reports, court records, academic writings, and observations by professional colleagues as well as civic society.

CONTRIBUTION TO THE DEVELOPMENT OF JURISPRUDENCE Ideally, a candidate for judicial appointment or promotion must have contributed significantly to the development of national jurisprudence, particularly constitutional and human rights jurisprudence, and in relation to the advancement of social and economic justice. In this regard, the candidate’s track record as a legal practitioner in private practice, as state counsel, as an academic, as a magistrate or sitting judge, can provide a useful insight into his or her contribution. Such a record can be gleaned from the law reports on civil or criminal cases in which the candidate represented litigants or the state, of argument filed with the courts, or from the candidate’s academic writings or publications, or from judgements rendered as a magistrate or sitting judge.

INDEPENDENCE ‘Independence’ assumes ‘not subject to the control of any person, free to act as one pleases, autonomous, not influenced or affected by others’,33 or ‘freedom from control or influence of another or others’.34

32 See Section 165(1)(c) Constitution of Zimbabwe. 33 Shorter Oxford English Dictionary. 34 WordWeb Dictionary. UZLJ Judicial Appointment in Zimbabwe 111

In Uganda, President Museveni, in a televised address, mounted a direct attack on the Constitutional Court which had struck down an inconsistent Act of Parliament, accusing the judges of “usurping the power of the people”, and claiming that “the major work for the judges is to settle chicken and goat theft cases but not to determine the country’s destiny”. The government of Uganda orchestrated a large demonstration against the court. However, Honourable Bernard L. Shientag argues that: There can be no government of law without a fearless, independent judiciary. The independence of the judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his conscience.35 Judges must be accorded the independence to act according to their conscience and the justice of the case, free from pressures from governments, funding bodies, armies, or any other source of state power and influence that may possibly bear upon them.36 In the case of Paradza v Minister of Justice & Ors37 , Malaba J.A., stated as follows: There are two components of judicial independence. There is individual independence, which relates to the judge when he or she is performing adjudicatory functions of the State, that is to say, hearing cases and deciding upon the facts. There is the institutional independence, which secures the judiciary office, or courts, from the other organs of the State. Reference to the personal independence of the individual judge is assured through s 165(3) of the Constitution, which provides that “when making a judicial decision, a member of the judiciary must make it freely and without interference or undue influence”.

35 Benjamin N. Cardozo Memorial Lectures. 36 Geoffrey Robertson Q.C. - Judicial Independence: Some Recent Problems, October, 2011; see also Union of India & Ors v Pratibha Bonnerjea & Anor (1995) 6 SCC 765. 37 2012 (1) 1 (S) ,25. 112 University of Zimbabwe Law Journal 2018

It is imperative that judges are not subordinated to the executive, the legislature, or to any external control or influence. It is crucial that judicial officers have both the courage and the disposition to act with an independent mind38 and they are duty-bound to uphold the law without trace of fear, favour or prejudice, independently of any adverse consequences which may personally ensue.39 Judicial independence has been described as “the bedrock upon which the rule of law fundamental to a democratic society rests.”40 The candidate must understand the doctrine of separation of powers and appreciate the boundaries of judicial powers. Individual independence and an appreciation of the rationale or philosophical basis for such independence is a requirement for a candidate for judicial appointment, alongside the desire to benefit the public. It “is a quality which must come from within the heart ..., a quality which is part of the very fabric of existence of the Judge.”41 It goes beyond substantive and procedural independence to include the independence of mind of the judicial officer which entails a grounded knowledge on constitutionalism.42 Such independence is not meant to shield judges from legitimate public scrutiny for they are accountable to the public, whom their independence will protect. The object of the enquiry should therefore be to ascertain or establish:

38 Susannah Cowen, supra, p.17. 39 Gubbay, C. J: Speech delivered at the Opening of Legal Year of the High Court, Bulawayo, on 13 January,1992-Legal Forum Vol. 4,No. 2, March,1992, p.4. 40 The Hon. Catherine A Fraser, Chief Justice of the Supreme Court of Alberta ,Canada ‘Judicial Independence, Impartiality and Equality: A Canadian Perspective’ paper presented during the Judges Conference in Harare, Zimbabwe on 27 April,1998 Legal Forum, Vol.10, No.3, September, 1998, p.54. 41 Gubbay, C.J. ‘The separation of powers, with particular reference to the role of the Judiciary’ Speech delivered to the Joint Commonwealth Parliamentary Association/Inter-Parliamentary Union on 21 August,1991 - Legal Forum, Vol.3, No.4, December,1991, p.15. 42 Otiende Amollo ‘The Rule of Law and Human Rights: A Case Study of Kenya” op cit note 17. UZLJ Judicial Appointment in Zimbabwe 113

• whether the candidate is well-informed and understands the constitutional imperative of judicial independence and its value in the public interest; and • whether the candidate will have the courage and the disposition to act with an independent mind. The enquiry must also have regard to the candidate’s political allegiance or affiliation, sympathies and activities, business and commercial interests (including directorships and partnerships), membership of both private and public organisations, as well as social networks. A fit and proper person must be able to transcend these allegiances and interests.

PHYSICAL AND MENTAL FITNESS The candidate for judicial appointment or promotion, whether or not he or she suffers from some physical handicap, must be physically and mentally fit to be able to withstand the rigours of judicial office and to effectively carry out his function.

THE APPOINTMENT PROCESS Where a vacancy on the bench arise, the JSC announces the vacancy by advertising in the Press, indicating the number of posts available, and inviting members of the public to nominate suitably qualified persons to fill the positions.43 The advertisement will state the qualifications of judges as stipulated in the Constitution, including the requirement of “fit and proper person to hold office as a judge”. Members of the public intending to nominate candidates are required to complete and submit to the Commission, nomination forms to which must be attached the nominee’s curriculum vitae. The nominator simply completes a one-page form without giving the merits or demerits of the nominee but providing the nominee’s personal details guided by the provisions of the Constitution relating to qualifications. After the nomination process, the JSC Secretariat compiles a comprehensive master-list with details of the profiles of the candidates that satisfy the qualifications provided for in the

43 See Daily News, Thursday, 23 June, 2016, p.15. 114 University of Zimbabwe Law Journal 2018

Constitution. They then draw up a shortlist of candidates using the constitutional qualifications provided.44 No guidance is given to the Secretariat as to the criteria for “fit and proper person”. The interviewing panel consists of thirteen Commissioners only, all professionals, including the Chief Justice, the Attorney General, the Chief Magistrate, the Chairperson of the Civil Service Commission, representatives of the legal profession, a legal academic, a public accountant, and a human resources professional. There is no standard questionnaire for a pending interview. The set of questions for every interview is prepared and agreed upon by the Commissioners in a pre-interview meeting with a consultant on the day of the interview. This is meant to prevent the leaking of questions to the candidates before the interview and to prevent “fishing” by potential candidates for an impending interview. The Commissioners then agree on which questions each Commissioner will ask the candidate(s), after which process any member of the interviewing panel can pose any relevant question or require the candidate to expand on the answers given. The Chief Justice commences the interview based on the questions agreed upon in the pre-interview meeting. Thereafter, he will call upon the panellists, one by one, in the order agreed, to pose questions to the candidate. The panel will ask relevant questions, including those of a personal or social nature or of a technical nature to assess the level of knowledge and appreciation of the law and legal processes as well as any others relevant to the core duties of the position. It has been suggested that, from the interviews conducted to date, candidates should have an idea of what questions they should expect to be asked at the interview. It is submitted that there is no need for a law that obligates the JSC to publicise the criteria for selection, other than the qualifications stipulated in the Constitution, or for the candidates to know in advance the kind of questions to expect. By agreeing to nomination, and to submit themselves for

44 See ss 177, 178, 179 of the Constitution. UZLJ Judicial Appointment in Zimbabwe 115 selection and interview, the candidates ought to know whether their personal attributes and professional qualities qualify them as “fit and proper” persons to hold office as judge. Deliberations after the interview are held in camera and a vote is taken if there is no consensus among the panellists, with each member being entitled to one vote per candidate. Following the interviews, the JSC selects the best three candidates for each position and presents the list to the President, whereupon he must appoint one of the nominees to the judicial office concerned .In the event that the President does not consider any of the persons on the list suitable for appointment, he must require the Commission to provide another list, in which case the President must appoint one of the nominees on the new list. It does not appear that the President is required to give reasons to the Commission for declining the initial list of nominees. It is presumed (and hoped) that he will have objectively and properly applied his mind to the constitutionally stipulated qualifications.

CONCLUSION There is a need for regulations to guide the judicial selection process in Zimbabwe, and in that regard, it is necessary to mobilise all stakeholders _ the JSC, the judiciary, legal practitioners, academics and civil society _ to meet, debate and develop the criteria for short-listing and selection, as well as the guidelines for the judicial appointment process, within the confines of the Constitution, but having regard to the foregoing ethical values and standards. The Commission will be able to develop credible criteria for judicial appointments that will ensure that the judicial selection process not only selects the best candidates on merit, but is also non-controversial and readily acceptable to the public. One hopes that in this endeavour, the Commission will be able to garner the views, support and contributions of all relevant stakeholders, in order to come up with the correct criteria for “fit and proper person”. Whilst the Law Society of Zimbabwe has since 2014 been requested by the JSC to submit misconduct clearances for some of its members who have put themselves forward as candidates for judicial appointment, no comments have been 116 University of Zimbabwe Law Journal 2018 received from senior counsel from the advocates chambers. Further, there has been no contribution from the faculties of law in the local universities as well as from civil society organisations such as the Zimbabwe Lawyers for Human Rights. It would be desirable for these organisations and bodies to actively assist the Commission, particularly with regards to integrity checks. There has been criticism of the lack of transparency in the post-interview deliberations. However, it is submitted that the lack of publicity of the deliberations and final decisions is perhaps necessary to encourage robust debate so that the Commissioners freely express their views of the candidates. LIMITATION OF HUMAN RIGHTS IN INTERNATIONAL LAW AND THE ZIMBABWEAN CONSTITUTION

BY INNOCENT MAJA1

INTRODUCTION Human rights contained in international treaties, regional treaties and national constitutions are generally not absolute but are often qualified and subject to reasonable restrictions.2 Currie and de Waal argues that ‘[c]onstitutional rights and freedoms are not absolute. They have boundaries set by the rights of others and by important social concerns such as public order, safety, health and democratic values.’3 This essentially means that not all infringement of rights is unconstitutional. Rights can be limited or justifiably infringed if the reason for infringement is justifiable ‘in an open and democratic society based on human dignity, equality and freedom.’4 A discussion of the limitation of rights is crucial because the extent to which limitations to rights are considered legitimate determines the actual application and effectiveness of these rights. It is even more crucial in Zimbabwe where there is currently limited national jurisprudence on the extent to which rights can be limited in terms of section 86 of the Zimbabwean Constitution. This article is divided into two parts. The first part explores the limitation of rights in international law in a bid to establish

1 LLBs (Hons), LLM and LLD. Dean, Faculty of Law, University of Zimbabwe. This article was initially published in the 2017 Zimbabwe Electronic Law Journal and is now being republished with amendments and with the permission of the Zimbabwe Electronic Law Journal after going through the peer review process. 2 There have been convincing arguments that some rights have become absolute and cannot be derogated from. These include the right not to be tortured or subjected to cruel, inhuman and degrading treatment or punishment; the right not to be placed in slavery; the right to human dignity, etc. This aspect is not the focus of this article. 3 Iain Currie and Johan de Waal, The Bill of Rights Handbook, 6th Edition, 150 (Juta & Co. Ltd, Cape Town, 2014). 4 Currie above 151.

117 118 University of Zimbabwe Law Journal 2018 best practices. Part two analyses the limitation of rights in the Zimbabwean Constitution in a bid to provide some best practices that the Zimbabwe can use to interpret section 86 of the Constitution.

1. LIMITATION OF RIGHTS IN INTERNATIONAL LAW This section analyses the limitation of rights in international law. The focus is on the United Nations (UN), European and African human rights systems. The aim is to establish best practices that could be used to interpret section 86 of the Zimbabwean Constitution.

1.1 Limitation of rights in the UN human rights system The key provisions regarding the limitation of rights under the UN human rights system are article 29(2) of the Universal Declaration of Human Rights,5 articles 19(3) and 25 of the International Covenant on Civil and Political Rights6 (ICCPR) and article 4 and 5 of the International Covenant on economic, Social and Cultural Rights (ICESCR).7 There are, generally speaking, three conditions for legitimate limitation of rights provided for by the UN treaties namely:

5 Article 29(2) of the Universal Declaration provides that ‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’ 6 Article 19(3) of the CCPR states that ‘The exercise of the rights to [freedom of expression], carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary, (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order or of public health or morals.’ Article 25 of the CCPR insinuates that the limitation of a right should be a reasonable restriction. 7 Article 4 of the CESCR states that ‘The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’ UZLJ Limitation of Human Rights in International Law 119 a. The limitation must be provided by the law This condition requires that the limitation must have a clear legal basis. The law authorising the limit of the right must be a) publicly accessible; b) sufficiently precise to enable people to regulate behaviour and c) it must not confer unfettered discretion on the state to prevent risk of abuse and arbitrary exercise of discretion.8 b. The limitation must serve a legitimate aim The question that is normally asked is ‘[w]hat is the problem that is being addressed by the limitation?’ The legitimate aims refer to the interests of the state and the rights of others. Some of the enumerated aims include: i. respect for the rights and reputations of others; ii. respect for public morals; iii. protection of public order; iv. promoting the general welfare in a democratic society. c. Proportionality between end and means The proportionality principle demands that the means used by a state to limit a right must be proportional to the aim sought. Note 4, paragraph 35 of the UNHRC General Comment No. 34 states that ‘[w]hen a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.’

8 Note 4 paragraph 25 of the UNHRC General Comment No. 34 says ‘For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.’ 120 University of Zimbabwe Law Journal 2018

There are a number of considerations that need to be taken into account to justify that the means used by a state9 to limit a right is proportional to the aim sought. In a nutshell, proportionality includes aspects of suitability, subsidiarity and proportionality in the narrow sense.10 Suitability requires that the limitation should in principle lead to the legitimate aim which is sought after. Proportionality in the narrow sense requires a reasonable relationship between the infringement and the legitimate aim. It essentially follows that a greater infringement should further a heavier legitimate aim. The subsidiary test reviews whether there are other alternative less restrictive means to reach the legitimate aim.11

1.2 Limitation of rights in the European human rights system It has been established above that human rights do not apply absolutely but may be restricted through legitimate limitations. This section analyses how the European Convention on Human Rights (ECHR) limits human rights. There are, generally speaking, three12 conditions for legitimate limitation of rights provided for by the ECHR. a. Law of general application The limitation of rights provided for in the ECHR should have a basis in national law to avoid arbitrary limitations to rights.13

9 States are afforded some margin of discretion in this regard. The concept of margin of appreciation is discussed in section 1.2 below because its origins are traced in the European system and it is predominantly applied in that system. 10 Henrard, The right to equality and non-discrimination and the protection of minorities in Africa in S Dersso (ed) Perspectives on the rights of minorities and indigenous peoples in Africa (2010) 220. 11 JH Gerards Judicial review in equal treatment cases (2004) 49-55 52. 12 The fourth instance where rights may be temporarily limited is found in article 15 of the ECHR which allows temporary limitation of rights when there is a state of emergency. 13 See Kopp v Switzerland Eur. Ct. H. R., 25 March 1998 55-75 where the European Court stated that the regulation should be sufficiently precise in its formulation and accessible for the subjects. UZLJ Limitation of Human Rights in International Law 121 b. Legitimate aim The limitation’s object should belong to one of the explicitly enumerated legitimate aims. Even though the enumerated goals are broadly formulated, they all refer to the interests of the state and the rights of others.14 c. Proportionality between end and means The limitation should be necessary in a democratic society to meet the legitimate goal. The European Court interpreted the characteristics of a democratic society to include pluralism, tolerance, broadmindedness and respect for human rights.15 An example includes article 10(2) of the ECHR that permits limitation of the right to freedom of expression if it is limited by ‘law’ that is ‘necessary in a democratic society’ to serve certain circumscribed interests such as ‘the protection of health or morals’ and ‘the reputation or rights of others.’ The jurisprudence of the European Court introduced two key principles to regulate the justification of state interference with human rights namely the proportionality principle and the deference or margin of appreciation principle. This section analyses these two principles to evaluate how they impact the limitation of human rights provided for in the ECHR. ci. Proportionality principle It has already been established above that a state can limit a right if there is an objective and reasonable justification and the justification has to be evaluated taking into account its goal, as well as its effect, assessed against the background of the principles inherent in democratic societies. The limitation has to have a legitimate aim and there must be a reasonable and proportional relationship between this aim and the means used to limit the right. The required proportionality is evaluated using the basic values of a democratic society such as tolerance, diversity and broadmindedness.16

14 K Henrard Devising an adequate system of minority protection: Individual human rights, minority rights and the right to self- determination (2000) 133. 15 Dudgeon v UK ECHR (22 October 1981) Ser A 45. 16 See the recent cases of Tanase v Moldova ECHR (27 April 2010) 41-44 and Animal Defenders International v United Kingdom ECHR (22 April 2013) 39-43. 122 University of Zimbabwe Law Journal 2018

The proportionality principle was introduced in the Belgian Linguistic Case17 where it was established that the means used by a state to limit a right must be proportional to the aim sought. Ever since then, the proportionality principle has been developed by the European Court to police the justification of state interference with human rights, ensuring that the state places no greater limitation on rights than necessary.18 Examples include Olsson v Sweden19 and Glasenapp v Germany20 where the European Court reiterated that the means used by a state to limit a right must be proportional to the aim sought. The proportionality test is used to assess the means and side effects of state action. For instance, in Dudgeon v UK,21 the European Court assessed the proportionality of the means used by the state to ‘preserve public order and decency’ in regulating homosexual conduct in criminal law. It is minimally used to assess the legitimacy of the state’s aims.22 Because human rights are based on interests, the assessment employed by the proportionality principle involves a flexible balancing of the competing interests of an individual and the state as a whole.23 In Hatton v UK, the European Court explained that in assessing whether the means used by the state to limit rights is justifiable, ‘regard must be had to the

17 Belgian Linguistic case (1968) 1 EHRR 252 specifically states that ‘Article 14 is violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.’ See also the 2002 Inter- American Court decision of Cantos v Argentina Series C No. 97 (2002) IACtHR) [54]. 18 A Legg, The margin of appreciation in international human rights law: Deference and proportionality, (2012), Oxford University Press, 178. 19 Olsson v Sweden, ECHR (24 March 1988) Ser A 130 67. 20 Glasenapp v Germany, ECHR (28 August 1986) Ser A 104 90. 21 Dudgeon v UK ECHR (22 October 1981) Ser A 45. See also Christine Godwin v UK No. (2002) EHRR. 22 Thlimmenos v Greece No. 34369/97 (2000) EHRR) where the European Court found that, as a result of disproportionality, the state’s conduct lacked a legitimate aim. 23 S Tsakyrakis, ‘Proportionality: An assault on human right?’ (2009) 7 (3) International Journal on Constitutional Law 468 expresses concern that is rights can be overridden by other interests when placed in the balance, then human rights are themselves at risk. UZLJ Limitation of Human Rights in International Law 123 fair balance that has to be struck between the competing interests of the individual and of the community as a whole.’24 According to Young, James & Webster v UK, ‘democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.’25 cii. The margin of appreciation or deference principle Related to the principle of proportionality is the concept of margin of appreciation or deference.26 The margin of appreciation refers to the discretion given State Parties to the ECHR to strike a balance between the common good of society (national interests) and the interests of the individual (individual rights) when they restrict human rights.27 It allows states a ‘margin’ or latitude to determine issues that sovereign national institutions are better placed to ‘appreciate’ such as the exact content of rights and the necessity of a restriction.28

24 Hatton v UK No. 36022/97 (2003) (ECtHR) (GC) [98]. See also Cossey v UK No. 10843/84 (1990) (ECtHR) [41] that highlights that ‘É the notion of proportionality between a measure or a restriction and the aim which it seeks to achieve. Yet that notion is already encompassed within that of the fair balance that has to be struck between the general interest of the community and the interests of the individual.’ 25 Young, James & Webster v UK, ECHR (13 August 1981) Ser A 44 63. 26 The precise definition of the margin of appreciation is illusive. A number of authors have attempted to describe it. For example, P Mahoney, ‘Universality versus subsidiarity in the Strasbourg case law of free speech: Explaining some recent judgments’ (1997) EHRLR 364, 370 describes it as an interpretational tool that determines which human rights matters require a uniform international human rights standard and which one require variation from state to state. JG Merrills, The development of international law by the European Court of Human rights, 2nd Ed, Manchester UP, Manchester 1993) 174-5 describes it as a doctrine that establishes whether it is a matter of national sovereignty or for Tribunals to demarcate the contours of a particular human rights standard. 27 M Tu_may, ‘The “margin of appreciation doctrine” developed by case law of the European Court of Human Rights’ (2008) 5(2) Ankara Law Journal 202. 28 Handyside v UK, ECHR (7 December 1976) Ser A 24 48-49 argues that ‘It is not possible to find in the domestic law of the various Contracting 124 University of Zimbabwe Law Journal 2018

It is important to note that the discretion given to states is limited in that the European Court supervises it. In Handyside v UK, the European Court made it clear that the state does not have unlimited power of appreciation and the margin of appreciation has to be supervised.29 Sunday Times v UK makes it clear that in supervising the state’s margin of appreciation, the European Court applies the proportionality principle30 to ascertain whether the means used by a state to limit a right is proportionate to the legitimate aim pursued. Chassagnou v France31 establishes that in a democratic society marked with pluralism, tolerance and broadmindedness, the state’s margin of appreciation should be exercised in a way that ensures the protection of minorities. However, the European Commission and European Court jurisprudence reveals that state interests often prevail in the balancing process.32 Although the state’s margin of

States a uniform European conception of moralsÉ By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. 29 Handyside v UK, ECHR (7 December 1976) Ser A 24 49 states that ‘Article 10(2) does not give the Contracting States an unlimited power of appreciation. The CourtÉ is responsible for ensuring the observance of those States’ engagements, [and] is empowered to give the final ruling on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expressionÉ The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measures challenged and its ‘necessity’É’ 30 Sunday Times v UK (1991) EHRR 242 242 holds that ‘[t]he Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient.’ 31 Chassagnou v France (1999) EHRR 112. 32 See Handyside v UK, ECHR (7 December 1976) Ser A 24 and Silver and others v UK ECHR (25 March 1983) Ser A 61. UZLJ Limitation of Human Rights in International Law 125 appreciation varies depending on the legitimate goal relied upon, the (non) existence of a European standard33 and the nature of the right infringed,34 states have generally been given a wide margin of appreciation regarding the actual implementation of rights enshrined in the ECHR.35 In Ireland v UK, the European Court established that in article 15(1) of the ECHR gives the state a wide margin of appreciation when limiting rights during a state of emergency. Such a broad margin of appreciation has the effect of limiting the enjoyment of the rights concerned. In Sidiropoulos and five others v Greece,36 the European Commission accepted that the state’s margin of appreciation concerning the assessment of the need in a democratic society for a limitation is wide where matters of national security are concerned. Henrard37 observes that the state’s wide margin of appreciation is strongly influenced by textual constraints and the way state interests and existent state structures often prevail in the balancing process inherent in the assessment of a possible violation of a provision of the ECHR. This has led to the supervision by the European Court and European Commission to be criticised as too subsidiary and deferent to the Contracting state.38 Such deference reduces the level of protection of vulnerable groups in a state. The preceding discussion of the ECHR highlights that the jurisprudence from the European Court and European Commission shows that human rights can be limited by a law of general application serving a legitimate aim taking into

33 See Marckx v Belgium, ECHR (13 June 1979) Ser A 31 41. 34 Like in Campbell v UK, ECHR (25 March 1992), Series A 233 46-47 and Lingens v Australia, ECHR (8 July 1986) Ser A 10342. 35 United Communist Party of Turkey and others v Turkey, (1988) EHRR 57. 36 Sidiropoulos v Greece [1997] ECHR 49. 37 K Henrard Devising an adequate system of minority protection: Individual human rights, minority rights and the right to self- determination (2000) 75. 38 K Henrard Devising an adequate system of minority protection: Individual human rights, minority rights and the right to self- determination (2000) 75. 126 University of Zimbabwe Law Journal 2018 account the proportionality principle and the margin of appreciation given to states.

1.3 Limitation of rights under the African human rights system Under the African human rights system, human rights may be legitimately limited by states in three ways in terms of the African Charter on human and Peoples’ Rights (ACHPR).39 First, rights can be limited by ‘claw back’ clauses such as ‘for reasons… previously laid down by law,’40 ‘within the law,’41 ‘subject to law and order’42 and ‘provided he abides by the law.’43 The obvious concerns are that state parties could use ‘claw back’ clauses to unduly restrict the rights provided for in the ACHPR.44 However, the African Commission has interpreted the term ‘law’ as international law or international human rights standards,45 thus minimising the negative effects of these clauses. Second, human rights in the ACHPR can be limited using right- specific-norm-based limitations46 that requires the limiting law to serve some stipulated objective like national security, law and order, public health or morality,47 health, ethics and rights and freedoms of others.48 Interestingly, in Amnesty

39 This section has heavily relied on F Viljoen International human rights law in Africa (2012) 329-333. 40 Art 6 of the ACHPR. 41 Art 9 of the ACHPR. 42 Art 8 of the ACHPR. 43 Art 10(1) and 12(1) of the ACHPR. 44 See E Bondzie-Simpson, ‘A critique of the African Charter on Human and Peoples’ Rights’ (1988) 31 Howard Law Journal 643, 661. 45 See Communications 105/93, 128/94, 152/96 (joined), Media Rights Agenda and others v Nigeria (2000) AHRLR 200 (ACHPR 1998) (12th Annual Activity Report); Communication 101/93, Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACHPR 1995) (8th Annual Activity Report) para 15 and Communications 27/89, 46/90, 49/90, 99/93 (joined), Organisation Mondiale Contre la Torture and others v Rwanda (2000) AHRLR 282 (ACHPR 1996) (10th Annual Activity Report). 46 F Viljoen International human rights law in Africa (2012) 329. 47 Art 12(2) of the ACHPR. 48 Arts 8 and 11 of the ACHPR. UZLJ Limitation of Human Rights in International Law 127

International v Zambia, the African Commission treated right- specific-norm-based limitations as ‘claw back’ clauses that can only be limited by international law or international human rights standards.49 Third, human rights in the ACHPR can be limited using the general limitation clause in article 27(2) of the ACHPR which says ‘[t]he rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.’ 50 In practice, the African Commission applies the proportionality test to establish whether a limitation is legitimate and justifiable.51 The limitation should be by law of general application. The impact, nature and extent of the limitation is weighed against the legitimate state interest serving a particular goal. The limitation should not have the effect of obliterating and rendering the right concerned illusory.52 Whenever there is more than one way of achieving an objective, the less invasive route should be followed.53 It is interesting to note that in Legal Resources Foundation v Zambia,54 the African Commission established that that the limitation of rights cannot be solely based on popular will but the proportionality principle in article 27(2) of the ACHPR. This is crucial for the protection of vulnerable and non- dominant groups within a state.

49 Communication 212/98, Amnesty International v Zambia (2000) AHRLR 325 (ACHPR 1999) (12th Annual Activity Report) para 50. 50 Communications 105/93, 128/94, 152/96 (joined), Media Rights Agenda and others v Nigeria (2000) AHRLR 200 (ACHPR 1998) (12th Annual Activity Report) paras 68 and 77 established that the only legitimate limitation to rights in the ACHPR is article 27(2) of the ACHPR. 51 See F Viljoen International human rights law in Africa (2012) 331. 52 Communications 105/93, 128/94, 152/96 (joined), Media Rights Agenda and others v Nigeria (2000) AHRLR 200 (ACHPR 1998) (12th Annual Activity Report) para 65. 53 Communication 242/2001, Interights and others v Mauritania (2004) AHRLR 87 (ACHPR 2004) (17th Annual Activity Report) para 82. 54 Communication 211/98, Legal Resources v Zambia (2001) AHRLR 84 (ACHPR 2001) (14th Annual Activity Report) para 69. 128 University of Zimbabwe Law Journal 2018

One question that has arisen is whether and to what extent the European principle of margin of appreciation discussed above applies in the African human rights system. In Prince v South Africa, the African Commission acknowledged that the principle of subsidiarity and the doctrine of margin of appreciation apply to the ACHPR since states are primarily responsible for protecting rights in the ACHPR.55 However, the African Commission did not allow a restrictive reading of the doctrines of deference and margin of appreciation which advocates for the hands-off approach by the African Commission on the mere assertion that its domestic procedures meet more than the minimum requirements of the African Charter. This would oust the African Commission’s mandate to monitor and oversee the implementation of the African Charter. Put differently, the doctrine of margin of appreciation does not preclude an assessment by the African Commission of the reasonableness of the limitation of rights in terms of section 27(2) of the ACHPR.56 This approach is similar to the European Court’s approach that also indicates that the margin of appreciation goes hand in hand with European supervision (though the latter is inversely related to the width of the margin). It is clear from the discussion in section 1 that human rights are not absolute but can be limited by claw-back clauses, norm-based limitations, the proportionality principle and the margin of appreciation given to states. However, the limitation should not have the effect of obliterating and rendering the right concerned illusory.

55 Communication 255/02, Prince v South Africa (2004) AHRLR 105 (ACHPR 2004) para 51 establishes that ‘Similarly, the margin of appreciation doctrine informs the African Charter in that it recognises the respondent state in being better disposed in adopting national rules, policies and guidelines in promoting and protecting human and peoples’ rights as it indeed has direct and continuous knowledge of its society, its needs, resources, economic and political situation, legal practices, and the fine balance that needs to be struck between the competing and sometimes confliction forces that shape its society.’ 56 F Viljoen International human rights law in Africa (2012) 333. UZLJ Limitation of Human Rights in International Law 129

2. LIMITATION OF RIGHTS IN THE ZIMBABWEAN CONSTITUTION The Zimbabwean Constitution provides three possible ways in which rights can be legitimately limited namely (a) through a general limitation clause, (b) during public emergency and (c) through other provisions of the constitution. a. Limitation through a general limitation clause Section 86 of the Zimbabwean Constitution is considered as the general limitation clause. It has two interesting aspects. First, section 86(3) highlights rights that may be potentially absolute in the Zimbabwean Constitution namely the right to human dignity; the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment; the right not to be placed in slavery or servitude; the right to fair trial; the right to obtain an order of habeas corpus and the right to life except to the extent specified in section 48 of the Constitution. Section 86(3) says ‘No law may limit the following rights in this Chapter, and no person may violate them…’ The use of may is not peremptory but discretionary in section 86(3). This potentially gives the Court the discretion to determine whether the mentioned rights are absolute or discretionary. The second fundamental aspect of section 86 is that it provides the circumstances under which the rights enshrined in the Bill of rights may be limited. Currie and de Waal convincingly argue that the existence of a limitation clause does not mean that the rights in the Bill of rights can be limited for any reason but can only be limited for a justifiable reason. Woolman et al57 argue that the limitation clause has a four- fold purpose. First, if functions as a reminder that the rights enshrined in the Bill of Rights are not absolute. Second, the limitation clause reveals that rights may only be limited where and when the stated objective behind the restriction is designed to reinforce the constitutional values. Third, the test set out in the limitation clause enjoins courts to engage in a balancing exercise in order to arrive at a global judgment on proportionality. Finally, the limitation clause serves as a

57 S Woolman, T Roux & M Bishop Constitutional law of South Africa: Student edition (2007) 34-1 to 34-2. 130 University of Zimbabwe Law Journal 2018 reminder that the counter-majoritarian dilemma is neither a paradox nor a problem, but an ineluctable consequence of a country’s commitment to living in a constitutional democracy.58 The Zimbabwean Constitutional Court is yet to come up with the approach that a court should take when interpreting section 86 of the Constitution. In South Africa where section 36 of the Constitution has provisions almost similar to section 86 of the Zimbabwean Constitution, the courts usually ask two fundamental questions. First, whether a right in the Bill of Rights has been violated, impaired, limited or infringed by law or conduct?59 Second, if the answer to the first question is in the affirmative, whether the infringement can be justified as a permissible limitation of the right?60 A careful look at section 86 reveals that the limitation of rights is essentially two-fold. First, a right should be limited by a law of general application. It would be interesting for the Constitutional Court to define what a law of general application would entail. South African jurisprudence has defined the law of general application as the rule of law61 that includes legislation,62 common law63 and customary law64

58 Put differently, powers of judicial review are best understood not as part of a battle for ascendancy between courts and legislatures or as a means of frustrating the will of the political majority, but rather as a commitment of South Africa’s basic law to shared constitutional competence. 59 In some cases, the Constitutional Court has dispensed with this first question and has proceeded on the basis of the second inquiry alone. Such cases include Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) and S v Jordan 2002 6 SA 642 (CC) [28] – [29]. 60 Currie & de Waal (above) 153. This approach is consistent with how Zimbabwean Court interpreted the Bill of rights before the new constitution came into effect. See Bhatti & Anor v Chief Immigration Officer & Anor 2001 (2) ZLR 114 (H) 61 President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC). 62 It includes Acts of Parliament and delegated legislation. See Larbi- Odam v MEC for Education (North West Province) 1998 1 SA 745 (CC) 27. 63 Policy, practice and contractual provisions do not qualify as law of general application. See Hoffmann v South African Airways 2001 1 SA (CC) 41 and Barkhuizen v Napier 2007 5 SA 323 (CC) 26. 64 Du Plessis v De Klerk 1996 3 SA 850 (CC) 44 & 136. UZLJ Limitation of Human Rights in International Law 131 that is impersonal,65 applies equally to all and is not arbitrary in its application. Second, the law of general application should be fair, reasonable, necessary and justifiable66 in an open and democratic society that is based on openness, justice, human dignity,67 equality and freedom. Currie and de Waal convincingly contend that68 ‘[it] must be shown that the law in question serves as a constitutionally acceptable purpose and that there is sufficient proportionality between the harm done by the law (the infringement of fundamental rights) and the benefits it is designed to achieve (the purpose of the law).’ In the same vein, S v Makwanyane established that ‘[t]he limitation of constitutional rights for a purpose that is reasonable in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality.’69 The proportionality principle (discussed above) is considered as central to a constitutional democracy.70 Section 86(2) lists six factors that a court should take into account when it determines whether or not a limitation is reasonable and justifiable in a democratic society. Five of these factors are substantially similar to the factors that constituted proportionality in the Makwanyane case are used to determine proportionality. The following are the factors: a. The nature of the right or freedom A court is usually enjoined to assess what the importance of a particular right is in the overall constitutional scheme vis a

65 Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC). 66 Devenish GE (2005) The South African Constitution (LexisNexis Butterworths: Durban) 181 says the limitation should be reasonable and proportional. 67 Section 86(3)(b) of the Constitution makes it clear that human dignity is one of the rights that cannot be limited. 68 Currie & de Waal (above) 163. 69 S v Makwanyane 1995 (3) SA 391 (CC) [102]. 70 DM Beatty Ultimate rule of law (2005) 163 argues that ‘[t]he fact is that proportionality is an integral, indispensible part of every constitution that subordinates the system of government it creates to the rule of law. It is constitutive of their structure, an integral part of every constitution by virtue of their status as the supreme law within the nation state.’ 132 University of Zimbabwe Law Journal 2018 vis the justification of its infringement. It would therefore follow that a right that is important to the Constitutional ambition to create democratic society based on values embodied in section 3 of the Constitution will carry a lot of weight in the exercise of balancing the right against the justification for its infringement. b. The purpose of the limitation Reasonableness usually demands that the limitation of a right must serve some worthwhile and important purpose in a constitutional democracy. Unlike the SA Constitution that does not list acceptable purposes of the limitation, section 86(2)(b) indicates that the limitation should be ‘…necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest.’ It will be very interesting to see how the Zimbabwean Constitutional Court will interpret this provision. c. The nature and extent of the limitation This factor requires the court to assess the way in which the limitation of a right affects the right concerned. South African Courts have established that this factor looks at the effects of the limitation on the right concerned and not on the right holder.71 Essentially, the law that limits the right should not do more damage to the right than is reasonable for achieving its purpose.72 d. The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others. This requirement awakens to the reality that rights are not exercised in isolation but should take into account the rights of others. e. The relationship between the limitation and its purpose. This factor requires that there be a good reason for the infringement of a right. The court should make a factual inquiry

71 S v Meaker 1998 8 BCLR 1038 (W). 72 S v Manamela 2000 3 SA 1 (CC) 34. UZLJ Limitation of Human Rights in International Law 133 on whether or not there is proportionality between the harm done by a limitation of right and the benefits that the limiting law seeks to achieve. If the limiting law does not or barely contributes to achieving the purpose of limitation, such law will not be regarded as a reasonable and justifiable limitation of a right. Interestingly, section 86(2)(b) of the ZIM Constitution qualifies this factor by requiring the court to specifically assess whether the limitation ‘… imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose.’ f. Whether there are less restrictive means of achieving the purpose of the limitation This requires courts to assess whether the means used to restrict a right is the best possible means to achieve the purpose of a limitation or there are other means that can be used to achieve the purpose that a limitation of rights seeks to achieve without restricting the limited right at all or restricting the limited right to a smaller extent. Currie and de Waal73 argue that to be legitimate, a limitation of a fundamental right must achieve benefits that are in proportion to the costs of limitation. It follows therefore that a limitation of a right can be deemed not proportionate if the state could employ other means to achieve the same ends that will not restrict the limited right at all or will restrict the limited right to a small extent. South African Courts have established that the limitation is not be proportional if there are less restrictive (but equally effective) means that can be employed to achieve the same purpose of the limitation.74 It is therefore clear from the above discourse that constitutional rights are not absolute but qualified. Constitutional rights can be legitimately limited by a law of general application that is fair, reasonable, necessary and justifiable in an open and democratic society that is based on openness, justice, human dignity, equality and freedom.

73 I Currie et al (above) 170. 74 S v Makwanyane 1995 3 SA 391 [123] and [128]. 134 University of Zimbabwe Law Journal 2018 b. Limitation of rights in emergency situations Section 87 of the Constitution permits the limitation of rights in the Bill of Rights in emergency situations. Four things are worth noting about this limitation. First, a limitation of this nature requires that there be a gazetted written law that provides for measures to deal with situations during a period of public emergency. Second, the limitation imposed on the rights must not be greater than is strictly required by the emergency. Third, the limitation must now indemnify the state for any unlawful acts. Forth, the limitation does not apply to the right to human dignity; the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment; the right not to be placed in slavery or servitude; the right to fair trial; the right to obtain an order of habeas corpus and the right to life except to the extent specified in section 48 of the Constitution. Fifth, the second schedule to the Constitution obliges an emergency law that permits preventive detention to provide for the establishment of a tribunal to review cases of detainees. The schedule further affords detainees in public emergencies rights to review of detention, be given reasons of detention within 7 days, access to a Legal Practitioner (detainee’s own or provided by the state), humane treatment and access to information in a language understood by the detainee. c. Limitation of rights by other provisions of the constitution Another possible limitation to rights is by way of other provisions of the Constitution that specifically qualify the rights concerned. This comes in two forms. First, there are claw back clauses. For instance, section 59 of the Constitution limits the right to demonstrate and present a petition by subjecting them to peaceful exercise. Section 64 of the Constitution limits the rights to choose a profession, trade or occupation by discretionary subjecting them to regulation by law. Second, the Constitution contains right-specific-norm-based limitations. For example, property rights in section 73 are limited by interests of defence, public safety, public order, public morality, public health, among others in subsection 3. UZLJ Limitation of Human Rights in International Law 135

Environmental rights,75 right to education,76 rights of the elderly77 and rights of persons living with disabilities78 are subject to availability of resources and progressive realisation.

3. CONCLUSION It is clear from the above that human rights contained in international treaties, regional treaties and national constitutions are generally not absolute but are often qualified and subject to reasonable restrictions. The restrictions range from general limitation clauses, limitations during emergencies to limitations of rights by other provisions of constitutions and treaties.

75 Section 73(3) of the Constitution. 76 Section 75(4) of the Constitution. 77 Section 82 of the Constitution. 78 Section 83 of the Constitution. PUBLIC SERVICE BROADCASTING AND THE RISK OF STATE CAPTURE: THE CASE OF THE ZIMBABWE BROADCASTING CORPORATION

BY LYNDON NKOMO1

1. BACKGROUND Broadcasting in Zimbabwe has been a contested terrain since the establishment of the Rhodesia Broadcasting Corporation, (RBC)2 . The Rhodesian Government took advantage of the RBC to spread out its propaganda throughout the country. This was because, broadcasting, whether radio or television, has a pervasive impact,3 for instance, the intensity of the genocide in Rwanda was inter alia fuelled by repeated messages of tribal hatred expressed over Radio-Television Libre des Mille Collines (RTLMC).4 The power of words, more so, visuals, hit directly into the minds of listeners and viewers, whether consciously or unconsciously and the repetition of the same messages make known falsehoods to sound real and truthful. Broadcasting has the potency to transform public perceptions

1 Mr Nkomo holds a Bachelor of Laws (Honours) (LLB. (Hons)) degree from the University of Zimbabwe, Master of Laws (LLM) (Communications Laws) degree from the University of the Witwatersrand, Johannesburg, South Africa and a Master of Business Administration (MBA) degree from the University of Zimbabwe. He is a registered Legal Practitioner, Notary Public and Conveyancer whose research interests are in Human Rights with special focus on freedom of expression, privacy, Telecommunications, Broadcasting and Cyber Laws. 2 Dumisani Moyo, ‘From Rhodesia to Zimbabwe: Change without Change? Broadcasting Policy Reform and Political Control’, Media, Public Discourse and Political Contestations in Zimbabwe, Henning Melber (Ed), 2004 p12. 3 Walter G. Soluderlund and Kai Hildebrandt (2004) Canadian Newspaper Ownership in the Era of Convergence: Rediscovering Social Responsibility Preface pg. XV See also Jonathan D. Wallace, “The Scepter of Pervasiveness, Pacifica New Media and Freedom of Speech”, https://object.cato.org/sites/cato.org/files/pubs/pdf/bp-035.pdf Accessed on 3 February 2017. 4 RwandanStories, http://www.rwandanstories.org/genocide/ hate_radio.html Accessed on 3 February 2017.

136 UZLJ Public Service Broadcasting, Risk of State Capture137 and understanding of issues of public interest. These views explain why broadcasting has always been a contested terrain in many countries ruled by oppressive regimes. The desire by some public officials to act as information gate valves is correspondingly high.5 As a consequence thereof, they put in place stringent broadcasting regulations to create legitimate legal excuses to discourage media pluralism and they only award radio and television broadcasting licences to persons or companies linked to the governing regime.6

2. INTRODUCTION Until the Capital Radio vs Minister of Information 2000 (2) ZLR 243 (S) decision in which the Supreme Court declared as unconstitutional the monopoly on broadcasting services created by s 27 of the Broadcasting Services Act (BSA), Chapter 12:01, the Government of Zimbabwe was reluctant to liberalise the sector. Section 27 of the BSA gave Zimbabwe Broadcasting Corporation (ZBC) an exclusive right to provide broadcasting services in Zimbabwe7 . What then followed after that decision were vigorous efforts employed by the Government to frustrate the execution of the judgment through agents like the Zimbabwe Republic Police (ZRP). The order issued by the Supreme Court in the Capital Radio vs Minister of information (Supra) allowed Capital Radio to; (a) operate and provide a broadcast service from within Zimbabwe. (b) import into Zimbabwe all radio and other broadcast equipment and to operate a commercial radio station within and outside Zimbabwe.8

5 The Financial Gazette, “Government Cancels ZBC/Econet Deal”, 1 September 2016, http://www.financialgazette.co.zw/government-cancels-zbceconet- deal/ Accessed on 15 February 2017 6 Zimbabwe Daily, ‘New radio licences a “farce” and “unacceptable” – Tsvangirai ‘, 25 November 2011, http://www.thezimbabwedaily.com/ news/9761-new-radio-licences-a-farce-and-unacceptable- tsvangirai.html Accessed on 15 February 2017. 7 Capital Radio vs Minister of Information 2000 (2) ZLR 243 (S) at pg244 8 Ibid, pg244 138 University of Zimbabwe Law Journal 2018

ZRP seized Capital Radio’s broadcasting equipment in order to frustrate the latter’s efforts to commence broadcasting services until the High Court issued an interdict restraining them from hindering Capital Radio from broadcasting and to return the equipment which ZRP had seized. Chatikobo J in Capital Radio (Pvt) Limited vs Minister of Information and Others 2000 (2) ZLR 265 (H) at 269 ordered that the warrant of search and seizure which ZRP had used to seize Capital Radio’s broadcast equipment was invalid. He further ruled that in light of the Capital Radio (Pvt) Limited vs Minister of Information (1) 2000 (2) ZLR 243 decision, there was no offence which Capital Radio (Pvt) had committed. ZRP were, therefore, interdicted from interfering or confiscating Capital Radio’s broadcasting equipment. The Zimbabwe Republic Police resisted the interdict and Capital Radio (Pvt) Limited made another application for contempt of court in the matter of Capital Radio (Pvt) Limited vs Minister of Information and Others (3): In re Ndlovu.9 The facts of that matter are that after Chatikobo J’s order in the matter of Capital Radio (Pvt) Limited vs Minister of Information and Others10 (supra) was served on Zimbabwe Republic Police’s Assistant Commissioner Liberman Ndlovu, he refused to obey the order indicating that ‘…he would not obey it as he did not take orders from the court but only from his superiors.’11 It was further indicated during the hearing that Assistant Commissioner Liberman Ndlovu also disregarded the advice of the Attorney General not to proceed with the search and seizure. Assistant Commissioner Liberman Ndlovu was reported as having broken down the doors to the Capital Radio’s studio which was housed at the Monomotapa Crown Plaza Hotel in Harare and seized broadcasting equipment notwithstanding the existence of a valid court order. He was found guilty of contempt of court. In order to further frustrate the efforts by Capital Radio’s efforts to operate a radio broadcasting station the Government of Zimbabwe issued the Presidential Powers (Temporary

9 2000 (2) ZLR 289 (H) 10 2000 (2) ZLR 265 (H) 11 Capital Radio Case (Note 6 above) pg. 291 UZLJ Public Service Broadcasting, Risk of State Capture139

Measures) Broadcasting Regulations 2000. These regulations were enacted as a stop gap measure to fill the legal lacuna created by the declaration made by the Supreme Court in Capital Radio (Pvt) Limited vs The Minister of Information, Postal and Telecommunications.12 As noted earlier the Supreme Court had ruled that s27 of the Broadcasting Act 12:01 was unconstitutional in that the monopoly it granted to Zimbabwe Broadcasting Corporation (ZBC) was an infringement of the right to freedom of expression guaranteed under s20(1) of the old Constitution of Zimbabwe. The same order also struck down s14 of the Radiocommunications Services Act [12:04] for the same reason. The Presidential Powers (Temporary Measures) Broadcasting Regulations, 2000 were then superseded by the Broadcasting Services Act, 2001, [Chapter 2:06] and this was about the same time Professor Jonathan Moyo was appointed Minister of Information. Prof. Jonathan Moyo’s reign as Minister of Information was characterised by assaults on and closures of private television broadcasters and print media houses.13 He achieved this through some far reaching general media and broadcasting reforms which were meant to entrench the State’s control of the public broadcaster the ZBC and other State-Owned Media houses like the Zimbabwe Newspaper Group Limited rather than promote media pluralism. At that time, ZBC TV was leasing its second television station to Joy TV, Munhumutapa African Broadcasting Corporation and LDM Broadcasting who were sharing broadcast air time during the day for broadcasting services provided within a 70km radius around Harare.14 These private broadcasters faced serious operational challenges in that they were not operating on the basis of broadcast licences issued to them but on the basis of individual lease agreements between them and ZBC. However, it must be pointed out that the lease agreements were illegal as will be later seen in the discussion below. The lease agreements did not give the concerned private television

12 S-99-2000. 13 Daniel Compagnon, “The Media Battlefield”, A Predictable Tragedy: Robert Mugabe and The Collapse of Zimbabwe University of Pennislavia Press Philadelphia (2011) pg. 129. 14 Dumisani Moyo (Note 1 above) pg21. 140 University of Zimbabwe Law Journal 2018 broadcasters security of tenure because they violated s18 of the Broadcasting Services Act (BSA) which provided that: No licensee shall assign, cede, pledge, transfer, sell his licence to any other person or surrender his programming duties to another entity outside his establishment. Any such assignment, cession, pledge, transfer, sale or surrender shall be void. Therefore, the purported lease agreements were void ab initio because Joy TV, LDM Broadcasting and Munhumutapa Broadcasting were broadcasting on the basis of ZBC’s television broadcasting licence. The assignment by ZBC of its rights and obligations to broadcast to third parties was not permissible under s18 of the Broadcasting Services Act. As a consequence thereof, there was no way, for instance, Joy TV, which was the last to have its lease cancelled, could have sought to enforce its rights under the lease agreement because of the effects of the maxim exturpi causa non oritur action. This illegal arrangement also compromised issues pertaining to sustainability of their operations and the independence of their broadcasting services since they were operating at the pleasure of the State and the ZBC. It must be noted that as part of the terms of their operations under the lease agreement, these private broadcasters were not allowed to broadcast local news. Joy TV which had acquired broadcasting rights to air BBC News content15 was also barred from doing so. LDM and Munhumutapa African Broadcasting Corporation closed their operations as a result of viability issues16 whilst the Government directed ZBC to terminate their lease agreement with Joy TV.17 In the end, the Government’s concession to allow the operation of private television broadcasters on the basis of an illegal

15 Media Institute of Southern Africa, ‘Television Stops Broadcasting BBC Bulletins’ 10 May, 2002 https://www.ifex.org/zimbabwe/2002/05/ 10/television_station_stops_broadcasting/ Accessed on 29 December, 2016. 16 Dumisani Moyo (Note 13 above) pg. 21 17 Daniel Compagnon, “The Media Battlefield”, A Predictable Tragedy: Robert Mugabe and the Collapse of Zimbabwe. Philadelphia: University of Pennsylvania Press, 2011, pg. 130. UZLJ Public Service Broadcasting, Risk of State Capture141 lease agreement was both a reluctant compromise and a dishonest attempt by the government at reforming Zimbabwe’s broadcasting laws. Dishonesty, in the sense that they were not ready to revise the law and were therefore, comfortable with illegal contracts which they could terminate at any time, as they did. The other parties could not enforce their rights because the lease agreements were void ab initio. The restrictive condition pertaining to the ban on broadcasting of local news was again testimony to the fact that they were not sure of how an independent voice would report on local issues and how it would impact on the government’s political standing. The print media which had just been liberalised with the registration of private newspapers such as the Daily News and the Standard was already giving the Government headaches. The Government was not ready to liberalise the airwaves hence the half-hearted attempt at reform albeit illegal. The desire of the Government was to keep the operational position of these broadcasters weak and to act as an indirect “censorship board” by ensuring that they did not broadcast content that was anti-government as was happening in the print media sector.

3. PROBLEM STATEMENT The interest of the Government was to ensure that the information gate valve was secured in place for fear of publication of information which could destroy the credibility of the regime. One Government official was quoted as saying: Why should we have a repeat of Basildon Peta on TV? Why should we have a repeat of Geoff Nyarota on TV? We do not want that and it’s clear. They can cry tears of blood if they want. The evidence is clear. That means that anyone who is given a channel must be vetted thoroughly. We made a mistake because we reached a stage where a majority of newspapers in Zimbabwe were anti-Zimbabwean. Under no circumstances should we allow it in broadcasting…18 It must be noted that the duty of the media as the fourth estate is to keep the government action in check and to provide

18 Dumisani Moyo, (Note 1 above) pg. 22. 142 University of Zimbabwe Law Journal 2018 critical, independent and balanced reports on government actions. This duty is necessary in any democratic dispensation as it helps the public and the electorate in their search for truth and in judging the performance of the government in power. Most undemocratic governments fear independent public scrutiny of their actions hence they resort to stifling free speech and abuse public broadcasting services as their propaganda tools. The fear of public scrutiny and strong criticism by the media explains why the ZANU PF-led Government has been keen on keeping ZBC as the sole television broadcaster in Zimbabwe. Therefore, the reluctance to open up the airwaves was based more on political reasons rather than the radio frequency scarcity principle which gave justification for regulation of broadcasting services and the justifiable derogation of freedom of expression as held by the Supreme Court in Capital Radio (Pvt) Ltd. v Broadcasting Authority of Zimbabwe and Others.19 Anyone who was not pro-ZANU PF could not be trusted to be in charge of the television broadcasting bearing in mind the high level of visual impact that television broadcasting has on viewers. The Supreme Court acknowledged this potential impact of broadcasting when it noted in the Capital Radio (Pvt) Limited vs Broadcasting Authority of Zimbabwe and Others (Supra) that: Radio and television, because of their pervasive and wide reach and influence on members of the public, constitute a most important means of mass communication.20

4. POLITICS, CORPORATE GOVERNANCE AND THE CONTROL OF ZBC The statement made by one of the first Ministers of Information in Zimbabwe, the late Dr Nathan Shamuyarira attests to ZANU PF’s fears and the desire to control the ZBC for its own good when he said that the comrades who were running the Voice of Zimbabwe in Maputo had been deployed into key posts at ZBC so that they could direct the party’s policy.”21

19 S- 128-02 20 S-128-02 21 Dumisani Moyo (note 1 above) pg18. UZLJ Public Service Broadcasting, Risk of State Capture143

ZANU PF’s intention has always been to control the ZBC as can be seen by the deployment of its cadres at the public broadcaster in order to ensure that they continue to broadcast content which advances ZANU PF’s policies. Therefore, the basis for State capture of the ZBC was put in place immediately after ZANU PF took over the administration of Zimbabwe in 1980. As argued by Dumisani Moyo, broadcasting was expected to further extend the role it played during the liberation struggle22 in terms of mobilising the masses to support ZANU PF policies and programmes. The State capture of the ZBC was also made easy by virtue of the Government’s 100% shareholding in the public service broadcaster as provided for in s5 (1) and (2) of the Zimbabwe Broadcasting Corporation (Commercialisation) Act, 2001. Therefore, the influence and control of the State over ZBC come through its equity control since it is a private company wholly-owned by the State. Furthermore, in the absence of statutory regulations governing the appointment of Board members of ZBC, it means that the appointment of Board members is done by the Minister responsible for Information, Media and Broadcasting Services. Regrettably, this scenario makes it is easier for the responsible Minister to appoint political cronies to run the affairs of the public service broadcaster in order to ensure that the Government remains in charge of the information gate valve. It is common practice in Zimbabwe for ministers who are responsible for State-owned enterprises to appoint their political cronies and relatives to run State-owned enterprises as an extension of Government’s political hand to control the affairs of such entities. This is worsened by the fact that the tenure of board members who are appointed to the boards of State-owned enterprises is not guaranteed. Board members can be removed from office at any time by the minister notwithstanding the provisions of the Companies Act, Chapter 24:03 which provides for the removal of directors from a board of a private Company.

22 Ibid pg18. 144 University of Zimbabwe Law Journal 2018

The subsistence of weak corporate governance system at the instance of the Government is a fertile catalyst for State capture of the State-owned enterprises in general. Another weakness which promotes State capture is that there is a tendency by some Government ministers not to appoint boards of directors for long periods. Situations like this allow the Minister to exercise direct control of the affected State-owned enterprise. During a period like that the Management of the State Owned Enterprise will be reporting directly to the Minister on both policy and operational matters. This is a clear and present risk for the ZBC and in any case, it has happened on many occasions. The exertion of political control by ZANU PF over the public broadcaster is an issue which was raised under the Global Political Agreement (GPA) which resulted in the formation of a government of unity in Zimbabwe, involving ZANU PF, the Movement for Democratic Change-Tsvangirai (MDC-T) and the Movement for Democratic Change-Mutambara (MDC-M) as partners in 2009. The period preceding the GPA was characterised by media polarisation with ZBC restricting its media space to Zanu PF only. Hence, Article 19.1 (d) of the GPA tasked the Inclusive Government to; (d) …ensure that the public media provides balanced and fair coverage to all political parties for their legitimate political activities. During the period preceding the 2008 presidential and parliamentary elections, the MDC-T resorted to using foreign media outlets such as E.tv in South Africa to reach out to the Zimbabwean electorate with their party election broadcast advertisements because of restricted access ZBC. It was only fortuitous that MDC-T was able to advertise on E.tv in order to reach out to the electorate in the Southern Africa region. The influx of free-to-air decoders in Zimbabwe which could receive SABC and E.tv television signals made it possible for opposition political parties particularly MDC-T, which was a major threat to ZANU PF hegemony, to reach out to its supporters. The restriction of access to ZBC experienced by the MDC-T political party happened despite the provisions of Section 2A (d) (ii) of the Broadcasting Services Act which provides that; UZLJ Public Service Broadcasting, Risk of State Capture145

…the broadcasting services in Zimbabwe, taken as a whole provide public debate on political, socioeconomic issues of public interest and so as to foster and maintain a healthy plural democracy. Broadcasting pluralism fosters democracy because it allows different views on matters of public interest to be freely debated. Judge Learned Hand described democratic pluralism as “pre-supposing that right decisions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection…”23 Free expression by a multitude of different voices underpins truly democratic societies as opposed to despotic societies that restrain free public discourse on issues of public interest by imposing restrictions on access to means of expression such as public service broadcasting facilities. Justice Brandeis in Whitney vs California opined that: Public discussion is a political duty …it is hazardous to discourage thought, hope, manipulation, that fear breeds repression, that repression breeds hate, that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies…24 In the case of Benard Wekare v The State and the Attorney General and the Zimbabwe Broadcasting Corporation CCZ-9- 2016, Malaba DCJ (as he then was) eloquently explained the importance of democratic pluralism when he noted that pluralism and diversity promotes the full enjoyment of freedom of expression in that they ensure that citizens have access to a wide range of information and ideas on a variety of subjects.’ DCJ Malaba (as he then was) went further to give a detailed analysis of the characteristics of a public broadcaster as defined in PART I of the Seventh Schedule to the Broadcasting Services Act outlined in paragraphs (a) to (i) thereof. One key responsibility of a public service broadcaster is stipulated in paragraph (d) which is;

23 New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 [S.D.N.Y. 1943] 24 274 U.S. 357 (1927) 146 University of Zimbabwe Law Journal 2018

(d) to provide news and public affairs programming which meets the highest standard of journalism and which is fair and unbiased and independent from government, commercial or other interests. This provision is important in that it underpins freedom of expression and democratic pluralism. Nevertheless, the issue in Zimbabwe appears not to be the absence of the law but lack of political will to respect the rule of law. Furthermore, the poor corporate governance structure at the ZBC also militates against the independence of the public broadcaster. The appointment of the Board of directors of ZBC by the Minister of Information, Media and Broadcasting Services and the fact that the Board of directors serve at the pleasure of the Minister do not create enough safeguards for democratic pluralism. Again, the tenure of the Board of directors of ZBC is not guaranteed besides the lack of transparency in their appointment process. What is known is that the appointment process is unclear and that either relatives or friends or the minister’s political party cadres are the only classes of people entitled to board appointments of most of the State Owned Enterprises (SoEs) including the ZBC. It is customary for Zimbabweans to wake up to the news that a new board of directors has either been dismissed or appointed for a SoE. In addition to that, there is no process of holding the minister to account for his decisions on board appointments. This situation gives the appointing minister the power to hire or dismiss a board of directors as he pleases, especially where the board refuses to follow ministerial directives or resist undue influence from the minister. Consequently, the weaknesses in the appointment and dismissal processes of board members as noted above do not only compromise the independence of the board of directors of the ZBC but the institution’s editorial independence. Editorial independence is a critical aspect of democratic pluralism in broadcast media. Under Zimbabwean law, editorial independence is underpinned by the provisions of Section 2A (1) (f) of the Broadcasting Services Amendment Act, Number 19 of 2007, which outlines the key objectives of broadcasting regulation as; to ensure that the broadcasting services in Zimbabwe, taken as a whole, provide— UZLJ Public Service Broadcasting, Risk of State Capture147

(i) regular news services; and (ii) public debate on political, social and economic issues of public interest; and (iii) programmes on matters of local, national, regional and international interest or significance; so as to foster and maintain a healthy plural democracy; and (e) to promote public, commercial and community broadcasting services in the interest of the public; and (f) to ensure the independence, impartiality and viability of public broadcasting services; and… If a public broadcaster is unable to maintain editorial and programming independence as guaranteed by section 2A (1) (f) of the Broadcasting Services Act, it will lose credibility and it may possibly lose audiences to other broadcasters. In the case of the ZBC, it lost audiences to free-to-air (FTAs) decoders in respect of those viewers who could not afford the Multichoice DSTV subscriptions and to the latter for those audiences who could afford to pay the subscriptions.25 The free-to-air decoders would inter alia give them access to some South African television channels such as SABC 1, SABC 2, SABC 3 and e-tv which usually carried Zimbabwean news content. What is also important to note is that there is no transparent mechanism in place for holding a minister to account for his actions with regards to appointment and removal of a board of directors of a State Owned Enterprises. It is hoped that in future, aggrieved persons may demand for transparency and accountability through the provisions of s194 of the Constitution of Zimbabwe, which relate to the administration of Public Institutions. It would also be prudent for a law of general application to be enacted which will temper with ministerial powers in order to minimise the risk of them abusing their powers for either political or personal reasons. One hopes that the Public Service Corporate Governance bill, which is pending before the Parliament, will address such matters in

25 http://www.technomag.co.zw/2013/10/20/sabc-bounces-back-free- air-decoders/#sthash.borAP4hV.dpbs 148 University of Zimbabwe Law Journal 2018 order to make transparent the appointment of Board members to State Owned Enterprises as well as secure their tenure from arbitrary removals by Ministers. It must also be noted that the practice in most parastatals and SoEs is that all key senior positions are filled with the minister’s approval after security vetting by the Central Intelligence Office. As a consequence, there is no way a minister would send for vetting individuals who may not be politically correct and are unlikely to serve the interests of the Government. This process of board recruitment is an immediate threat to the independence of the public broadcaster both in terms of its operations and editorial work. A flawed appointment process will in most cases yield politically compromised individuals who may not guarantee editorial and operational independence of a public service broadcaster. It is highly unlikely that persons who are perceived to be enemies of the ruling political party will be appointed to the ZBC Board. Therefore, the tendency is to nominate and appoint people who are friends, political party cadres and senior government staff members to sit on the ZBC Board and some of them may not have knowledge or experience of any sort in any form media or arts. It is difficult to envisage how “the efficacy of the scheme for the provision of the public broadcasting services embodied in the Act which is dependent upon the existence of institutional editorial and financial independence of the ZBC”26 will be achieved. The institutional structure of the ZBC does not promote editorial independence because in practice the governance structures are not independent from the appointing authority. In any case, the Ministry of Information, Media and Broadcasting Services does not regard ZBC as independent. This view is affirmed by the words of the Permanent Secretary of that Ministry, Mr George Charamba in response to a deal which the ZBC TV had entered into with Kwese TV for the provision of 2016 Olympic Games content. He is quoted as having angrily said,

26 per DCJ Malaba, Wekare vs The State and the Attorney General and the Zimbabwe Broadcasting Corporation(1) and Musangano Lodge vs The State and the Zimbabwe Broadcasting Corporation CCZ 9-2016 UZLJ Public Service Broadcasting, Risk of State Capture149

There was an attempt to smuggle Kwese TV programmes onto our screens and we said get it out of our screens,” said Charamba. “I have differences with ZBC management’s view to introduce a competitor. We stopped it as the ministry. I don’t sit here to mould a competitor riding on our national broadcaster’s platform…27 This statement underscored the fact that ZBC has neither editorial nor operational independence. Therefore, it cannot fully discharge its mandate as a public service broadcaster as provided for in the BSA. It must be noted that for as long as there is no restructuring of the corporate governance system at ZBC, independence in public service broadcasting in Zimbabwe will remain a lofty ideal that will never be realised. The current corporate governance system is susceptible to political manipulation and interference. This affirms the assertion that the public service broadcaster is a victim of state capture for political expediency. In order to appreciate the weak governance structure of ZBC institution which makes it susceptible to yield to state influence and interference, it will be prudent to undertake a comparative jurisdictional analysis of various broadcast regimes.

5. COMPARATIVE ANALYSIS WITH OTHER BROADCASTING LEGAL AND REGULATORY REGIMES 5.1 Republic of South Africa The South African Broadcasting Corporation (SABC) is the public service broadcaster in the Republic of South Africa in accordance with the provisions of s9 (1)(a) and (b) of the Broadcasting Act No. 4 of 1999. The objectives of the SABC are inter alia to provide, in its public broadcasting services, radio and television programming that informs, educates and entertains;

27 Phillimon Mhlanga, ‘Government Cancels ZBC/Econet Deal’, The Financial Gazette, 1 September, 2016, http:// www.financialgazette.co.zw/government-cancels-zbceconet-deal/ Accessed on the 23rd of September, 2016. 150 University of Zimbabwe Law Journal 2018

More importantly, s6 (3) of the Broadcasting Act, No. 4 of 1999 provides that: …The Corporation in pursuit of its objectives and in the exercise of its powers enjoys freedom of expression and journalistic, creative and programming independence as enshrined in the Constitution. Freedom of expression is guaranteed under both the Broadcasting Act of 1999 and the Constitution of the Republic of South Africa. As noted elsewhere herein, freedom of expression is the ‘lifeblood of any democratic State’28 and it is critical for the effective discharge of public service broadcasting as noted in the judgment by DCJ Malaba in the Bernard Wekare (supra)29 .

Governance Structure of the SABC Section 12 of the Broadcasting Act of 1999 provides for the constitution of the SABC board whilst s13 thereof provides for the appointment of the SABC board members. With respect to the ZBC, the nomination and appointment process is not provided in the BSA and therefore, members of the public do not know how Zimbabwe’s public broadcaster’s board members are nominated and appointed. What is known is that board members are selected and appointed by the minister in charge of broadcasting services. By way of contrast to the Zimbabwean scenario, the board members of the SABC are appointed by the President of the Republic of South Africa on the advice of the National Assembly in terms of s13 (1) of the Broadcasting Act of 1999. Furthermore, under South African law, the process of nominating suitable candidates for membership to the board of directors of SABC is open in that members of the public are allowed to participate in the nomination process. Furthermore, shortlisted candidates are publicly interviewed to establish whether they are fit and proper persons to sit on the board of directors of SABC.

28 Regina v. Secretary of State for the Home Department Ex Parte Simms (A.P.) Secretary of State for the Home Department Ex Parte O’Brien (Consolidated Appeals) on 8 July 1999. 29 CCZ-9-2016 UZLJ Public Service Broadcasting, Risk of State Capture151

Individuals who qualify to sit on the Board of Directors of SABC must, in terms of s13 (4)(b) of the Broadcasting Act of 1999, “…be persons who are committed to fairness, freedom of expression, right of the public to be informed and openness and accountability of those who are holding public office.” Regrettably, members who sit on the Board of Directors of ZBC do not have to pass any fitness for office tests except the prohibitions outlined in s173 of the Companies Act [Chapter 24:03] of Zimbabwe. Therefore, members of the public do not know the criteria that is used to nominate and appoint members of the ZBC Board. The common speculation is that the appointees are either relatives, friends or political colleagues of the appointing Minister. The nomination and appointing criteria is so vague that one wonders whether the appointees fully appreciate the gravity of their responsibilities as guardians of democratic pluralism of public service broadcast media in Zimbabwe. On the other hand, members of the SABC Board are charged with the responsibility of ensuring the implementation of s6 (2) of the Broadcasting Act of 1999, which relates to the Broadcasting Charter of SABC and they are therefore, accountable for its implementation or failure thereof. The tenure of the SABC Board Members is guaranteed from arbitrary removal from office. On the other hand members of the ZBC Board of Directors serve at the pleasure of the minister. This makes it easy for ZBC Board members to be removed from office at any time if the minister is unhappy with them thereby weakening institutional and operational independence of ZBC. The weak corporate governance structure and unsecure board tenures combine to create a conducive environment for State capture of the public broadcaster. On the other hand, members of the SABC Board are charged with the responsibility of ensuring the implementation of s 6(2) of the Broadcasting Act of 1999 which relates to the implementation of the Broadcasting Charter of the SABC. Therefore, the SABC Board is also held to account for the effective implementation or otherwise of the Broadcasting Charter. The tenure of office of the members of the SABC Board is also guaranteed from arbitrary removal from office. The removal 152 University of Zimbabwe Law Journal 2018 of an SABC Board member is done in terms of s 15A (1) (a) of the Broadcasting Act of 1999 which provides that: The National Assembly may, after due inquiry and adoption of a resolution recommend the removal of a member from office on account of any or all the following: i. Misconduct ii. Inability to perform duties of his or her office efficiently iii. Absence from three consecutive meetings of the Board without permission of the Board except on good cause shown. iv. Failure to disclose an interest in terms of s17 or voting or attendance at or participation in, proceedings of the Board while having an interest in s17 v. His or her becoming disqualified as contemplated by section 16. Individually, members of the SABC board have legislative protection from arbitrary removals from office and as a collective in terms of s15A (2) which provides a mechanism of an inquiry to be held and the passing of a National Assembly resolution before the board can be dissolved. Such legislative safeguards encourage the independent discharge of duties and responsibilities of the SABC board. The governance arrangement under the Broadcasting Act of 1999 reduces the risk of State capture of the SABC but if that happens, the National Assembly is able to exercise an oversight role over the activities of the SABC and its Board. In a conducive environment such as the one created by the provisions of s15A (1) and (2), the curtailment of the influence of executive powers over the governance of State bodies that are meant to provide public services and more importantly, to implement and uphold fundamental constitutional rights like freedom of expression, such as is required of the SABC, will to a greater extent, provide safe cover for the independent discharge of their duties. UZLJ Public Service Broadcasting, Risk of State Capture153

5.2 Australia The public service broadcaster in Australia is the Australian Broadcasting Corporation (ABC), which is a statutory body created in terms of the Australian Broadcasting Services Act of 1983. The ABC is headed by a Governor General who is appointed by the Government. The ABC is run by a Board of Directors whose duties are set out in s8 of the ABC Act of 1983. The main duty of the Board is to ensure that the functions of the Corporation are performed efficiently with maximum benefit to the people of Australia and to maintain the independence and integrity of the Corporation. The Australian legislation also creates what is known as a ‘merit-based appointment process of non-executive directors of the ABC Board. The selection criteria are determined by the responsible Minister under s24 W (1) of the ABC Act, 1983 which provides that: (1) The Minister must, by legislative instrument, determine selection criteria for the appointment of a Director referred to in paragraphs 12(1) (b) or (c). The current merit based process is as follows: It is conducted by the Nomination Panel which is established under PART III A of the ABC Act. The nomination panel is established in terms of s 24A of the ABC Act and its key functions are set out in s 24B and they are inter alia: (a) To conduct the selection process for each director referred to in paragraph 12(1) (b) or (c) (b) To assess all applicants for the appointment against the selection criteria determined under s24W (1) and any additional selection criteria notified under subsection 24W (2) of the ABC Act. (c) To assess all the applicants for appointment on the basis of merit (d) To give a written report : (i) If the appointment is of the Chairperson, to the Prime Minister and the Minister; or (ii) If the appointment is not of the Chairperson to the Minister. 154 University of Zimbabwe Law Journal 2018

on the outcome of the selection process that contains a list of at least 3 candidates who are nominated for the appointment and a comparative assessment of those candidates.” What is important to note about the Australian process of selecting and appointing suitable candidates is that it is guided by a set criteria unlike the Zimbabwean process which gives the Minister responsible for Information, Media and Broadcasting Services unfettered powers to select and appoint members of the Board of Directors of ZBC. It must be noted that s194 (2) of the Constitution of Zimbabwe, emphasises that appointments to offices in all tiers of Government, including Government institutions and agencies and Government-controlled entities and other public enterprises must be made primarily on the basis of merit. Government has not been following the provisions of s194 (2) in the appointment of Board members for its SoEs. Whilst this is a noble constitutional provision, it may not be easy to implement in the absence of a comprehensive legislation that outlines the process of selection, appointment and removal of public officers. The process provided in the Constitution of Zimbabwe with respect to the selection, appointment and removal of judges and Commissioners of Independent Commissions established under Chapter 12 of the Constitution of Zimbabwe could be useful in the circumstances because it is generally transparent and accountable. Judges and Chapter 12 Commissioners’ vacancies are advertised and the shortlisted candidates are publicly interviewed. This same process could be applied in the selection and appointment of members of board of directors of ZBC and other State Owned Enterprises. Nevertheless, it is important to note that the Australian system is not full proof. There are also allegations of political manipulation of the public broadcaster but the rate of occurrence of such incidences is low. What also makes the Australian system better is that vacancies on the Board of ABC are publicly advertised in terms of s24B (3) of the ABC Act and a nomination committee is then tasked with the responsibility of selecting and making recommendations for the respective appointments. There is no such room for UZLJ Public Service Broadcasting, Risk of State Capture155 transparency in the Zimbabwean system which makes the whole system prone to political manipulation which encourages State capture of the public broadcaster through political appointees. In terms of s24C of the ABC Act, the Nomination Panel is not subject to direction by or on behalf of the Government of the Commonwealth. This legal arrangement strengthens the independence of the Nomination Panel in the selection process and they can appoint members who are fairly detached from the political relationships. On the contrary, the minister, who is the appointing authority of the members of the ZBC board, is a member of the Executive branch of the State and a political appointee who serves at the pleasure of the President of the Republic of Zimbabwe. The chances are that he will appoint members who are likely to serve the interest of the government at the expense of public interest because his survival as a Minister depends on how he or she performs on the political mandate given to him by the President. The grounds for termination of membership in the Nomination Panel are also legislated which means that outside the grounds provided in the ABC Act, the Secretary to the Prime Minister of Australia may not remove any member from the 3Nomination Committee. In his explanatory note to the selection criteria, the Minister explained that it is intended to reflect the duties, skills and desirable attributes of non-executive directors and further that it must substantially reflect experience or knowledge in some key professional disciplines. Furthermore, the candidates are also assessed on their leadership qualities, judgment and understanding of the Media environment’30 This is a comprehensive criteria which facilitates the selection of highly competent people who are independent and are likely to resist political pressures. At least when the vacancies are advertised there will be no doubt as to what kind of people the public service broadcaster will be looking for to run its affairs. It is important for the selection process of public

30 National Broadcasting Legislation Amendment Act 2012, No. 112, 2012 156 University of Zimbabwe Law Journal 2018 officers to be known, transparent, independent and accountable. The selection process of ZBC board members lacks these fundamental corporate governance values. There are no advertisements to indicate the availability of vacancies on the ZBC Board neither is the public informed of the selection process. The public only gets to know of any new appointments to the ZBC Board through radio broadcasts or print media reports. Such an opaque process encourages unhealthy patronage by appointees towards the appointing administration. The appointees may feel that they owe their appointments and tenure to the good will of the Minister or the Government in power. Therefore, it is almost impossible to hold a Minister to account for his selection and appointments because of the carte blanche that a Minister has under the current legal regime in Zimbabwe. Presumably, this state of affairs suits the incumbent administration because the general allegation against the ruling party that they have been abusing resources of State Owned Enterprises for political expediency. In undemocratic regimes orderliness, transparency and accountability do not auger well for political manipulation. Consequently, it will be difficult to achieve a totally independent public service broadcasting in Zimbabwe that promotes democratic pluralism unless there are legal reforms and change of political attitudes. The National Broadcasting Amendment Act which amended the ABC Act of 1983, provides further safeguards through the disqualification of certain categories of persons from holding directorship positions on the Board of Directors of the ABC. Section 12(5A) of the National Broadcasting Amendment Act disqualifies: (a) A member or former members of the Parliament of the Commonwealth; (b) A member or former member of the Parliament of the State, of the Legislative Assembly of the Northern territory; (c) A person who is or was a senior political staff member, albeit for a period of 12 months from the date they ceased to hold such office. The importance of this cooling off provision is that it puts a restriction on the appointment of persons UZLJ Public Service Broadcasting, Risk of State Capture157 who are politicians as non-executive directors of the ABC even though the period is short. This arrangement also aids in enhancing the independence of the ABC in its broadcast programmes and reduces the risk of State capture of the public broadcaster. Notwithstanding the foregoing, it is important to note that the Australian system is not perfect. There were allegations pertaining to the politicisation of the ABC in the 1990s as noted by Dr Rhonda Jolly that: The issue of the politicisation of the ABC Board has been contentious for some time. ABC Historian Ken Inghs notes that the government of Whitlam and Fraser ‘had both replaced every commissioner appointed by the preceding regime, each giving the governing body a preponderance of people sympathetic to its own.’ Kathrine Murphy also made a similar accusation against the former Australian Prime Minister, Mr John Howard in her piece published in The Age. She noted that John Howard has transformed the leadership of the National Broadcaster in the past decade. There is no one who is serving on the ABC Board who has not been hand-picked by his Cabinet. Mr Howard’s first step in changing the culture was to appoint his friend Donald McDonald as Chairman in July 199631 . These are some of the allegations which led to the promulgation of the National Broadcasting Amendment Act of 2013. The National Broadcasting Amendment Act of 2013 introduced the requirement for appointments based on merit and experience. The process is to a good extent transparent and accountable and it also reduces the risk of appointment of political cronies.

Funding of ABC In terms of the ABC Act, the Australian Public Broadcaster is funded through triennial funding arrangements and this includes Government funding that is legislated through the

31 Kathryn Murphy, “Gaining influence. It’s as easy as ABC” 16 June, 2006, https://www.theage.com.au/news/national/its-as-easy-as- abc/2006/06/15/1149964674521.html Accessed 2 May, 2018 158 University of Zimbabwe Law Journal 2018

Annual Appropriation Bill Nos. 1 and 2 and the other main sources of funding are from independent sources that is principally from commercial activities involving sale of goods and services.32 Under the Zimbabwean regime and in terms of s38 (B) (1) and (2) as read with s38E (1) (h) (i) of the Broadcasting Services Act, public broadcasting services are financed by listeners’ licence fees that are levied on every person who possesses a receiver or a listener’s device. DCJ Malaba in Bernard Wekare (Supra) further explained that: The money is required to be paid into the general fund of the ZBC before it can be used by the Corporation as revenue to meet the costs of performance of its functions in providing public service broadcasting services in accordance with the provisions of the Act. The primary purpose of the provisions is to establish a mechanism for the funding of the provision by ZBC of public broadcasting services without interference from Government or powerful interests. Whilst Deputy Chief Justice Malaba’s (as he then was) finding regarding the purpose of the fund is theoretically correct, it may not be so in practice. The executive branch of government is involved in appointing Board members of the Public Broadcaster as well as its senior executive and editorial officers. This is a form of government interference as argued elsewhere herein above. The discretion to appoint Board members lies entirely in the hands of the minister responsible for Broadcasting for Information, Media and Broadcasting Services. Furthermore, the interference by the Permanent Secretary of the same Ministry regarding the aborted partnership between ZBC and Kwese.Com TV is indicative of the high level of operational interference over the affairs of ZBC by Government in violation of the BSA and s61(4)(a) of the Constitution of Zimbabwe. Therefore, DCJ Malaba’s (as he then was) view fails to recognise one or more views which indicate that:

32 Dr Rhonda Jolly, “The ABC, An Overview”, RESEARCH PAPER SERIES, 2014–15 11 AUGUST 2014, pg38 UZLJ Public Service Broadcasting, Risk of State Capture159

(a) there is no mechanism in place for holding ZBC to account in how they utilise the tax collected (listeners and viewers’ licence fees) in relation to the provision of public service broadcasting. In one case Deaf Zimbabwe Trust’s Executive Director had to engage the former Minister of Information, Media and Broadcasting Service, Prof Jonathan Moyo to direct ZBC’s Acting Group Chief Executive Officer Mr Allan Chiweshe to provide Sign Language Interpreters during the 8 pm main news bulletin.33 Their excuse was that they only had one camera even though they collect listeners’ licence fees which could have been used to buy more TV cameras. There is also a pending legal suit by a group of Deaf youths who are arguing that ZBC has a legal obligation to make television accessible to Deaf people through the provision of captions to their programmes, which in other jurisdictions is a basic service under public service broadcasting. (b) Whilst the ZBC is expected to operate independently, that is not completely possible because of its ownership structure, an issue which has been extensively discussed herein. DCJ Malaba also makes a similar acknowledgment in the Bernard Wekare (Supra) wherein he argued that: “…Being wholly-owned by the State, the ZBC as a public broadcaster could be compromised by the pressures of operating with an inherent conflict in the discharge of the dual responsibility of reporting information and bringing critical judgment to bear on public affairs.”34 This observation attacks the perception of the independence of the ZBC in the discharge of its public service obligations and it shows that the current legal arrangement promotes, rather than discourage State capture of the public service broadcaster by the State.

33 Interview with Deaf Zimbabwe Trust’s Executive Director, Ms Barbra Nyangairi, 17 September 2016 34 Rhonda Jolly (Note 28 above) pg34 160 University of Zimbabwe Law Journal 2018

UNESCO provides a different definition of public service broadcasting which completely eliminates the aspect of State control in the ownership of the public broadcaster. UNESCO defines public service broadcasting as “…broadcasting made, financed and controlled by the public. It is neither commercial nor State-owned, free from political interference and pressure of commercial interests.”35 The current ownership structure of ZBC as well as its operational arrangement as described before, disqualify it from being a public service broadcaster under the UNESCO definition. The key points in the UNESCO definition which DCJ Malaba also alluded to in his judgment are: (i) Public service broadcasting must be financed by the public (ii) Not either commercially or State-owned (iii)Free from political interference and pressure of commercial interests. ZBC fails the test in two aspects. Evidence on the ground suggests that it is both State-owned and controlled and further that it is weighed down heavily by political influence, hence the state capture. Lyndon Tuyani Nkomo observed in respect of point (iii) above that: A public broadcaster which gives in to the massages of some political fingers can easily mutate into a propaganda tool, which is an affront to the key purposes of broadcast regulation pertaining to ensuring ‘the independence, impartiality and viability of public broadcasting services.36 ZBC finds itself in this predicament of State control and State ownership which make the exertion of political influence over it very much easy. For instance, in the past few years, the ZBC has been giving unlimited broadcast airtime to ZANU PF praise songs by some individuals and groups and the most prominent ones were the late Elliot Manyika and Mbare

35 Elizabeth Smith, A Road Map to Public Service Broadcasting”, The Asia-Pacific Broadcasting Union, 2012 pg7 36 Lyndon Tuyani Nkomo, ‘Political Speech and Public Broadcast Media by Political Parties in Zimbabwe’, Zimbabwe, Mired in Transition, E.V. Masunungure and J. M. Shumba (ed), pg37. UZLJ Public Service Broadcasting, Risk of State Capture161

Chimurenga.37 These circumstances make it difficult for the provisions of s2A (f) as read with PART 1 (d) of the Seventh Schedule to the Broadcasting Services Act to be realised. Therefore, whilst legislative good intentions are expressed through the law, they remain theoretical for as long as there is no will power to enforce the law on the part of the ruling administration. This has been the case with Zimbabwe’s Government and its relationship with ZBC which has effectively been captured by the former.

5.3 United Kingdom The public service broadcaster in the United Kingdom is the British Broadcasting Corporation (“The BBC”) which operates on the basis of a Royal Charter (“RC”) granted to the BBC Trust by the British Queen. In terms of Article 1 (2) of the RC, the members of the BBC Trust and the Executive Board constitute the members of the Corporation whilst in terms of S5 (1) and (2) of the ZBC Commercialisation Act shareholders are appointed by the Minister after consulting the President and the nominees hold the shares on behalf of the Government. The main purpose of the BBC is to serve “public interest” as provided in Article 3 (1) of the Royal Charter and its main objective is “the promotion of its public purpose” as stipulated in Article 3 (2) of the Royal Charter. In terms of Article 5 (1) of the Royal Charter, the BBC‘s main activities should promote its main purpose and must have outputs consisting of information education, supplied by means of – (a) Television, radio and online services (b) Similar or related services which make output generally available and which may be in many forms or by means of technologies which either have not previously been used by the BBC or which have not yet been developed.38

37 Rhonda Jolly (Note 28 above) pg51 38 Broadcasting, Copy of the Royal Charter for the Continuation of the British Broadcasting Corporation 2006 162 University of Zimbabwe Law Journal 2018

Independence The independence of the BBC is guaranteed by Article 6 (1) of the Royal Charter which provides that “The BBC shall be independent in all matters concerning the content of its output, the times and manner in which this is supplied and in the management of its affairs.”

Governance Structure The BBC is governed by the BBC Trust and the Executive Board. Article 8 of the Royal Charter directs that these two organs are to act separately whilst Article 9 emphasises that the BBC Trust shall maintain its independence from the Executive Board and that it must not exercise or seek to exercise the functions of the Executive Board. The members of the BBC Trust are appointed by the Queen on advice from the Department for Culture, Media and Sport Minister in the office of the Prime Minister. This arrangement does not eliminate the risk of political appointees to the BBC Trust in light of the strategic position of the BBC. However, the procedure is that when vacancies for Trustees arise, the positions are advertised and the trustees are chosen on merit and the process is regulated by the office of the Commissioner of Public Appointments. Those who apply to be trustees are shortlisted and interviewed and the interview panel comprises a senior civil servant from the DCMS as Chairperson and some independent assessors including the Chairperson of the BBC Trust. The recommendations of the selection committee are then submitted to the Secretary of State for Culture, Media and Sport and then to the Prime Minister and the Queen. It appears from the preceding submissions that the selection process is to a significant degree transparent and accountable unlike the Zimbabwean process which is opaque. Under the Zimbabwean regime, the power as well as the discretion to identify, nominate, select and appoint members of the ZBC Board lies in the hands of the Minister of Information, Media and Broadcasting Services. The Media Monitoring Project of Zimbabwe correctly observed that “…the appointments of public broadcasting officials are political” and that “If these UZLJ Public Service Broadcasting, Risk of State Capture163 appointments continue to be made according to ideological affinities or as rewards to political friends …they would undermine the very credibility of public broadcasting.”39 It appears that the Government of Zimbabwe is pursuing a deliberate agenda that excludes transparency and accountability in order to protect its political interests by ensuring that it has absolute control over the operations and affairs of the public broadcaster. The recent furore over a mooted ZBC TV and Kwese.com strategic partnership caused by the Permanent Secretary in the Ministry of Information, Media and Broadcasting Services, who is also the Presidential Spokesman affirms the Zimbabwe Government’s objective to exercise absolute control over ZBC even at the expense of business growth40 . The Permanent Secretary’s statement violated the Broadcasting Services Act and it also ignored the operational independence of ZBC, as will more fully appear in the points outlined below: First, section 61(4) (a) of the Constitution of Zimbabwe guarantees ZBC’s freedom to choose and determine its programming content whilst s61 (3) (b) makes any purported control or interference by the Government in the establishment of broadcasting unconstitutional. ZBC is constitutionally obligated to act as an independent public service broadcaster but the ZANU PF led Government has been misusing it as its propaganda tool. Section 2A (1) (f) of the Broadcasting Services Amendment Act of 2007 also provides as one of the key purposes and objectives of the Act as, “to ensure the independence, impartiality and viability of public broadcasting services.” The independence of the public broadcaster is critical to the impartial and competent discharge of its statutory mandate. However, undemocratic authorities will in many cases seek to manipulate public broadcasting institutions and abuse them

39 Reclaiming the People’s Voice: Broadcasting Reforms in Zimbabwe, pg8 40 The Financial Gazette, “Government Cancels ZBC/Econet Deal”, 1 September 2016, http://www.financialgazette.co.zw/government- cancels-zbceconet-deal/ Accessed on 15 February 2017. 164 University of Zimbabwe Law Journal 2018 as their propaganda tools. Regrettably, ZBC has been a victim despite the provisions of s2A (2) of the Broadcasting Services Amendment Act of 2007 which emphasizes that: The Authority, the Minister and all other persons required or permitted to exercise functions under this Act shall pay regard to the objectives set out in subsection (1) when exercising those functions. Second, the proper option which the government should have taken was for it to seek an interdict from a competent court if they were of the view that the public service broadcaster was violating its mandate instead of issuing operational directives to the ZBC. The directive affirmed ZBC’s capture by the Government. Third, the fact that both ZBC‘s Board and Management complied with Mr Charamba’s unconstitutional directive shows that they have no spine to stand up on matters of principle and that they are victims of State capture. It also shows that whilst the Constitution of Zimbabwe guarantees ZBC’s editorial independence under the provisions of s61 (4) (a) of the Constitution of Zimbabwe, there is a possibility that members of both the ZBC board of directors and its management are politically compromised. The government’s reaction as noted above further shows that for as long as a public broadcaster is State-funded and the administration is appointed by the same authorities, it will be impossible for it to operate independently of the Government or the ruling administration. The notion of editorial independence in the operation of public service broadcasting in Zimbabwe will be a legal fiction.

6. CONCLUSION In light of the foregoing submissions, I conclude that ZBC is a state captured institution because of the poor corporate governance structure and loose legal instruments which encourage unrestrained interference into its operations by the executive branch of the State. Both the Board and Management of ZBC are weak in that they owe their tenure in office to the pleasure of the government and not the legal instrument that established ZBC as a public broadcaster. UZLJ Public Service Broadcasting, Risk of State Capture165

Therefore, ZBC’s executive structure which includes the Board, Management and the editorial team deny themselves the independence which is given to them by both the Constitution of Zimbabwe and the BSA because of their political allegiance and their predisposition to accept the overly influential executive power over the operations of ZBC. Hence, there is an urgent need to reform the corporate governance structure of ZBC in line with the values outlined in s3 of the Constitution of Zimbabwe such as the rule of law, independence, transparency and good governance in the discharge of its public service broadcast mandate. State Institutions which must operate independently from government must be allowed to do so without the fear of political reprisals against their officials. Furthermore, there is need to improve the nomination and selection process of the Board members by clearly setting out the selection process and the criteria to be used in the appointment process. The vacancies on the Board of Directors of ZBC must be publicly advertised. Potential candidates must be nominated by ordinary citizens and civic organisations. Those who would qualify for nomination must not be members of any political party. Consideration must be made to use the Parliamentary Committee on Media, Broadcasting and Information to shortlist and interview potential candidates. The same parliamentary committee must be given the power to remove individuals or the whole board of directors after public enquiries into alleged violations of the public service broadcasting mandate or such other punishable misdemeanours. The ZBC Board must be allowed to recruit its own executive and editorial staff without interference from the Minister of Media, Broadcasting and Information. ZBC must not receive any form of funding from national treasury but should continue to fund its public service programming from listeners’ and viewer’s licences. ZBC must also run commercial broadcasting services for them to cover the funding gap that may be created by inadequate listeners and viewers’ licence fees. Furthermore, ZBC should find other ways of fundraising for grants and donations to support their public service programming. 166 University of Zimbabwe Law Journal 2018

The main objective of these proposed reforms is to put ZBC in a position which significantly mitigates the risk of state capture by either reducing or completely eliminate Government influence and control over the former. EXPLORING THE CONCEPTS OF MINORITY AND MINORITY LANGUAGE IN INTERNATIONAL HUMAN RIGHTS LAW

BY INNOCENT MAJA1

1. INTRODUCTION International human rights law does not currently define a minority. For instance, the International Covenant on Civil and Political Rights protects minority rights in article 27 without defining the term minority. The Human Rights Committee did not define the term in the Diergaardt case.2 Nor did the African Commission define the term ‘minority’ in Malawi African Association and Others v Mauritania.3 The term minority was not even defined by the Kenyan High Court in IL Chamus v The Attorney General and Others.4 Yet various human rights instruments protect minorities. Beyond definition, a number of groups have alleged that they are minorities and deserve protection under international human rights law. This article seeks to explore the concepts of minority and minority language in international law and unpack who can be protected under the banner ‘minority.’

2. THE CONCEPT OF MINORITY At the international level, Francesco Capotorti – Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities – couched a widely used definition of a minority based on article

1 LLBs (Hons), LLM and LLD. Dean, Faculty of Law, University of Zimbabwe. 2 Communication 760/1997, J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia, UNHR Committee (6 September 2000) U.N. Doc. CCPR/C/69/D/760/1997 (2000). 3 Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000). 4 MISC Civil Application N0. 305/ 2004.

167 168 University of Zimbabwe Law Journal 2018

27 of the International Covenant on Civil and Political Rights (CCPR) when he defines a minority as: 5 [a] group numerically inferior to the rest of the population of a state, and in a non-dominant position whose members – being nationals of the state – poses ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religions and language. According to Capotorti,6 a minority can be identified by five distinct characteristics. Four of the five characteristics fall under the following objective criteria namely; a) Numerical inferiority of the group; b) The ‘non-dominant position’ that it has in the society; c) The ‘ethnic, religious and linguistic characteristics’ distinguishing the group from those of the ‘rest of the population’ of the state; and d) Members of the minority group must be nationals of the State where they seek to assert protection. The one remaining subjective criterion relates to solidarity or the collective will to preserve their ‘culture, traditions, religion or language’. Alfredsson describes the objective and subjective criteria as ‘two poles’ of minority identity.7

5 F Capotorti ‘Study on the rights of persons belonging to ethnic, religious, and linguistic minorities’ (1979) UN Docs. E/CN.4/Sub.2/ 384/Rev.1, Sales No E78XIV1 5 96. In the same light Jules Desch_nes modified this definition to read that a minority is ‘A group of citizens of a State, constituting a numerical minority and in a non dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law.’ E/CN4/Sub2/ 1985/31, 14 May 1985 at 30. 6 Capotorti (n 5 above) 96. 7 G Alfredsson ‘Emerging or newly restored democracies – strengthening of democratic institutions and development’ paper presented at Workshop 1: Human rights, fundamental freedoms and the rights of minorities, essential compnents of democracy, Conference on parliamentary democracy, Council of Europe (1991) 10. UZLJ Public Service Broadcasting, Risk of State Capture169

The inevitable question that arises is ‘to what extent do these five characteristics define or describe minorities?’ An analysis of each of the five characteristics will help in answering this question.

2.1 Objective criteria a. Possession of distinct ethnic, religious and linguistic characteristics Capotorti observes that a ‘minority’ should be a distinct group within a state possessing stable ethnic, religious and linguistic characteristics that differ sharply from those of the rest of the population. Nowak holds that groups within a population may be considered minorities only when they differ from the rest of the population of the state in which they exist by reference to ethnicity, religion or language.8 This characteristic is hardly criticized as key in defining and describing a ‘minority.’ This paper proceeds on the assumption that this characteristic is key in defining a ‘minority language’ as well. b. Numerical inferiority Capotorti argues that minorities must be numerical inferior to the rest of the population.9 Capotorti further avers that in countries where ethnic, religious and linguistic groups of roughly equal numerical size coexist, article 27 of the CCPR applies to them all. He further argues that a minority must constitute a sufficient number for the state to recognize it as a distinct part of the society and to justify the state making the effort to protect and promote it. According to Caportorti, states should not grant special status to groups that are numerically small that it would be a disproportionate burden upon the resources of the state to

8 M Nowak UN Covenant on Civil and Political Rights: CCPR commentary (1993) 491. 9 l Andrysek states that ‘[a]lready looking at the term minority we feel an arithmetical connotation: a minority is a smaller part of a whole’. ‘Report on the definition of minorities’ SIM Special No. 8 (1989). 170 University of Zimbabwe Law Journal 2018 grant them special status.10 States should not be required to adopt special measures of protection beyond a reasonable proportionality between the effort involved and the benefit to be derived from it.11 This approach is in line with the view of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities in 1953 that provided that ‘minorities must include a sufficient number of persons to preserve by themselves their traditional characteristics.’12 However, sufficiency of the group is certainly a question of fact depending on the nature of the characteristics and the social environment of the group.13 The main question that has been posed is whether or not a comparison to ‘the rest of the population’ relates to the population of the state in general or the population of other individual language groups individually. In attempting to answer this key question, the first school of thought argues that the rest of the population refers to the population of other language groups individually. The main challenge with this approach lies with the group distribution in each country. One group may be a majority in one region and a minority (compared to other groupings) in another region. For instance, the Shona group is a majority in the Mashonaland region and the whole of Zimbabwe. They constitute more than 50 per cent of the total population of Zimbabwe. However, the Shona group is a minority in the Matabeleland region. This scenario creates an absurd situation where a majority group within a state can also be a minority within the same state if members of this group are few in another region or province of the same state.

10 The test used is one of reasonable proportionality. See F Capotorti (n 5 above) 96. 11 See also G Gilbert “The Legal Protection Accorded to Minority Groups in Europe” (1992) 23 Netherlands Year Book of International Law 72- 73. 12 MN Shaw, “The definition of minorities in international law” in Y Dinstein & M Tabory (eds) The protection of minorities and human rights (1992) 25. 13 PV Ramaga ‘The group concept in minority protection” (1993) 15 Human Rights Quarterly 577. UZLJ Public Service Broadcasting, Risk of State Capture171

The question of whether members of the majority community in a state can be considered minority if they are numerically inferior in a province or region arose in Ballantyne, Davidson and McIntyre v Canada.14 The UN Human Rights Committee (UNHRC), by a majority opinion, decided that members of such a community cannot be considered as a minority for the purpose of Article 27 of the CCPR. The UNHRC buttressed the notion that ‘the minorities referred to in Article 27 are minorities within such a state (party to the CCPR), and not minorities within any province’.15 The second school of thought argues that ‘the rest of the population’ refers to the population of the state in general. For instance, Jelena Pejic argues that numerical inferiority should be established by comparison to the entire population of a state.16 Some scholars argue that if a group constitutes less than 50 per cent of the population of the state in general, that group qualifies as a minority.17 They further argue that in a situation where there is no clear majority, the expression ‘the rest of the population’ is interpreted to refer to the aggregate of all groups of the population of the state concerned.18 A number of problems arise from this approach. First, the comparison is between a culturally homogenous group and an amorphous one (the aggregate of all the rest). Second, this

14 Communication Nos 359/1989 & 385/1989, Ballantyne, Davidson and Mc Intyre v Canada, UNHR Committee (31 March 1993), UN Doc CCPR/ C/47/D/359/1989 and 385/1989/Rev 1 (1993). 15 Ballantyne case (n 14 above) para 11(2). 16 J Pejic ‘Minority rights in international law’ (1997) 19(3) Human Rights Quarterly 666-685. 17 For example A Eide in Working definition on minorities, Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities, E/CN4/Sub2/1993/34, 10 August 1993, SCPDPM (45th Session), para 29 says ‘‘A minority is any group of persons resident within a sovereign State which constitutes less than half of the population of the national society and whose members share common characteristics of an ethnic, religious or linguistic nature that distinguish them from the rest of the population.’ 18 Shaw “The definition of minorities in international law’ in Dinstein & Tabory (n 12 above) 25. 172 University of Zimbabwe Law Journal 2018 approach defines minority status mainly in terms of inter- group relations rather than in terms of power relations. Third, it does not necessarily follow that the size of a group determines its dominant or subordinated position in a society. For instance, pre-colonial Africa saw numerically inferior groups wielding political, economic and social power. This was the case in South Africa during the apartheid era and Zimbabwe during the colonial era. In terms of language, a numerically inferior group of language speakers can be in a position of domination and their language can indeed be the dominant language. This was the case in apartheid South Africa where the Afrikaans and English were the dominant languages in the public sector and English was dominant in the economic sector. Again, pre-colonial Zimbabwe saw numerically inferior English speakers dominant politically, socially and economically. Fourth, Capotorti’s argument that ‘the rest of the population’ refers to the population of the state in general does not take into considerations situations where there is a federal government and power is constitutionally vested in a provincial or regional government. In such states, minority issues arise at provincial and regional levels. De Varennes asserts the following:19 It could be validly maintained that the drafters of Article 27 simply overlooked that in a federal state, even a national majority may find itself subjected to serious mistreatment if it is a numerical minority in one of the federal units and outside the reach of federal (national) protection. For example, in the Indian case of D.A.V. College, Jullunder v Punjab, A.I.R, the Indian Supreme Court held that minority status can be determined not only nationally but also within the units of the federation, depending on the matter in question.20 Also, Recommendation 1201 of the Parliamentary

19 F de Varennes, Language, minorities and human rights (1996) 143. See PV Ramaga ‘The group concept in minority protection” (1993) 15 Human Rights Quarterly 105-110 & K Henrard Devising an adequate system of minority protection: Individual human rights, minority rights and the right to self-determination (2000) 35. 20 (1971) S. Ct. 1731. UZLJ Public Service Broadcasting, Risk of State Capture173

Assembly of the Council of Europe defines minority in a way that includes minorities at a regional level of a given federal state.21 It is clear from the above that the numerical inferiority characteristic of a minority is very difficult to sustain as criterion to be used to define or describe a minority. This assertion is fortified by reference to the African context that is different from the European context where numerical inferiority plays a major role. Dersso22 makes an interesting distinction between the European and African contexts when it comes to numerical inferiority. He argues that the European state emerged through a long history and organic process of state building by historically dominant groups. There is therefore a clear distinction between majority groups and minority groups in Europe. Again, minority rights issues become issues of number and cultural issues. On the other hand, the state in Africa was created as a result of colonialism and after independence, colonial boarders were maintained. There are some states in Africa where it will be difficult to identify a majority group with more than 50 per cent of the total

21 Parliamentary Assembly, Council of Europe, Recommendation 1201 (1993), ‘On an Additional Protocol on the Rights of National minorities to the European Convention on Human Rights’, 1993. 22 Unpublished: SA Dersso ‘Taking ethno-cultural diversity seriously in constitutional design: Towards an adequate framework for addressing the issue of minorities in Africa’ Unpublished PhD thesis, University of the Witwatersrand, 2010 8-9. In his words ‘This difference means that in the context of Europe and similarly situated countries elsewhere in the world, the issue of minorities is about how to protect numerically smaller and ethno-culturally distinct groups from assimilation into and domination by the majority. Although it involves power relations, it has basically been seen as a statistical and cultural issue. The numerical factor has accordingly assumed particular importance in the definition of a minority in the European experience. In Africa, by contrast, the issue of minorities is not a statistical problem involving counter-balancing of the numerical strength of a majority. It is more about the accommodation of population diversity. The central thrust of minority issues in Africa is how to recognise and accommodate in the processes of the state the diverse identities and interests of members of the various ethno-cultural groups constituting the post-colonial African state in a way that provides sufficient structures and processes for the expression and accommodation of those identities and interests.’ 174 University of Zimbabwe Law Journal 2018 population. Minority rights issues in Africa therefore mainly focus on power relations and accommodation of population diversity. The numerical inferiority characteristic, though not essential to defining a minority, can be used to assess the degree of vulnerability of a group and to help state parties ascertain the minimum numerical threshold required for a group to qualify for recognition as a minority and for the state to introduce special measures of protection. It can therefore be argued that if the numerical inferiority characteristic has been disqualified as essential to defining a minority. c. Non-dominance Capotorti argues that the minority group must be non-dominant in relation to the rest of the population. This characteristic relates to political,23 economic24 and social25 non-dominance. Non-dominance brings out the fact that ‘minority’ is a political, economic and social reality. Put differently, a minority is identified based on the degree of political and economic participation as well as social inclusion rather than on the number of members of a specific group. In fact, minorities are possibly undermined not so much by their weaknesses in numbers, but by their exclusion from power.26 A minority is therefore generally regarded as lacking the political, economic and social clout to influence decision-making processes of a state. It is therefore justifiable to protect minorities based on their position of general vulnerability and weakness.

23 Ramaga (n 13 above) 113 argues that ‘In modern times, political power is the major instrument of dominance. It may negate the possible influence of the majority by precluding the effect of all other elements of dominance.’ C Palley Constitutional law and minorities (1978) 3 contends that ‘minority’ means ‘É any racial, tribal, linguistic, religious, caste or nationality groups within a nation state and which is not in control of the political machinery of the state.’ 24 J Pejic ‘Minority rights in international law’ (1997) 19(3) Human Rights Quarterly 666-685. 25 M Nowak UN Covenant on Civil and Political Rights: CCPR commentary (1993) 188. 26 J Rehman The weaknesses in the international protection of minority rights (2000) 16. UZLJ Public Service Broadcasting, Risk of State Capture175

It is clear from the above that a minority is non-dominant politically, economically and socially. This is a key characteristic in defining a ‘minority.’ d. Nationality Capotorti highlights that members of the minority group must be nationals or citizens of the state. It is argued below that this characteristic is no longer applicable in international law. Jules Deschenes defines minorities as ‘… a group of citizens of a state…”27 Stanislav Chernichenko also extends the definition to permanent residents.’28 However, paragraphs 5.1 and 5.2 of the UNHRC General Comment 23 extend the application of Article 27 of the CCPR to non-citizens.29 The Kenyan High Court buttressed the position that minorities include non-citizens in IL Chamus v Attorney General of Kenya and Others.30 Even Capotorti himself, in an article published 6 years after production of his 1979 special report, dropped the requirement that members of the minority need to be nationals of the state.31 It is therefore clear from the above that the nationality characteristic is no longer a key characteristic in defining a ‘minority.’ Put differently, one does not need to be a citizen, national, or permanent resident for them to be regarded as a

27 E/CN4.Sub2/1985/31, 14 May 1985 at 30. Pejic (n 16 above) questions whether citizenship is a precondition for invoking article 27 and whether indigenous groups are entitled to the rights for which it provides. The issue of citizenship is dealt with below. As regard indigenous peoples, it is argued that indigenous peoples that have distinct ethnic, religious and linguistic characteristics and satisfy other criteria for minorities are covered by article 27. See clause 3.2 of the UNHRC General Comment 23. 28 ‘Definition of minorities’ Second working paper by Stanislav Chernichenko, UN DOC E/CN4/Sub2/AC5/1997/WP1, 2 April 1997, annex: Minorities – a working definition: article 1. 29 It says ‘É migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.’ 30 IL Chamus v The Attorney General and Others MISC Civil Application N0. 305/ 2004. 31 F Capotorti ‘Minorities’ in R Bernhardt (ed) (1985) 8 Encyclopedia of Public International Law 385. 176 University of Zimbabwe Law Journal 2018 minority. Considerations of proportionality can be used to determine the extent of protection of minority rights of nationals and non-nationals within a state.

2.2 Subjective criterion e. Solidarity or Collective will Finally, Capotorti observes that members of the minority group must have the collective will to preserve their own characteristics. Pejic32 explains the meaning of solidarity as follows: The sense of solidarity referred to in Capotorti’s definition implies an awareness by persons belonging to a minority group of the ethnic, religious, or linguistic characteristics that set them apart from the majority, and a desire to preserve those characteristics as central to the common identity. The solidarity33 or collective will in question can be ascertained from the fact that the group in question has kept its distinctive characteristics over a period of time. In Capotorti’s words:34 Once the existence of a group or particular community having its own identity (ethnic, religious or linguistic) in relation to the population as a whole is established, this identity implies solidarity between members of the group and consequently a common will on their part to contribute to the preservation of their distinct characteristics. Bearing these observations in mind, it can be said that the subjective factor is implicit in the basic objective element, or at all events in the behavior of the members of the group.

32 J Pejic ‘Minority rights in international law’ (1997) 19(3) Human Rights Quarterly 666-685. 33 JA Sigler Minority rights: A comparative analysis (1983) 5 defines minority as ‘In its simplest form we can regard as a minority group any category of people who can be identified by a sizable segment of the population as objects for prejudice or discrimination or who, for reasons of deprivation, require the positive assistance of the state. A persistent non-dominant position of the group in political, social, and cultural matters is the common feature of the minority’. 34 Capotorti (n 5 above) 96. UZLJ Public Service Broadcasting, Risk of State Capture177

Solidarity can also be gleaned from the group’s refusal to assimilate. According to Shaw35 ’[i]t is axiomatic that a group that has survived historically as a community with a distinct identity could hardly have done so unless it had positively so wished.’ Deschenes defines solidarity as ‘a collective will to survive and whose aim is to achieve equality with the majority in fact and in law.’36 Solidarity is therefore an essential characteristic in defining a ‘minority’ and ‘minority language.’ It is apparent from the above analysis that only three characteristics are indisputably key in defining or describing a minority. These are a) Possession of stable ethnic, religious and linguistic characteristics that differ sharply from those of the rest of the population; b) Political, economic and social non-dominance and c) Collective will to survive and maintain these distinct characteristics.

2.3. Definition of minority A minority is therefore ‘a politically, economically and socially non-dominant population group within a nation that is distinguished by reference to its stable ethnicity, religion and or language and has a collective will to survive and maintain its ethnicity, practice its religion and use its language.’37

3. THE CONCEPT OF MINORITY LANGUAGE The concept of minority language is best understood in the light of concept of minority discussed above and how minority language has been defined in international and regional treaties. One treaty that was bold enough to define a minority

35 MN Shaw ‘The definition of minorities in international law’ (1991) 20 Israel Yearbook on Human Rights 13-42 40. 36 J Deschenes E/CN4/Sub2/1985/31, 14 May 1985 30. 37 K Henrard ‘The Interrelationship between Individual Human Rights, Minority Rights and the Right to Self-Determination and Its Importance for the Adequate Protection of Linguistic Minorities’ (2001) 1 The Global Review of Ethnopolitics 41-61 43 argues that ‘[a] minority is a population group with ethnic, religious and linguistic characteristics differing from the rest of the population, which is non-dominant, numerically smaller than the rest of the population and has the wish to hold on to its separate identity.’ 178 University of Zimbabwe Law Journal 2018 language is the European Charter for Regional or Minority Languages (European Languages Charter). Article 1 defines minority or regional languages as: Languages different from the official language(s) of that State traditionally used by part of the population of a state that are not dialects of official languages of the state, languages of migrants or artificially created languages. An analysis of the above definition reveals two glaring weaknesses. The first weakness is that the definition excludes the languages of migrants. It seems to follow Capotorti’s view that minority languages are limited to nationals or citizens. Such an approach is inconsistent with article 27 of the CCPR as read with the UNHRC General Comment 23. The second weakness is that the definition seems to presuppose that once a language is accorded official language status by the state, it (together with its dialects) ceases to become a ‘minority language.’ Put differently, the European Language Charter presupposes that a language is a ‘minority language’ if it is not recognized and accorded official language status by the state. This approach is not supported by international jurisprudence and creates four problems. The first problem is that there is nothing in International law that suggests that once a language has been accorded official language status it ceases to be a minority. Clause 5.2 of UNHRC General Comment 23 makes it clear that the existence of minorities (in this case linguistic minorities) is not subject to the recognition by the state involved. This essentially means that the granting of official language status to a minority language does not eliminate or invalidate its real minority condition or its minority language status. The definition of a minority in article 1 of the European Language Charter is in direct conflict with article 27 of the CCPR as interpreted by clause 5.2 of General Comment 23 of the UN Human Rights Committee.38

38 EJR Vieytez ‘Official languages and minority languages: Issues about their legal status through comparative law’ (2004) II Mercator International Symposium: Europe: A new framework for all languages? 26 supports this views when he argues that official language status does not automatically eliminate the minority condition. UZLJ Public Service Broadcasting, Risk of State Capture179

The second problem is that there is no clearly defined meaning of an official language. No international legal document contains any definition of official language. De Varennes defines an official language as ‘a form of legal recognition of an elevated status for a language in a state or other jurisdiction.’39 A UNESCO report defined an official language as ‘a language used in the business or government – legislative, executive and judicial.’40 What is clear though from International law is that the declaration of official language status is a political process left to the discretion and prerogative of each state. For instance, in Podkolzina v Latvia,41 the European Court of Human Rights held that42 … [s]imilarly, regard being had to the principle of respect for national characteristics enunciated above, the Court is not required to adopt a position on the choice of a national parliament‘s working language. That decision, which is determined by historical and political considerations specific to each country, is in principle one which the State alone has the power to make. International law does not quite clearly define the factors that need to be taken into consideration when a state is considering affording official status to a language. For instance, in Diergaardt v Namibia,43 the UNHRC did not spell out the criteria used to afford official status to a language.

39 F de Varennes ‘Draft report on international and comparative perspectives in the use of official languages: models and approaches for South Africa’ (October 2012) 4. In the same vein, a decision of the Spanish Constitutional Court 82/1986 of 26 June, which decided on the unconstitutionality appeal against the Basic Law on the Normalisation of Basque Language Use, second legal fundament stated that ‘É a language is official when it is recognised by public authorities as the normal means of communication within and between themselves and in their relations with private individuals, with full validity and legal effects.’ 40 UNESCO Report entitled ‘The use of vernacular languages in education,’ (1953) 46. 41 Podkolzina v Latvia 2002 ECHR 34. 42 See Birk-Levy v France, application no. 39426/06, published on 6 October 2010 . 43 ‘n 2 above.’ See also the Ballantyne case (n 14 above). 180 University of Zimbabwe Law Journal 2018

Instead, the Committee took the view that whatever official languages a state freely chooses, it cannot use such a choice in a way which would violate international human rights law such as freedom of expression. However, reference to other sources help reveal some of the criteria a state can use in considering to grant a language official status. For example, Podkolzina v Latviaet al establishes that the sovereign state can take into account historical and political considerations. The UN also took the view that the determination of an official language or languages is a historical, social and political process.44 Caportorti contends that these factors include the numerical importance of a linguistic community, their political and economic position within the state and the stage of development of a language.45 Vieytez summarises these social, historical and political considerations as a) the sociolinguistic situation of the country; b) the linguistic dynamics of the country and its context; c) the pre-existing legal situation and d) the political organisation of the state.46 The third problem is that there is no clarity in international law of what the content of official language status entails. Does it imply a more or less uniform legal status or else a

44 Study of the problem of discrimination against indigenous peoples, UN Doc. E/CN.4/Sub.2/476/Add.6 states that ‘During the process of nation building, a language, usually that of the segment of the population which gains supremacy and imposes itself socially, politically and militarily on other segments in various regions and whose language dominates the other languages or dialects in the country, becomes, because of these extra-linguistic factors, the language of highest standing and, ultimately, the official language. Official recognition is of great importance to this and the other languages spoken in the country because, whether or not it is provided for in the Constitution or other basic law, such a selection means that this privileged linguistic instrument will be used in the various activities of the StateÉ At the end of the colonial dependenceÉ the people of many countriesÉ faced the problem of having to decide which language would henceforth be the official language of their new State. During this process, what became the official language – either the single official or one of them – was often the language introduced by the colonizers; in a few cases, a national language was chosen.’ 45 F Capotorti (n 5 above) 75-76. 46 EJR Vieytez (n 38 above) 15. UZLJ Public Service Broadcasting, Risk of State Capture181 status that can be compared between different countries? Is it legally binding or symbolic? What rights does official language status bring to a language? There is also no clarity regarding the levels of official language status. In a study of constitutions throughout Europe, Vieytez47 came up with four levels of official languages status that he calls officialities. The first level is what he calls ‘full officiality and dominant language.’ In this case, official language status shows all the possible effects and the language involved is considered an element of the state’s linguistic identity. The official language is fully used in government business. Examples of full officiality and dominant language include French in France or Monaco, Swedish in Sweden or Russian in the Russian Federation. The second level of official language status is what Vieytez calls ‘full officiality and non-dominant language.’ In this case, a language is afforded full official language status but it is not dominant because of social limitations. The language is still an identity element of the state although it evokes a colonial past (Malta) and it is an element of a more symbolic nature generally based on historical or geographical explanations. Examples include Irish Gaelic in Ireland, Swedish in Finland, English in Malta, Russian in Belarus or French in Luxembourg. The third level of official language status is what Vieytez calls ‘Partial or limited officiality and dominant language.’ This level comes with two variations. The first variation is called ‘exclusive officiality’ where the territorial principle is strictly _adopted and different languages are given official language status in the areas where they are dominantly spoken. This is the case of French or German in Switzerland or Belgium and the Swedish of the Aaland Islands. The second variation is called ‘shared officiality’ where official language status is shared by two or more languages within a territory, municipality, province or region. These are the cases of Feroese in the Feroe Islands, Greenlandish in Greenland, German in the South Tyrol, Russian in Transnistria or Crimea, Albanian in Kosovo or Catalan in Catalonia or the Balearic Islands.

47 EJR Vieytez (n 38 above) 24-25. 182 University of Zimbabwe Law Journal 2018

The fourth and final level of official language status is what Vieytez calls ‘partial or limited officiality and non-dominant language.’ Again, this has two variations. The first is called ‘officiality in the institutional sphere of political autonomy.’ This refers to cases where a language, although giving way socially to the state language with which it shares officiality, benefits from some symbolic institutional presence in a substate organised sphere. The second variation is called ‘officiality in the local institutional sphere without its own political power.’ In this case, official language status is largely limited in the institutional, geographical or population spheres. Language barely fulfils symbolic functions regarding the outside sphere although it may logically operate as an element of cohesion of the group and presents a certain tolerance of the state towards plurality. Examples include Slovenian in Italy, Sorbian languages in Germany, Hungarian in Slovenia or Sami in Norway. Vieytez’s observations and classification of official language status therefore reveals a need to clarify the content of official language status at international law. The final problem is that the granting of official language status is in some cases only symbolic and does not guarantee the use of the language by authorities. Put differently, the use of a language by state authorities does not necessarily correspond to its official status. The use of official languages in administration, public education, public health, media, courts, business and other government activities depends on the provisions of the individual country’s constitution, legislation, policies and jurisprudence. This ranges from the language being symbolic, to defined limited use of language, to undefined use of language to unlimited use of an official language. The bottom line though is that declaring a language official does not guarantee its use unless there is national legislation defining the extent of use. For example, in Société des Acadiens du Nouveau-Brunswick v Association of Parents for Fairness in Education,48 the Supreme Court of Canada held that the recognition of the

48 Soci_t_ des Acadiens du Nouveau-Brunswick v Association of Parents for Fairness in Education (1986) 1 S.C.R. 549 (Canada) para 59. UZLJ Public Service Broadcasting, Risk of State Capture183 status of official languages for French and English at the federal level under Article 16 of the Canadian Constitution did not guarantee as such a right to any type of service or use in either official language.49 De Varennes comments on this decision as follows:50 Official language status in Canada was merely a political or symbolic gesture which had to be further developed in other constitutional or legal provisions. It was the latter which ultimately determine the degree and use of that country‘s official languages – or specific constitutional provisions on the actual use of these languages. This decision clearly highlights that official language status does not guarantee use of that language. It would be wrong

49 A contrary view is expressed in Mentzen alias Mencina v Latvia, [Application no. 71074/01, admissibility decision of 7 December 2004] where the European Court on Human Rights held that “Éthe Court acknowledges that the official language is [É] one of the fundamental constitutional values in the same way as the national territory, the organisational structure of the State and the national flag. A language is not in any sense an abstract value. It cannot be divorced from the way it is actually used by its speakers. Consequently, by making a language its official language, the State undertakes in principle to guarantee its citizens the right to use that language both to impart and to receive information, without hindrance not only in their private lives, but also in their dealings with the public authorities. In the Court‘s view, it is first and foremost from this perspective that measures intended to protect a given language must be considered. In other words, implicit in the notion of an official language is the existence of certain subjective rights for the speakers of that language. “Suffice to mention is that this decision does not accurately reflect the international law position as argued above. Varennes [on page 10 of the report cited above] tries to justify this decision when he argues that“É there is therefore, in the absence of legislation to the contrary, at least a very strong implication that a government has an obligation to use such a language, and a corresponding individual right for citizens to use that official language.” The flipside of this argument is that through legislation, a government can limit or totally eliminate the use of a language that has been declared official. Varennes is indirectly acknowledging the dominant international law position that official language status does not guarantee use. National legislation defines the extent of use of a language. 50 F de Varennes (n 39 above) 4. 184 University of Zimbabwe Law Journal 2018 then to assume that a minority language that is afforded official language status ceases to be a minority merely by the granting of the official language status. This is especially so if the official language status is merely symbolic or political and the language is not used in government spheres. The use of a language (and not official language status) therefore becomes fundamental in determining whether it is minority or majority. This is especially supported by the fact that even though English is not the official language of United Kingdom, United States of America, New Zealand and Australia, English has been the language predominantly used in these countries. English is not a minority language in these countries. Accordingly, official language status cannot therefore be used to define a ‘minority language’ or to distinguish it from a majority language. So, a language can be official but if it is not used in spheres of government, its speakers remain discriminated against and the language is considered minority. The extent of use of a language in the public or government domain is therefore an essential criterion that can be used to define a minority language. This approach finds support in the last part of the definition of a minority language given by Batibo that states as follows:51 Sociolinguistically, a minority language is defined not only by its relative demographic inferiority but also, and more so, by its limited public functions. Thus, a minority language can be identified horizontally by looking at its weak or non-dominant position in relation to other languages in the region or nation, and vertically on the basis of its low status and absence of use in public or official areas. This argument fits perfectly well with the ‘functional load’ concept developed by Pandharipande which states as follows:52 [t]he concept of “functional load” in this context refers to the ability of languages to successfully function in one or more social domain. The load is considered to

51 HM Batibo Language decline and death in Africa: Causes, consequences and challenges (2005) 51. 52 RV Pandharipande ‘Minority matters: Issues in minority languages in India’ (2002) 4 International Journal on Multicultural Societies 1-2. UZLJ Public Service Broadcasting, Risk of State Capture185

be higher or lower on the basis of the number of domains it covers. The higher the number of domains, the higher the load… The higher the functional load, the more powerful the language is perceived to be. Thus, minority languages are those that carry a lower functional load and thereby hold a lower position in the power (political, economic and social) hierarchy. It is clear from the above then that the use of a language in the public government domain is a determinant factor in establishing whether a language is a ‘minority’ or ‘majority’ language. This ties perfectly well with the non-dominance criterion of a minority. Therefore, a language is a ‘minority language’ if it is politically, economically and socially non- dominant in terms of use in the public or government domain. In summary, the following characteristics are essential in defining a minority language a) its speakers must have a stable linguistic characteristic that differ sharply from those of the rest of the population; b) its speakers must be politically, economically and socially non-dominant; c) its speakers must have a collective will to survive and maintain these distinct linguistic characteristics and d) the language must have limited use in the public or government domain. Taking these criteria into consideration, a minority language can be defined as ‘a language (including sign language) that has limited or no use in the public or official or government domain. Its speakers are a politically, economically and socially non-dominant distinct linguistic population group within a nation and they show a collective will and mutual solidarity focused on preserving their language.’

4. CONCLUSION The concepts of minority and minority language are evolving concepts in international human rights law. Even though there is no agreed definition for the two concepts, the analysis above has ably demonstrated the existence of three agreed characteristics of minorities. These are a) Possession of stable ethnic, religious and linguistic characteristics that differ sharply from those of the rest of the population; b) Political, economic and social non-dominance. For a minority language, this is further shown by the fact that the language must have 186 University of Zimbabwe Law Journal 2018 limited use in the public or government domain. and c) Collective will to survive and maintain these distinct ethnicity, religion and language. AN UPDATE ON COMPLIANCE BY ZIMBABWE WITH DECISIONS AND JUDGMENTS OF INTERNATIONAL HUMAN RIGHTS JUDICIAL AND QUASI-JUDICIAL BODIES

BY TARISAI MUTANGI1

I. INTRODUCTION The human rights discourse continues to follow a path of increasing emphasis on ensuring domestic implementation of human rights standards by state parties to various human rights instruments. It appears there is a clear and deliberate shift of focus from standard setting ushered by the proliferation of human rights instruments and institutions after WWII. Still to a fairly substantive degree, standard setting continues to be part of international human rights discourse as supervisory institutions continue to elaborate on them for the mutual benefit of duty and rights bearers alike. These human rights standards in question are predominantly provided for in international treaties and authoritative interpretations of supervisory institutions taking the form of general comments, views, findings, general recommendations as well as in decisions and judgments of judicial tribunals established at that level. In states where international law has influenced the domestic legal strata, international human rights standards are variably transposed into national bills of rights. On their part, legally binding judgments of international tribunals as well as recommendations of quasi-judicial mechanisms such as treaty-bodies, have immensely contributed to the standard setting by providing authoritative interpretation of rights and obligations in international treaties

1 LLB (Hons), LLM and LLD. Dr. Tarisai Mutangi is a lecturer at the University of Zimbabwe, practices law in Harare Zimbabwe where he also consults for governments and international organisations. He is a Research Associate with the Centre for Human Rights, University of Pretoria, South Africa. The views expressed herein are his own and not necessarily those of the organisations he is professionally affiliated to. He can be contacted at [email protected].

187 188 University of Zimbabwe Law Journal 2018 or conventions. It logically follows that once states are aware of their respective obligations, it remains that they implement same in compliance with those obligations. Being a state party to various global, regional and sub-regional human rights instruments, individuals and juristic persons alike have brought Zimbabwe before judicial and quasi-judicial human rights supervisory bodies alleging violation of some provisions of these instruments. As will more fully appear in this discussion, a number of decisions and judgments have been issued in favour and against the Government of Zimbabwe. It is the core objective of this paper to trace all these pronouncements where after the writer will appraise the readers regarding the extent of implementation by that State. It is intended that this paper will cover much of judgments and decisions issued by international human rights supervisory bodies established by treaties that have been ratified by Zimbabwe. These institutions include tribunals, treaty-bodies as well as mechanisms such as the United Nations Human Rights Council (herein UN Human Rights Council). Discussing both tribunals and quasi-tribunals appears prudent as it would enable an analysis into whether the status of the rendering institution has a bearing on Zimbabwe’s compliance pattern. Wherever possible, the discussant will endeavour to proffer reasons to explain the pattern of implementation and suggest the way forward.

2. UNDERSTANDING CONCEPT OF COMPLIANCE OF STATES WITH DECISIONS In its most simple terms, compliance entails the process and action taken by a state in order to remedy the state of affairs found inconsistent, by a court or tribunal, with that state’s international obligations. Invariably, the presiding body or tribunal spells out the nature of the violation in detail and conduct expected of the state concerned in order to remedy the violation and guarantee non-recurrence.2 Some scholars

2 This conduct translates into what are commonly referred to as measures taken by states to redress the violation in question. The European human rights system has become synonymous with the concept of special and general measures to implement the European UZLJ Zimbabwe Compliance on Decisions & Judgements189 have attempted to shed light on the understanding of compliance by examining how and why nations behave the way they do.3 In answering this question others have postulated theories to explain the phenomenon of why states sometimes decide to live up to their human rights obligations.4 In so doing, theorists have mentioned virtually every stakeholder who should participate in the compliance process, and the specific roles they ought to play.5 This is compliance through ‘deliberate’, not ‘serendipitous compliance’ approach.6 States have to take deliberate actions in order to fully execute any judgments against them. This is because compliance ‘is a matter of state choice’ that strongly draws from the political will of a particular state.7 Compliance with decisions and judgments of supervisory institutions is enjoined by many factors some of which include the principles of utmost good faith as well as the rationale behind the concept of a remedy in international law. On its part, utmost good faith (pactum sund servanda) derives its origins from article 27 of the Vienna Convention on the Law of Treaties (herein Vienna Convention).8 Following ratification, State parties to a treaty ought to behave in good faith thereby desisting from engaging in conduct that defeats the spirit and purpose of the treaty they have ratified. However, it is important to note that human rights treaties rarely proscribe the virtue of good faith. Perhaps such proscription has been

Court of Human Rights [Herein European Court] judgments. Special measures refer to action taken that only deal with the specific circumstances of the victim, whereas general measures are designed to reach beyond the life of the victim concerned, for instance, by guaranteeing non-recurrence of the condemned violation in respect of other members of the public. 3 HH Koh ‘Why do nations obey international law?’ (1997) 106 Yale Law Journal 2599. 4 HH Koh ‘Transnational legal process’ (1994) 75 Nebraska Law Review 181. 5 As above. 6 PM Haas ‘Compliance with EU directives: insight from international relations and comparative politics’ (1998) Journal of European Public Policy 17 18. 7 Haas (n 5 above) 19. 8 Adopted by the United Nations General Assembly and came into for in 1969. 190 University of Zimbabwe Law Journal 2018 rendered redundant by the fact that scholarship insists that much of the provisions of the Vienna Convention have crystallised into customary international law.9 If that be the case, the need to repeat the principle of good faith in the text of each human rights instrument ceases to have significance. Paulson, writing on compliance with judgments of the ICJ, suggests the ‘acceptance of the judgment as final, reasonable performance in good faith of any binding obligation’ as pivotal principles relative to compliance with international judgments.10 The author explains ‘compliance in good faith’ as tantamount to executing a final judgment in such a way as to deliberately avoid ‘superficial implementation or otherwise circumventing it’.11 All in all, the cross-cutting principles that explain compliance are, accepting a ‘judgment as final’, then judgment debtor engages in ‘reasonable performance’ in ‘good faith’. Once these three are achieved, state conduct could be readily described as full compliance. One interesting upshot from this discussion is whether compliance could be measured to assess a state’s performance as it were. On the face of it, measuring compliance is elusive given the ambiguity of treaty provisions (the ‘first level’ of compliance). This might bring confusion as to what the expected behaviour of states arising from the treaty provisions should be. However, in spite of the complexity of the exercise, compliance can surely be measured although a great deal of controversy has been generated regarding the tools, instruments, formula or indicators for such measurement. Raustiala insists that ‘measuring compliance with an international commitment is typically conceptually straightforward’, the challenge lies in explaining the behaviour surrounding compliance.12 We comment here that adoption

9 Alexander Orakhelashvili, Sarah Williams (eds) 40 Years of the Vienna Convention on the Law of Treaties (2010) xviii; E Cannizzaro The Law of Treaties Beyond the Vienna Convention (2011). 10 C Paulson ‘Compliance with final judgments of the ICJ since 1987’ (2004) 98 The American Journal of International Law 434 435-6. 11 Paulson (n 9 above) 436. 12 K Raustiala ‘Compliance and effectiveness in international regulatory co-operation’ (2000) 13 Case Western Reserve Journal of International Law 387 391. UZLJ Zimbabwe Compliance on Decisions & Judgements191 of quantitative research methods would end in mobilisation of statistics as to the number of decisions complied with as a fraction of the total decisions rendered by a particular court or within a given period of time. However, as already mentioned, scholarship has been confronted by the challenge of how to explain the reasons behind compliance or non- compliance beyond the level of speculation. The task is compounded by the general unwillingness of government to open up to the public regarding the motives underlying their decisions. Indeed compliance with judgments of a court presents less daunting modalities to measuring such compliance. Posner and Yoo propose a simple formula as a tool for measuring compliance with judgments, namely,13 x/n times 100%, where x = the number of judgments that have been complied with, and n represents the total number of judgments rendered, the value being then reduced to a percentage to reflect the magnitude of such compliance on scale.14 Viewing from a different perspective, Paulson maintains that the good faith proposition discussed above constitutes ‘a practical measure of compliance’. This has been discovered to be so following some judgments of the ICJ.15 Viljoen and Louw have embarked on assessing compliance trends by states with decisions of the African Commission on Human and Peoples’ Rights (herein African Commission) and came up with various strains of compliance such as non-compliance, partial, substantial and full compliance.16 As will be discussed in detail later in this paper, not only were the authors able to measure or assess compliance, but also came up with reasons for certain compliance patterns after analysing the data so collected.

13 EA Posner and JC Yoo ‘Judicial independence in international tribunals’ (2005) 93 California Law Review 1 28. 14 The numerical expression of the formula has been formulated by this writer deducing from what Posner and Yoo (above) 28, had suggested. 15 Paulson (n 9 above) 436 where he quotes the ICJ judgment on Hungary v Slovakia 1997 ICJ Rep. 1, paras. 141-147.

16. F Viljoen and L Louw ‘State compliance with the recommendations of the African Commission on Human and Peoples’ Rights - 1993-2004’ (2007) 101 American Journal of International Law 1. 192 University of Zimbabwe Law Journal 2018

The anatomy of a remedy A remedy or reparation at international law is an act designed to redress breach of an international law obligation. It is immaterial to whom the obligation is owed. Conventional conception of international law recognised only states as rights bearers at that level. This ideology, however, purled into insignificance with the advent of the international human rights movement at the brink and aftermath of WWII. The adoption of human rights treaties engraved the paradigm shift ushering individuals as human rights bearers vis-à-vis subscribing states. The modern conceptualisation of a remedy was elaborated by the International Court of Justice (herein ICJ) in the Chorzow Factory case as follows: “Reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it-such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.”17 The above quotation summarises two principles key to discussions on compliance. First, it presupposes that where compliance has been effected by way of implementing a decision or judgment, the action taken will wipe away the adverse effects of the violation and restore the status quo ante in force prior to the violation being corrected. Second, the need to wipe away the adverse consequences of the violation now presents itself as a compliance indicator by which compliance is partly assessed. This revelation is critical as it will be used to assess compliance in respect of the many judgments and recommendations issued against Zimbabwe by various international human rights law supervisory institutions.

17 Germany v Poland 1928 PCIJ, Ser. A No. 17. UZLJ Zimbabwe Compliance on Decisions & Judgements193

International legal framework on compliance with international decisions It must be noted from the outset that international institutions of a purely judicial nature are very limited as compared to a myriad at the national level. As a matter of fact only the Southern Africa Development Community Tribunal (herein SADC Tribunal and as then it was)18 and the International Court of Justice (herein ICJ)19 are the only judicial institutions with inherent competence to preside over complaints against Zimbabwe. These two courts are mentioned here to the extent that they preside over governance-related disputes. The African Court on Human and Peoples’ Rights (herein African Court) is another institution of significance to Zimbabwe, perhaps only potentially. It is argued here ‘potentially’ in the sense that the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (herein African Court Protocol), like any other international treaty, requires ratification by each African Union (AU) member state in order to be binding in relation to that state.20 Despite taking part in the negotiations leading to the adoption of the African Court Protocol, Zimbabwe has neither signed nor ratified that Protocol. This state of affairs makes her unreachable to the judicial arm of the African Court. As regards the framework enjoining compliance by states with judicial decisions, there are mainly two provisions in international human rights treaties. First, almost every human

18 The SADC Tribunal is currently undergoing legislative review. However, it is anticipated that the new form this Tribunal will take would emphasise competence over member states in purely trade-related institutions. This Tribunal is discussed here to the extent that it had human rights-related competence prior to its suspension by the SADC Summit in 2009. In keeping with legal traditions, it is contented that the legal authority of decisions rendered prior to the legislative process remain in force and the decisions are still good for enforcement. 19 This Court is established by Chapter XIV of the United Nations Charter. Over and above its Rules of Procedure, the ICJ has a Statute that generally regulates the manner in which it conducts its business. 20 In terms of Article 34(6) of the African Court Protocol, a state needs to lodge a declaration accepting the competence of individuals to file complaints against that state. 194 University of Zimbabwe Law Journal 2018 rights treaty provides for a principle with the effect that on ratification, contracting states make an undertaking to give effect to the provisions of the treaty in questions by taking ‘legislative, judicial, administrative and other measures’.21 It is argued here that where an international tribunal renders a binding decision against a state, compliance with such a decision is conduct tantamount to giving effect to the provisions of the treaty establishing that tribunal. This is so accepting the fact that states take all forms of measures to implement court decisions as guided by the specific orders of the decision being implemented. Compliance by state parties with decisions of human rights monitoring institutions is another way through which states give effect to the provisions of the parent treaty. Executing judgments translates to the realisation, by victims of human rights violations, of measures taken to extinguish, as far as possible, the adverse consequences of violation of the treaty provisions in relation to them. Put differently, genuine execution of judgments by the state supported with guarantee of non-repetition is a way to provide effective remedies as required by every treaty in the event of violation.22 This explains why every human rights system has put in place, legislatively or by way of practice, mechanisms and institutions mandated to monitor compliance by states with decisions and judgments of the relevant supervisory institutions.23

21 See Article 1 of the African Charter. 22 The issue of effective remedies is indirectly provided for in many human rights treaties. However, article 2(3) of the International Covenant on Economic-Social and Cultural Rights [herein IESCR] is more direct on this obligation. See G Musila ‘The Right to an Effective Remedy under the African Charter on Human and Peoples’ Rights’ 6 (2006) AHRLJ 442 for a full discussion on effective remedies under the African Charter and the practice of the African Commission on Human and Peoples’ Rights. 23 The Inter-American Court has taken a leading role through its ‘written procedure’ to ensure it monitors compliance by state parties to the Organisations of American States [herein OAS] with its final judgments. On its part the Council of Europe has earned reputation by installing the Council of Ministers as the one to oversee execution of judgments of the European Court for Human Rights in terms of Article 46(2) of the European Convention (as amended). UZLJ Zimbabwe Compliance on Decisions & Judgements195

Second, and perhaps more direct to the point is the provision often found in statutes establishing courts that re-affirm that states, upon ratifying such a statute, undertake to ‘comply with judgments in cases where they are parties’.24 It is argued here that this provision is more direct than the one that simply provides that decisions of a particular court or tribunal are binding on member states. Compliance with judicial decisions in some of the leading human rights systems such as the European framework is anchored on such provisions. Some human rights instruments go a step further making states undertake compliance with decisions of international courts or tribunals. These instruments legislate on the manner in which decisions of specified courts or tribunals must be implemented by contracting states in their respective domestic systems. The former article 32 of the SADC Tribunal Protocol clearly stipulated that decisions of the SADC Tribunal were to be enforced in member states by way of the procedure for recognition and enforcement of foreign judgments.25 This is a procedure that exists both in the common and civil legal traditions. In fact this provision was put to test in two SADC member states, namely Zimbabwe and South Africa, involving a SADC Tribunal decision in Mike Campbell and others v Zimbabwe with somewhat different outcomes.26 In both cases,

24 See Article 30 of the African Court Protocol, Article 46(1) of the European Convention on Human Rights, Article 68(1) of the Inter- American Convention on Human Rights, Article 32 of the Protocol on the SADC Tribunal. 25 The author is aware that at the time of writing this paper, the Protocol on the SADC Tribunal and Rules of Procedure Thereof was undergoing legislative reform with the possibility that article 32 could be reviewed bearing in mind that the desire of some SADC member states to undermine judgments of the SADC tribunal appeared to be the major driver of the legislative process. The author also has on file the Draft Protocol on SADC Tribunal adopted by the SADC Summit in Victoria Falls, Zimbabwe in August 2014. 26 In 2009, the Zimbabwe High Court presided over a motion requesting the recognition of the SADC Tribunal decision for purposes of enforcement against the Government of Zimbabwe in the case of Gramara (Pvt) Limited & Ors v Zimbabwe & Ors Unreported Judgment HH-169-2009. In June 2013 the Constitutional Court of South Africa allowed the enforcement of a SADC Tribunal decision in South Africa on the case of Fick & Ors v Government of Zimbabwe (2013) ZACC 22. 196 University of Zimbabwe Law Journal 2018 the applicants who were successful before the SADC Tribunal against Zimbabwe sort to enforce the part of the judgment that offered them protection from threatened land acquisition in Zimbabwe, yet in South Africa the Applicants sought to enforce the costs order part of the same Campbell judgment. The two cases immensely contributed to the body of knowledge on the domestic implications of ratifying SADC community law, the practical application of the foreign judgments procedure as the avenue for enforcement, and the politics involved in state compliance with international judicial decisions.27 In other parts of Africa, article 9 of the Revised Protocol on the Statute of the Community Court of Justice of the Economic Community of West African States (herein ECOWAS Community Court of Justice) provides in the same way as article 65 of the Inter-American Convention of Human Rights re-affirms, namely, that the ‘procedure utilised for enforcing civil judgments’ must be adopted to give effect to judgments of the Community Court of Justice. In a way that reference incorporates the foreign judgment enforcement procedure preferred by SADC community law, among other legal options available to enforce civil court judgment in the domestic setting. Be that as it may, this is all what human treaties provide regarding the need to implement judicial decisions as well as the procedure to be adopted at national level.

Constitutional framework on compliance with international obligations Zimbabwe adopted a modern and progressive constitution following its publication in the Government Gazette on 22nd May 2013.28 This Constitution represents a radical departure

27 For a commentary on the two cases see T Mutangi ‘Fick & Others v the Republic of Zimbabwe: A national court finally enforces the judgment of the SADC Tribunal as a foreign judgment – a commentary on implications on SADC Community Law ‘1 (2014) Midlands State University Law Review 83. 28 The qualitative is on account of the fact the Zimbabwean Constitution provides for all generation of rights for the very first time in Zimbabwean constitutional tradition, backed up with strong provisions acknowledging and accepting the influence of international law in UZLJ Zimbabwe Compliance on Decisions & Judgements197 from the ‘Lancaster House’ Constitution of 1979 adopted at a time when the human rights movement was still finding its way especially into the domestic legal orders of formerly colonised states. Admittedly, the Lancaster House Constitution, until its disposal, remained a negotiated piece of legislation to manage a protracted and bloody civil war to end British colonisation. The general citizenry made no meaningful contribution to its content. As evidence of its failure to keep up with the ever-changing landscape of fundamental rights, that constitution was amended in piece- meal nineteen times. Accordingly, the 2013 Constitution is a milestone improvement which saw the inclusion of socio- economic and cultural rights among other ground-breaking provisions thereby triggering a massive process of legislative revision and reform in the country.

Section 34 of the Constitution of Zimbabwe – domestication requirement One of the notable changes ushered in by the 2013 Constitution was the inclusion of a provision specifically on the fate of international human rights treaties ratified by Zimbabwe. Traditionally, national constitutions including Section 111B of the erstwhile Constitution would just go as far as prescribing the status of international treaties in comparison to national law. Section 34 now goes a step further to require that Zimbabwe ‘… must ensure that all international conventions, treaties and agreements to which Zimbabwe is a party are incorporated into domestic law’. What is clear from this provision is the lack of time frames within which such incorporation ought to be implemented following ratification or accession to particular treaties. That is expected. International and national law have not yet developed to an extent that it puts time frames on domestication of treaties. On their part constitutional provisions are usually skeletal in nature needing implementing framework in the form of

the interpretation of the bill of rights, expanded scope of locus standi when enforcing the bill of rights, entrenched bill of rights and a clear intent to provide effective remedies in the event of violation of rights. It remains to be seen how the state will give effect to these progressive provisions. 198 University of Zimbabwe Law Journal 2018 elaborate legislative provisions to give effect to obligations or aspirations of the supreme law. The point here is that section 34 requires that the state incorporates into national law those treaties from which it draws its international obligations. The consequence that follows the domestication or incorporation of human rights treaties is to bring legal standing within the reach of potential litigants. Similarly, courts of law are simultaneously vested with competence to preside over law suits based on domesticated international treaties. By so domesticating international treaties, Zimbabwe would be giving effect to the provisions of those treaties. By implication, the requirement for domestication in section 34 of the Constitution must be extended to cover international decisions. International legal decisions face the same fate of non-recognition at the national level just like treaties unless there is a framework for their reception. International law rarely legislates on the status in national law of international judgments or judicial decisions. The dualist or monist conception of international and national law does not seem to adequately address the issue of status of international decisions or judgments in national law.29 This presents complex problems for the reception of same into national law. On their part states are given ammunition to resist domestic implementation of international decisions on account of exclusive control they exercise over national law. By extending the ambit of section 34, Zimbabwe is enjoined to at least ensure that international treaties establishing courts and tribunals at that level are domesticated thereby in a way receiving such courts into the national legal framework.

29 The dualist approach to status of international law in national legal orders is that international law only becomes part of national law upon adoption of an act of parliament giving it that status, whereas monism is a position opposed to dualism to the extent that upon ratification, such treaties become part of national law without need for a legislative process as is the case with dualism. Nevertheless, practice has shown that most dualist legal traditions still require that the treaties so ratified have to be first published in the government gazette or by whichever name the publication is called before they can be applied at national level. UZLJ Zimbabwe Compliance on Decisions & Judgements199

However, the simpler way in order to avoid the hierarchical conflicts between international and national courts is to legislate on the status of international decisions in national law. Put differently, Zimbabwe must facilitate the reception of international decisions under the strength of the domestication required by section 34 of the 2013 Constitution.

Compliance with decisions of the African Commission on Human and Peoples’ Rights The African Commission is a treaty body established by the African Charter on Human and Peoples’ Rights (herein African Charter) under the African human rights system.30 Although now that it works in complementarity with the newly established African Court on Human and peoples’ Rights (herein African Court), its mandate is clearly defined in Article 45 of the African Charter as promotional and protective of human rights in Africa. In fulfilment of its mandate, the African Commission, among other things, is endowed with the responsibility to undertake in-depth studies in human rights and organise seminars to deliberate human rights issues with a view to solving chronic problems in the area.31 This Commission could also deliver advisory opinions at the request of authorised organs and or organisations.32 Perhaps more germane to this discussion is the competence of the African Commission to preside over inter-state communications in terms of Article 47 of the African Charter33 as well as individual communications submitted by individuals in terms of Articles 55 through to Article 59 of the Charter, whereupon such individuals or their representatives would be alleging violation of the provisions of the African Charter by a state party thereto. While no inter-state communication was

30 Established under Part II of the African Charter. 31 See Article 45(1)(b) of the African Charter. 32 Article 45(3) of the African Charter. 33 Inter-state communications are complaints submitted to the African Commission by any African State being a party to the African Charter based on ‘good reason to believe that another state party to this Charter has violated the provisions of the Charter’. Such communications have been quite rare in the African human rights system. 200 University of Zimbabwe Law Journal 2018 ever lodged with the African Commission against Zimbabwe, quite a number of individual communications have been filed with the continental human rights body, many of which have gone as far as the merits stage. Therefore, the following is a discussion on these individual communications with a view to assessing the extent of implementation in respect of those communications in which violation(s) of the African Charter were confirmed.

Courson v Zimbabwe The premise of this communication was to interrogate the legal status of consensual sexual conduct of same sex parties as between each other in private in view of the criminalisation of such conduct as well as public declarations by the political leadership denouncing such practices in society.34 The complainant invited the African Commission, by invoking article 60 of the African Charter, to draw inspiration from related jurisprudence of the United Nations Human Rights Committee (herein UNHRC).35 However, the complainant withdrew the communication whereupon the African Commission accordingly closed the file.

Zimbabwe Human Rights NGO Forum v Zimbabwe In this communication, the African Commission was grappling with two issues, namely, whether an amnesty for perpetrators of human rights violations is in violation of the African Charter by virtue of the Clemency Order No. 1 of 2000,36 and whether

34 (2000) AHRLR 335 (ACHPR 1995). 35 The complainant attached a copy of the decision of the UNHRC in Toonen v AustraliaCommunication No. 488/1992, U.N. Doc CCPR/C/ 50/D/488/1992 (1994). In this case the UNHRC found that the criminalisation of homosexuality in Tasmania infringed upon Toonen’s right to privacy as protected by article 17(1) of the International Covenant on Civil and Political Rights (herein ICCPR). 36 Clemency Order No.1 of 2000, published on 6 October 2000 (General Notice 457A of 2000).The Clemency Order granted pardon to every person liable to criminal prosecution for any politically motivated crime committed between 1 January 2000 and July 2000. The Order also granted a remission of the whole or remainder of the period of imprisonment to every person convicted of any politically motivated crime committed during the stated period. UZLJ Zimbabwe Compliance on Decisions & Judgements201 the state (Zimbabwe) was responsible for the acts of non- state actors.37 The communication was submitted in the aftermath of a bloody referendum and general election that took place in 2000. The two processes were characterised, so the communication alleged, by massive politically motivated violence, abductions, extrajudicial executions and detentions. In the view of the complainant, ‘ZANU (PF) supporters engaged in a systematic campaign of intimidation aimed at crushing support for opposition parties. It is alleged that violence was deployed by the party as a systematic political strategy in the run up to the Parliamentary elections’.38 Having arrived at a finding that the amnesty for certain crimes committed at polling time in 2002 had the effect of depriving victims thereof of remedies under national law (article 7(1) right to access to justice), and that the complainant had failed to link the acts of non-state actors to state indifference and or collusion, the African Commission went on to make two recommendations; one substantive and the other related to implementation. Specifically addressing the first issue, the African Commission recommended Zimbabwe ‘to establish a Commission of Inquiry to investigate the causes of the violence which took place from February – June 2000 and bring those responsible for the violence to justice, and identify victims of the violence in order to provide them with just and adequate compensation’.39 As the implementation mechanism, it was recommended that the respondent State ought ‘to report to the African Commission on the implementation of this recommendation during the presentation of its next periodic report’.40 At the time of writing this paper, it is exactly eleven years since the communication was filed and seven years of the decision of the African Commission and there is no evidence whatsoever of any form of compliance by Zimbabwe with the recommendation to establish a commission of inquiry into the

37 Communication No. 245/2002. 38 See Para. 3 of the decision. 39 See Para. 215 of the decision. 40 As above. This recommendation represents a rather soft mechanism adopted by the African Commission for purposes of enforcing compliance by states with its decisions. 202 University of Zimbabwe Law Journal 2018 violence that took place in 2000 in a bid to hold perpetrators such violence accountable. In confirmation of such dereliction of duty to implement the recommendation at least in good faith, Zimbabwe, having fallen behind its reporting obligation, submitted a consolidated state report (covering a period of ten years thus combining 6th, 7th, 8th, 9th and 10th periodic reports) on 20th October 2006. This report is so crucial to the current discussion in that Zimbabwe ought to have reported on the measures taken to implement the substantive recommendation in the Zimbabwe Human Rights NGO Forum communication. Nevertheless, the State did not bother to comply with both recommendations, that is to say, the State neither established a commission of inquiry nor appraised the African Commission on the measures (of lack of them) adopted during the presentation of its last report. Accordingly, since that country has already gone past a relatively peaceful referendum,41 and general election, the non-compliance in this communication falls in the category of ‘no compliance’.

Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe The complainants stated that the Access to Information and Protection of Privacy Act (AIPPA), enacted in 2002 by the Respondent State required, under section 66 of AIPPA read together with section 72, that “mass media services” be registered with the Media and Information Commission (MIC) before commencing operations.42 The Associated Newspapers of Zimbabwe (herein ANZ) filed an application challenging the constitutionality of the provisions requiring it to register

41 Zimbabwe held a referendum on 16th March 2013 to determine whether a new draft constitution prepared predominantly by way of a political process would be accepted by the general public. The Zimbabwe Electoral Commission declared a few days after the polls that the draft constitution had been overwhelmingly accepted by a 94.5% vote. However, it ought to be noted that in practice, individuals and or institutions that were desirous to campaign for a ‘No’ vote were targeted with arrest and threatened with prosecution. See The Election Resource Centre Zimbabwe Constitutional Referendum 2013 interim report. 42 Communication No. 284/2003. UZLJ Zimbabwe Compliance on Decisions & Judgements203 with the MIC. ANZ therefore declined to register until the question of the constitutionality of the AIPPA provisions it was challenging had been determined by the Supreme Court in a matter that was already pending. The Supreme Court declined to determine the constitutionality of the law unless ANZ had purged itself of failure to comply with the law in question arguing that laws are presumed constitutional unless the contrary is proven.43 On approaching the Commission, the complainants alleged violation of articles 3 (equal protection of the law), article 7 (right to a fair hearing), article 9.2 (freedom of expression), article 14 and 15 of the Charter. Taking into account the fact that the complainants had already approached the Supreme Court, the highest judicial authority in the country, taken conjunctively with other factors under article 56 of the Charter, they had made a good case for the admissibility of the communication. The communication was accordingly rendered admissible notwithstanding the spirited opposition by the State.44 As regards the merits, among others, the main issue the Commission had to grapple with was whether refusal by the Supreme Court to deal with the application citing the dirty hands doctrine was in fact a violation of any right and or freedom as provided for under the Charter. A related issue of equal importance was whether the confiscation of complaints’ equipment by the Police in the aftermath of the Supreme Court decision was a violation of any provisions of the Charter. In its decision on the merits, the Commission did not find a violation of articles 3 and 7 of Charter. It argued that by virtue of the case being the first of its kind to be dealt with by the Supreme Court, there is, therefore, no evidence that the complainants had been treated differently.45 Further, the Commission further argued that: Thus, by pronouncing on the preliminary issue raised by the Respondent State on the question brought by

43 Associated Newspapers of Zimbabwe (Pvt) Ltd v e Minister of State for Information and Publicity & Ors 2004 (1) ZLR 538 (S) 44 Paragraph 121 of the Decision. 45 See paragraph 159 of the Decision. 204 University of Zimbabwe Law Journal 2018

the Complainants, the Supreme Court in effect heard the ‘cause’ of the Complainants. Besides, the Supreme Court did not close its doors on the Complainants, it simply asked the latter to go and register and come back to it for the matter to be heard on the merits. It can therefore not be said that the Respondent State has violated the Complainants’ rights under Article 7.46 The only violation established in the communication and of relevance to the current discussion was in respect of articles 9 (freedom of expression), 14 (right to property) and 15 (right to work). It was argued and decided that the seizure of complainants’ equipment by the Police without a court order amounted to unlawful actions that led to financial loss.47 Accordingly, the Commission recommended that the State ‘provides adequate compensation to the Complainants for the loss incurred as a result of this violation’.48 It is not in dispute that efforts were deployed to seek recovery of the seized equipment, reinstatement of the publisher’s right to access the cordoned premises as well as clearance to continue operating pending the outcome of the licensing process.49 There seems to be no evidence to show that any

46 See paragraph 174 of the Decision. 47 See paragraph 178 of the Decision. It should also be noted that during the 36th Session of the Commission, provisional measures were adopted that sought to require the State to return the equipment so seized on 16th September 2003 without a court order. Meanwhile on 18th September 2003, the Harare High Court ruled that the government return the seized equipment since the Supreme Court had not ruled that the ANZ was operating outside of the law. In any event, having lodged an application for registration on the 15th of September 2003 was from that date operating within the law. On the 19th of September 2003 the ANZ application was declined whereupon the Police refused either to vacate the ANZ premises or to return the confiscated equipment. 48 See paragraph 181 of the Decision. 49 In Associated Newspapers of Zimbabwe (Pvt) Ltd versus Chief Superintendent Madzingo and the Commissioner of Police HH-157- 03, the applicant sought a court order for the return of seized equipment and to continue operating pending the outcome of the application for licensing filed with the relevant authorities. The relief sought was granted although operations could not continue on account of the negative outcome in the application for registration. UZLJ Zimbabwe Compliance on Decisions & Judgements205 attempt was ever made at the national level to seek recovery of financial loss suffered as a result of the unlawful seizure of complainant’s equipment by the State. The complainant only made such attempt before the Commission, which relief was granted by the Commission. However, no such payment of compensation ever took place at national level. It does not appear that sufficient effort was employed to pursue payment of same in the aftermath of the Commission’s decision and recommendation although access to premises was eventually allowed.50 Nonetheless, the decision remains good for enforcement although it might not escape the procedural trappings such as prescription. By and large, the Commission’s decision still remains to be complied with.

Scanlen & Holderness v Zimbabwe The complainants in this communication were in fact The Independent Journalists Associations, the Zimbabwe Lawyers for Human Rights and the Media Institute of Southern Africa.51 Their contention was simple, namely, that Sections 79(1) and 80(1) of the Access to Information and Protection of Privacy Act [Chapter 10:27] (AIPPA), were inconsistent with Article 9 of the African Charter. The complainant’s concerns were summarised by the Commission as follows:52 According to the Complainants, compulsory accreditation of journalists, irrespective of the quality of the accrediting agency, interferes with freedom of expression. They state that accreditation fees provided for under the law are an additional restriction on freedom of expression. They allege that compulsory accreditation of journalists by a Commission which lacks independence interferes with professional independence and the autonomy of the journalism profession. The Complainants submit further that, the MIC is not democratically constituted. Its constitution and control is not consistent with democratic values.

50 This is a common attitude among successful litigants before international bodies. Litigants often make no effort to pursue the implementation of recommendation made at that level and expect States to comply with such decisions. This rarely happens unless the international body itself invokes its follow-up competence. 51 Communication No.297/2005. 52 See paragraph 6 of the Decision. 206 University of Zimbabwe Law Journal 2018

The complainants further argued that “that self-regulation is a central feature of an independent profession and that the AIPPA is inherently inimical to freedom of expression and has no justification in a democratic society.”53 Having found the communication admissible and going on to deal with the merits, the Commission found a violation of Article 9 of the African Charter and recommended that Sections 79 and 80 of AIPPA be repealed and generally align AIPPA with provisions of Article 9. Such was a clear recommendation that needed no further interpretation for a better understanding of what the respondent State was expected to do in compliance therewith. In view of the fact that the Scanlen & Holderness decision was adopted by the Commission in 2009 having been filed in 2005, it is important to note AIPPA was partly amended in 2007 by virtue of Act 20 of 2007. Section 79 was partly amended but not in a way that addressed the complainants’ concerns. The parameters of the amendments by Act 20 of 2007 accordingly dispensed with any possibility that such were motivated by the need to comply with the recommendation of the Commission.

Gabriel Shumba v Zimbabwe The communication was filed in 2004 by the complainant who had legal representation.54 It alleged a violation of articles 4 (integrity of the person), 5 (torture), 6 (liberty and security of the person), 7 (fair trial), 10 (peaceful assembly) and 14 (right to property). In a nutshell, the factual background was that complainant was arbitrarily arrested by the police and denied legal assistance, his dignity and integrity of his person was violated as a result of mistreatment while in custody. He also had his personal belongings such as mobile phone confiscated by the authorities as the time of arrest. From the place of his exile, he challenged the State’s conduct as inconsistent with the provisions of the African Charter. The communication was dealt with on the merits. In its decision, the Commission only found violation of Article 5

53 Paragraph 7 of the Decision. 54 Communication No. 288/2004. UZLJ Zimbabwe Compliance on Decisions & Judgements207

(torture) and dismissed the rest of the allegations. It accordingly made relevant recommendations, namely, that the complainant be paid adequate compensation for the trauma suffered, that an inquiry and investigation be launched to bring to justice the perpetrators of torture, and that the State reports within six months on the measures taken to implement the recommendations.55 It is a relevant fact that the decision in the Shumba communication was only adopted in May 2012 – merely over a year as at the time of writing. There is no evidence supporting the view that any of the three recommendations have been complied with. This may be also as a result of the fact that the complainant is not ordinarily resident in Zimbabwe.56

Zimbabwe Lawyers for Human Rights (On behalf of Gabriel Shumba, Kumbirai Tasuwa Muchemwa, Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero) v Zimbabwe Of late, the African Commission had an occasion to make provisional measures against Zimbabwe. On 12 December 2012, the Applicant, representing some individuals living outside of the country, approached the African Commission seeking recognition of their right to participate in the public affairs of their country by exercising the right to vote in referenda and general elections. During its 13th Extraordinary Session which was held in Banjul, the African Commission found a “prima facie violation of the Charter” upon learning that Zimbabweans living in the Diaspora are unable to “… participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”57 On consideration of the complaint, the African Commission promptly established a ‘prima facie’ violation of the African

55 See paragraph 194 of the Decision. 56 The author had a telephone interview with the complainant in order to establish whether any measures have been taken by him to follow- up or by the respondent State on the compliance the Commission’s recommendations. 57 Article 13(1) of the African Charter. This provision implies the right to vote and or the right to stand as a candidate for public office. 208 University of Zimbabwe Law Journal 2018

Charter and issued provisional measures. The African Commission is empowered to issue provisional measures.58 It is provided as follows in respect of the competence to issue provisional measures: At any time after the receipt of a Communication and before a determination on the merits, the Commission may, on its initiative or at the request of a party to the Communication, request that the State concerned adopt Provisional Measures to prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands. (own emphasis). In practical terms, the provisional measures against Zimbabwe were meant to ‘prevent irreparable harm to the victims’ in that Zimbabwe was just about to hold a national referendum on the new constitution two weeks from the date on which provisional measures were rendered. Furthermore, the imminent harmonised general elections were eventually held on 31st July 2014. Both these processes were immensely important for the applicants to exercise their right to vote in adopting the most superior law of the land as well as choosing preferred representatives. The imminence of the two electoral processes buttressed the irreparable nature of the harm due to non-participation. The extent of compliance with provisional measures in question deserves no study. Zimbabweans resident outside of that country did not take part both in the 2013 referendum and general elections. The government just did not react to the issue of provisional measures.59 Although decisions of the

58 Rule 98(1) of the Rules of Procedure of the African Commission on Human and Peoples’ Rights. 59 It must be noted that the Constitutional Court of Zimbabwe had already ruled that Zimbabweans in the Diaspora had the right to vote but the state is unable to mobilise the required funds to facilitate the exercise of that important right. However, critics of the government especially ZANU-PF the ruling party, maintain that the basis for denial of the right to vote is not the issue of cost, rather it is fear that majority of over three million Zimbabweans who fled the country for better economic opportunities would most likely vote for the opposition political parties and candidates. Further, the flip argument was that it was impracticable for Zimbabwe to adopt measures necessary to implement the provisional measures taking into account the UZLJ Zimbabwe Compliance on Decisions & Judgements209

African Commission are not binding, they have a moral authority that induces enforcement. It appears the stakes were just too high for the government to comply with the provisional measures. On its side, it would seem there was little time left for government to put in place measures to give effect to the decision in question before the landmark electoral processes took place. Nonetheless, the legitimate expectation of compliance with international decisions was breached as provisional measures went unimplemented maintaining Zimbabwe’s hundred percent non-compliance record in respect of decisions of the African Commission.

Compliance with recommendations of the UN Human Rights Council Based at the UN Office in Geneva, the United Nations Human Rights Council (herein Human Rights Council) is a 47 member inter-governmental body within the UN system.60 Membership is through election by fellow member states of the Un General Assembly by way of secret ballot. It is responsible, among other things, for strengthening the promotion and protection of human rights around the world.61 The UN Human Rights Council is competent to address situations of human rights violations and make recommendations once it has established the violations. It covers all thematic human rights issues and situations that require its attention throughout the year. The UN Human Rights Council executes its mandate through a number of its mechanisms and procedures contained in the

imminence of the referendum and general elections. As others argued the relief came a bit too late for realistic implementation. One has to wait to see if same will be implemented in respect of forthcoming general elections. See Bukaibenyu v Chairman, ZEC & Ors CC-12-17. A further case on the Diaspora vote was brought in 2018 before the Constitutional Court. The judgment in this case, which is Shumba & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ- 4-18 followed the reasoning in the earlier case and rejected the argument that the Constitution required that persons living outside the country were entitled to vote outside the country. 60 For more information on the UN Human Rights Council, see: http:// www.ohchr.org/EN/HRBodies/HRC/Pages/AboutCouncil.aspx (accessed on 11 February 2015). 61 Resolution 60/251 adopted by the General Assembly on 15 March 2006. 210 University of Zimbabwe Law Journal 2018

‘institution building package’ adopted in 2007, a year after its inaugural session. The Universal Periodic Review (herein UPR) mechanism is one such tentacle focussed on assessing the human rights situations in all UN Member States.62 It is the UPR that is of sufficient relevance to this discussion. General Assembly Resolution 60/251 provides as follows in respect of the UPR especially that it is:63 based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies… The nuts and bolts of the UPR mechanism are embodied in the United Nations Human Rights Council: Institution Building package (herein Institution-Building Package), which is a framework by the Council to operationalise itself in the new role after taking over from the UN Commission for Human Rights.64 The Institution-Building package provides detail on the objectives, legal basis, procedure, and expected outcomes of this process among other things. Zimbabwe submitted to the UPR mechanism or process by submitting a national report in October 2010. This national report was Zimbabwe’s inaugural report. In keeping with the spirit and purpose of the UPR framework, the report was a

62 The other mechanisms of the UN Human Rights Council include Advisory Committee regarded as the Council’s source of expertise and advice on thematic human rights issues; the Complaint Procedure which allows individuals and organizations to lodge human rights violations before the Council, and the UN Special Procedures consisting of special rapporteurs, special representatives, independent experts and working groups that monitor, examine, advise and publicly report on thematic issues or human rights situations in specific countries 63 Paragraph 5(e) of Resolution 60/251. 64 The United Nations Human Rights Council: Institution Building is contained as an Annexure to UN Human Rights Council Resolution 5/ 1 - Institution-building of the United Nations Human Rights Council. UZLJ Zimbabwe Compliance on Decisions & Judgements211 summary of the measures taken by the government to give effect to human rights obligations subscribed under different international human rights instruments and humanitarian law.65 Thereafter, the outcome of the review process produced 177 recommendations. These recommendations covered a wide spectrum of issues and thematic areas. It is on record that Zimbabwe accepted 147 of these recommendations and rejected the rest perhaps with a bit of resentment as proof of the chilling effect of peer review. At the time of writing, Zimbabwe had adopted a National Plan of Action to map stakeholders, among other things, who could take part in the implementation of the accepted recommendations. This was a multi-stakeholder process involving state and non-state actors pooling resources together. The inclusive approach by government received accolades for its participatory nature to the human rights agenda in the country. In keeping with the imperatives of the UPR process, in July 2014, Zimbabwe submitted the Mid-Term Report in preparation of the second round of review at the expiration of the four-year review cycle.66 It is important to comment on Zimbabwe’s rejection of so many recommendations that came out of the UPR process. Paragraph 32 of the Institution-Building Package speaks on the possibility of the reviewed Member State supporting certain recommendations and possibly rejecting others.67 Accepting recommendations on the one hand and rejecting others on the other presents Zimbabwe in a balanced scenario. On account of this zero percent record of compliance with decisions of the African Commission, the UPR process saw Zimbabwe publicly accepting to implement some

65 Paragraph 1A of the Institution-building package provides for basis of review to include The Charter of the United Nations; the Universal Declaration of Human Rights; human rights instruments to which a State is party; applicable international humanitarian law. 66 In terms of Paragraph 14 of the Institution-building Package, the period for initial review is four years. 67 ‘Recommendations that enjoy the support of the State concerned will be identified as such. Other recommendations, together with the comments of the State concerned thereon, will be noted. Both will be included in the outcome report to be adopted by the Council’. 212 University of Zimbabwe Law Journal 2018 recommendations from its peers. It can only be hoped that this is the beginning of a new compliance dispensation in terms of the government’s attitude towards adverse decisions by international human rights supervisory institutions.

COMPLIANCE WITH BINDING DECISIONS OF INTERNATIONAL TRIBUNALS The Southern Africa Development Community Tribunal (SADC Tribunal) Established in 1992, the SADC Tribunal is the judicial institution of the SADC in terms of Article 16 of the SADC Treaty. A Protocol on the SADC Tribunal and Rules of Procedure Thereof was adopted to operationalize this Tribunal.68 Among other things, the SADC Tribunal was established to interpret community law. Its decisions are binding in terms of Article 32(1) of the Protocol of the SADC Tribunal. Further, decisions or judgments of the SADC Tribunal are enforceable in SADC member states by utilising the procedure often adopted in implanting foreign judgments.69 The SADC Tribunal has presided over a number of disputes by individuals against selected member states as well as SADC itself.70 Zimbabwe is one of the member states that appeared before this Tribunal defending herself in a number of proceedings. Two of them, namely, Gondo & Ors v Zimbabwe71 and Mike Campbell (Pvt) Limited & Ors v Zimbabwe72 will be discussed in this article. In both cases, the SADC Tribunal by and large found against Zimbabwe with implications that respective court orders ought to be executed in good faith.

68 It must be mentioned that following a legislative review of the SADC Tribunal, a new Protocol on this institution was adopted by the SADC Summit in August 2014 in Victoria Falls, Zimbabwe. Accordingly, once this new protocol comes into legal force, there could be changes regarding the enforcement of decisions of this Tribunal among other things. 69 See Article 32(5) of the Protocol on the SADC Tribunal. 70 Clement Kanyama v SADC Secretariat SADC (T) 05/2009. 71 Gondo & Ors v Zimbabwe SADC (T) 05/2008 72 SADC Tribunal, Case No. ADC (T) 02/2007; SADC (T) 02/08, SADC (T) 03/2008, and SADC (T) 06/2008. UZLJ Zimbabwe Compliance on Decisions & Judgements213

Gondo & Ors v Zimbabwe The applicants in this case were victims of violence perpetrated by national security agents, namely, the Zimbabwe Republic Police and Zimbabwe National Army. The applicants successfully sought remedies before national courts. The applicants were awarded damages for the violence suffered. However, the respondent state failed to comply with orders of national courts. The applicants were unable to enforce the judgment because section 5(2) of the State Liability Act [Chapter 8:14] prevented the execution of judgments against the respondent’s property. Before the SADC Tribunal, the applicants contented that section 5(2) of the State Liabilities Act was incompatible with the Zimbabwe’s obligation under Articles 4(c) and 6(1) of the SADC Treaty on account of the fact that the said provision shielded the respondent from providing effective remedies to the applicants. Such failure by the respondent state was contended to amount to a breach of the principles of human rights provided for in Articles 4(c) and 6(1) of the SADC Treaty. The Tribunal recomputed the amounts of money awarded by Zimbabwe national courts as damages. The computation was to factor in the hyperinflationary environment and cushion the applicants from the vices of delayed performance. Upon considering the dispute on its merits, the SADC Tribunal held that section 5(2) of the State Liabilities Act also contravened the principle of equality and equal protection as it prevented the law from been equally enforced and did not accord equal protection to all parties. According to the Tribunal, the provision unfairly differentiated between judgment debtors. The state as a debtor was more protected by the law yet the rest of them in the form of individuals and juristic persons, enjoy no similar privileges. In this regard, the Tribunal found that section 5(2) of the Act was in breach of the respondents’ obligation under Articles 4(c) and 6(1) of the SADC Treaty, and that granting the state immunity from the execution of judgment debt had an adverse effect on the rule of law. As regards compliance with this judgment, the respondent state did not implement any of the two operative orders of 214 University of Zimbabwe Law Journal 2018 the judgment.73 Even if the State had paid, those monetary payments would not have been noticeable to avoid flooding of cases. However, research pursuant to this publication revealed no efforts to align the State Liabilities Act with the constitution or Zimbabwe’s international law obligations. There is currently a legislative review and reform underway designed to align legislation with the 2013 constitution. The process is reported as not transparent to the extent that interested stakeholders are unaware which laws have been earmarked for legislative reform. On its part, the impugned law is still part of the law of Zimbabwe and judgment creditors still cannot execute public property in satisfaction of judgment debts.

Mike Campbell (Pvt) Limited v Republic of Zimbabwe74 The Applicants in this widely publicised case challenged the agrarian reform programme carried out by the Government of Zimbabwe as unlawful to the extent that it was racially grounded with no prospects of compensation. The Government of Zimbabwe, by way of Constitution of Zimbabwe Amendment (No. 17) Act (herein Amendment No.17) made a decision to expropriate privately owned land, including agricultural land without compensation. The Amendment No. 17 also ousted the jurisdiction of national courts from presiding over land acquisition-related disputes and left the Applicants without an effective remedy at the national level. The Government of Zimbabwe raised a preliminary objection to the Application on the basis that the Tribunal lacked jurisdiction as the Applicants failed to exhaust local remedies and that the Tribunal had no mandate to entertain human rights matters on account of the fact the SADC did not have a protocol on human rights. The SADC Tribunal held that it had jurisdiction to hear the matter and the Applicants had exhausted local remedies since national law provided no domestic remedy more particularly because the constitutional amendment 17 ousted the jurisdiction of the domestic courts over land disputes.[ The

73 The representatives of the applicants confirmed that their clients did not receive any payments in respect of the judgment in question. 74 SADC-T 001/2008. UZLJ Zimbabwe Compliance on Decisions & Judgements215

SADC Tribunal further held that it did not need a protocol on human rights to entertain human rights matters as Article 21 (b) of the Protocol on the SADC Tribunal provided the power to develop its own jurisprudence, and instructs the Tribunal to do so[“having regard to applicable treaties, general principles and rules of public international law”[which are recognised sources of law for the SADC Tribunal. Put differently, the said Article settled the question whether the SADC Tribunal could look elsewhere for legal bases where it appeared that the SADC Treaty provided none.[ Furthermore, the SADC Tribunal held that Article 4 (c) of the SADC Treaty was an express provision in that regard, because it required the SADC Members States to act in accordance with human rights principles and in terms of Article 6 (1) of the Treaty, “to refrain from taking any measures likely to jeopardize the sustenance of its principles, the achievement of its objectives and the implementation of the provisions of the Treaty”. As regards the allegations of racial discrimination, by a majority decisions, the SADC Tribunal found that the Respondent substantively discriminated against the applicants, although Amendment 17 did not mention race, the intention of the legislation was to target white farmers, in violation of Article 6 (2) of the SADC Treaty.[ The Tribunal held that the all the Applicants were entitled to fair compensation for their farms. It also ordered the Government of Zimbabwe to pay fair compensation to the three (3) Applicants whose farms had already been expropriated. The SADC Tribunal declared the Government of Zimbabwe to be in violation of Article 4 (c), and (6) (2) of the SADC Treaty and to take all necessary measures to protect the possession, occupation and ownership of all other Applicants. The enforcement of the Campbell case is one that later became riddled with political controversy and legal dynamics that were never anticipated at the time it was rendered. It is now common cause that the Government of Zimbabwe made public statements denouncing and declining to comply with the decision. The main argument raised by politicians was that the Protocol on the SADC Tribunal never came into force in 216 University of Zimbabwe Law Journal 2018 respect of the Government of Zimbabwe as she did not ratify it. This position was however, disputed and ruled against by the Zimbabwean High Court in the case of Gramara (Pvt) Limited & Ors v Zimbabwe & Ors.75 The Protocol on the SADC Tribunal was declared as binding on Zimbabwe. The Government of Zimbabwe’s refusal to implement the Campbell decision was so flagrant that it was referred back to the SADC Tribunal by the applicants.76 The SADC Tribunal presided over the referral in the case of Louis Karel Fick & Ors v Zimbabwe. In that case, the SADC Tribunal held that Zimbabwe had failed to comply with the order of the Tribunal in the Campbell case. In such circumstances the only recourse was for the SADC Tribunal to refer the incidence of non- compliance to the SADC Summit ‘for appropriate action’ in terms of article 35 of the SADC treaty. As expected, the SADC Summit enforcement option did not yield any results. Rather than focussing on enforcing compliance, the SADC Summit embarked on a campaign to discredit the SADC Tribunal and its decisions. On referral of Zimbabwe’s non-compliance with the Campbell decision, the SADC supreme body took a number of decisions inconsistent with engendering compliance. First, the Summit did not do enough to enforce compliance with judicial decisions. Second, it adopted the SADC Ministers of Justice and Attorney-Generals and the Foreign Affairs Ministers’ recommendation to carry out a legislative review of the Protocol on the SADC Tribunal. Third, during the 2012 summit in Mozambique, the SADC Summit took a decision to suspend the SADC Tribunal, terminated judges’ contracts and imposed a moratorium on receiving new cases. Fourth, and very ironically,77 the SADC Summit adopted a new protocol on the

75 Unreported Judgment HH-169-2009. 76 A referral to the Summit is provided for in article 32(5) of the Tribunal Protocol which provides that “[i]f the Tribunal establishes the existence of [any failure by a State to comply with a decision of the Tribunal], it shall report its finding to the Summit for the latter to take appropriate action.” 77 The development of the adoption of a new protocol on the SADC Tribunal was ironically in the sense of it taking place in Zimbabwe. The legislative process leading to the adoption is believed to have UZLJ Zimbabwe Compliance on Decisions & Judgements217

SADC Tribunal in Zimbabwe during a session in August 2014. On account of SADC Summit inability to enforce compliance by taking appropriate action in terms of the SADC Treaty, the litigants in the Campbell case took on a campaign to seek enforcement of the decision one way or another. The efforts by this group of people have seen attempts to have the decision enforced in at least two countries. By and large, the Campbell decision judgment creditors embarked on some degree of creative litigation in order to avoid enforcement barriers presented by both SADC law and that of its member states. In 2009, some of the farmers who were part of the applicants in the Campbell case approached the Harare High Court seeking recognition of that decision for purposes of enforcement in the Gramara case. The legal basis was grounded in the provisions of article 32(1) of Protocol on the SADC Tribunal. In essence, the applicants sought to invoke Zimbabwean domestic law on recognition and registration of foreign judgments. While it appears the Harare High Court creatively found legal basis to accept the SADC Tribunal decision as a foreign judgment, it declined to register it on the grounds of public policy, namely, that enforcing the decision would be contrary to the prevailing Supreme Court of Zimbabwe judgment in Mike Campbell (Pvt) Ltd & Another v Minister of National Security Responsible for Land, Land Reform and Resettlement & Another.78 The Supreme had held that the agrarian reform was in terms of the constitution of Zimbabwe and not racially discriminatory as held by the SADC Tribunal. No appeal was filed against the Harare High Court decision. Another band of applicants in the Campbell case also approached the Gauteng High Court of South Africa seeking the recognition and registration of the costs order of the decision rendered by the SADC Tribunal following referral for

been incepted at the instance of Zimbabwe as she failed to comply with the Tribunal’s ruling in the Campbell case. Another aspect of the Victoria Falls session is that Zimbabwe assumed the SADC Chair seat. 78 S-49-07. 218 University of Zimbabwe Law Journal 2018 non-compliance.79 The Gauteng High Court registered the decision in Fick and Others v Government of the Republic of Zimbabwe. Zimbabwe did not participate in those proceedings until it was nudged to do so when the applicants attached Zimbabwean property in South Africa. Zimbabwe then appealed unsuccessfully to the Supreme Court of South Africa through to the Constitutional Court of South Africa in Government of Zimbabwe v Fick & Ors.80 Zimbabwe’s main arguments in prosecuting the appeal were that as a sovereign state it enjoyed immunity in domestic courts of South Africa and that in any event the SADC Tribunal lacked international jurisdiction over the dispute hence its decision should not be registered for enforcement. Granting Zimbabwe leave to appeal on the basis of interests of justice, the Constitutional Court of South Africa rejected the other grounds of appeal and developed common law to recognise the SADC Tribunal as a foreign court and enforced the costs order.81 However, it remains unclear as to whether Zimbabwe complied with the costs order by paying for these costs it being now two years since the decision of the Constitutional Court of South Africa.

THE EFFECT OF NON-COMPLIANCE WITH COURT JUDGMENTS Non-compliance with judgments of courts of law, whether by the state or individuals, is one of the indicators of societies where rule of law, observance of human rights and democracy are impeded. A government that complies with judgments of its own courts against both strong and small men (people) is one that gives credence to the notion that a government draws authority to rule from the people. Compliance with court decisions buttresses the principle of equality before the law and that no one including the state, is above but is subject to the law.

79 Fick and Others v Government of the Republic of Zimbabwe, Case No 77881/2009, North Gauteng High Court, Pretoria, 25 February 2010, Unreported Judgment. 80 Case CCT-101-12 [2013] ZACC 22. 81 See paragraphs 71 – 74 of the Judgment. UZLJ Zimbabwe Compliance on Decisions & Judgements219

Conversely, non-compliance with judgments directly impacts on the right to access to justice, especially the effectiveness thereof, and specific aspects of the right to be heard and right to a fair hearing. In general terms, access to justice requires that barriers of any kind be removed from the path of those who wish to approach courts of law to assert their rights. The Inter-American Court on Human Rights held as follows:82 The absence of an effective remedy to violations of the rights recognized by the Convention is itself a violation of the Convention by the State Party in which the remedy is lacking. In that sense, it should be emphasized that, for such a remedy to exist, it is not sufficient that it be provided for by the Constitution or by law or that it be formally recognized, but rather it must be truly effective in establishing whether there has been a violation of human rights and in providing redress. A remedy which proves illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case, cannot be considered effective. That could be the case, for example, when practice has shown its ineffectiveness: when the judicial power lacks the necessary independence to render impartial decisions or the means to carry out its judgments; or in any other situation that constitutes a denial of justice, as when there is an unjustified delay in the decision; or when, for any reason, the alleged victim is denied access to a judicial remedy. The Inter-American Court identified the inability of a judicial body to ‘carry out its judgment’ as clear evidence of the non- existence of an effective remedy. In other words, where the executive declines to comply with court decisions, courts are invariably left with no means to enforce compliance. Once that state of affairs obtains, then the effectiveness of remedies is seriously undermined and so is the legitimacy, dignity and authority of the court that rendered the decision in question or courts in general.

82 Inter-American Court on Human Rights, Advisory Opinion OC-9-87 of October, 1987, Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8 of the American Convention on Human Rights) para 41. 220 University of Zimbabwe Law Journal 2018

In Bissangou v Republic of Congo,83 the African Commission was more forthright in pronouncing the effect of state refusal to pay a judgment debt: ...Article 7 includes the right to the execution of judgment. It would therefore be inconceivable for this article to grant the right for an individual to bring an appeal before all the national courts in relation to any act violating the fundamental rights without guaranteeing the execution of judicial rulings... as a result, the execution of a final judgment passed by a tribunal or legal court should be considered as an integral part of the right to be heard which is protected in Article 7. The African Commission remains conscious of the fact that without a system of effective execution, other forms of private justice can spring up and have negative consequences on the confidence and credibility of the public in the justice system.84 Over and above the effect on access to justice, the African Commission concluded in the Bissangou case that ‘... execution of a final judgment passed by a tribunal or legal court should be considered as an integral part of the right to be heard which is protected in Article 7’. In other words, non- compliance affronts the right to be heard. To the extent that judgments of tribunals or courts are not complied with, the right of every person to have their cause heard by an independent and impartial tribunal established by law is violated as non-compliance takes away the rationale of adjudication. One cannot be said to have been heard in the context of the right to be heard unless the judicial pronouncement in their favour is given effect.

83 Bissangou v Republic of Congo (2006) AHRLR 80 (ACHPR 2006). See also G Musila ‘The Right to an Effective Remedy under the African Charter on Human and Peoples’ Rights’ 6 (2006) AHRLJ 442, citing G Naldi ‘Future trends in human rights in Africa: The increased role of the OAU?’ in M Evans & R Murray (n 5 above) 1, citing KO Kufuor ‘Safeguarding human rights: A critique of the African Commission on Human and Peoples’ Rights’ (1993) 18 Africa Development 18 (1993) 65 66-69 and W Benedek ‘The African Charter and the Commission on Human and Peoples’ Rights: How to make it more effective’ (1993) 11 Netherlands Quarterly of Human Rights 25 31. 84 Bissangou, para 75. See also European Court of Human Rights decision in Hornsby v Greece Application No. 18357/91. UZLJ Zimbabwe Compliance on Decisions & Judgements221

Furthermore, non-compliance with court decisions undermines the independence of the rendering tribunal thereby adding another layer of violation of the right to be heard. In many a legal jurisdictions, non-compliance with a court decision by a person or entity that was a party to the concluded legal proceedings is contemptuous conduct that is met with a criminal sanction.85 The independence of courts is not only constitutionally protected, but also aided by criminalising contemptuous conduct for democracy and rule of law to thrive. An argument must be put forward, which is that a state that fails to comply with decisions of an international tribunal must be met with punishment for contempt of court. On practical grounds, the modalities of holding states in contempt in the traditional meaning of the concept would be difficult. This is so more particularly because at national level, states have protected themselves from judicial attachment of property in execution of court judgments against them by claiming that such property belongs to the public. Accordingly, states such as Zimbabwe have enacted and maintained legislation clearly designed to void enforced compliance with judgments of national courts.86 While holding certain government officials in contempt for failing to act in compliance with a court order has been tolerated in other jurisdictions, that approach never presented itself as a permanent solution hence in South Africa, the Constitutional Court of that country declared as unconstitutional section 3 of the State Liabilities Act No. 14 of 2011 in the case of Nyathi

85 Contempt of court is invariably a criminal charge that is available in legal systems where courts exist. It is deemed to be a very important charge in that it serves to preserve and protect the authority and integrity of courts in a modern democracy. To that end, contempt of court proceedings are regarded as sui generis proceedings designed to effectively strike the source of contempt with speed so that the public does not lose trust and respect of courts of law. If they do, so will they behave in relation to the laws of the state. 86 Zimbabwe maintains the State Liabilities Act, which in Section 6 thereof, a judgment creditor cannot attach in execution of judgment, property that belongs to the state. Efforts are underway to repeal this provision in line with the 2013 Constitution of Zimbabwe that is aggressive on access to justice. 222 University of Zimbabwe Law Journal 2018 v Member of the Executive Council for the Department of Health Gauteng and Another.87 In order to preserve the integrity and authority of international tribunals by enforcing compliance with their judgments, international human rights mechanisms have anticipated this problem by establishing institutions and or procedures to deal with cases of non-compliance by imposing what are termed here as compliance incentives. These are sanctions or other forms of actions taken by the compliance supervisory institutions against the recalcitrant state in order to enforce compliance with court judgments backed up by treaty provisions in respect of which states under took to comply with decisions in cases where they are parties. Under the African human rights system, article 30 of the African Court Protocol states undertake to comply with decisions and to guarantee execution while article 29(2) empowers the Executive Committee to oversee compliance with judgments. This provision lays to rest any doubt regarding the question as to whether undertaking compliance is not direct enough to impose the implementation obligation on states. It goes to say states must ‘guarantee execution’ of those judgments, that is to say, giving effect to the remedial parts of the order by implementing it ‘within the time stipulated by the Court’. On its part, the Protocol on the SADC Tribunal provides in article 32(1) that states parties must adopt ‘the procedure for the registration and enforcement of foreign judgments’ to ensure enforcement of judgments of the SADC Tribunal. Article 32(2) is akin to article 30 of the African Court Protocol regarding reference to ‘execution’. In terms hereof, SADC member states are required to ‘forthwith take all measures necessary to ensure execution of decisions of Tribunal’. Article 32(3) makes sure that it is only parties to the dispute that must comply with decisions of the Tribunal while articles 4 & 5 of the Protocol on the SADC Tribunal speak directly to the issue of non-compliance. In terms of article 4, party can refer

87 (CCT 19/07) [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC) (2 June 2008). UZLJ Zimbabwe Compliance on Decisions & Judgements223 non-compliance to the Tribunal,88 and the Tribunal itself has the option under article 5 to refer the case of non-compliance to the SADC Summit for ‘appropriate action’. In conclusion, in line with the wording of article 5 of the Protocol on the SADC Tribunal that provides for referral of cases of non-compliance to the SADC Summit for ‘appropriate action’, many international treaties shy away from stipulating the incentives.

CONCLUSION In this contribution to existing body of knowledge on the discussed subject, the author has demonstrated the need for enforcement mechanisms in order to ensure implementation of decisions and judgments of human rights supervisory institutions. The concept of compliance entails adopting deliberate measures in good faith in a bid to give effect to these decisions in a manner that changes the status quo created by instances of human rights violation. To a certain degree, a state’s compliance record could be assessed to give a general trend and attitude of that state towards compliance. Of the cases lodged before the African Commission against Zimbabwe, the country has maintained a hundred percent record of non-compliance spanning over the past two decades. However, the country has thawed to the UPR process by subjecting itself to that mechanism. Zimbabwe has submitted a national report and then the mid-term review. More importantly, she accepted quite a number of recommendations and undertook to implement them as opposed to the attitude exuded in respect of the African human rights mechanisms. The impact of non-implementation or non-execution of judicial decisions has been condemned by human rights supervisory institutions such as the African Commission and the Inter- American Court as a violation of the same obligations twice. Non-execution of decisions contradicts the tenets of rule of

88 This is what transpired in the Campbell case when Zimbabwe declined or failed to comply whereupon the SADC Tribunal upheld the claim of non-compliance and referred the case of non-compliance to the SADC Summit for appropriate action. 224 University of Zimbabwe Law Journal 2018 law, democracy and human rights such as the rights to be heard, fair trial and the right to access to justice. Non- compliance with judgments further violates the right to an independent tribunal as execution of judgment lies at the heart judicial independence. Therefore, the gravity of the impact of non-compliance with court decisions on other human rights should serve as an impetus to push for collective efforts towards ensuring that human rights decisions are implemented at national level. DETERRENT SENTENCES FOR THE PERPETRATORS OF DOMESTIC VIOLENCE: Case Notes on S v Muchekayawa 2012 (1) ZLR 272 (H) and S v Gudyanga 2015 (1) ZLR 238 (H)

BY GEOFF FELTOE1

INTRODUCTION Ideally marriage should be a relationship of love and affection and mutual respect of the marital partners but regrettably some husbands violently dominant their wives and create a living hell for their spouses. Cases of assaults by husbands upon their wives have increased despite attempts to curb this practice. Often assaults by husbands upon their wives become increasingly brutal over time and they may even end up causing the deaths of their spouses. Wives may be reluctant to make criminal complaints against their violent husbands or may withdraw criminal complaints after lodging them. They may stay in violent and destructive relationships for a variety of reasons, including actual or perceived economic dependence on husbands for support of the family and cultural pressures upon wives to stay in the relationships. After assaults, violent husbands may often be apologetic and for a while will treat their spouses with kindness, leading the women to think that they may still mend their ways. Sometimes battered women may even blame themselves for the assaults and may suffer depression or loss of psychological energy necessary to leave their spouses. The courts have adopted the approach that one objective of the Domestic Violence Act [Chapter 5:16] to try to avoid breaking up families by using, wherever appropriate, alternate measures such as counselling and protection orders. However the primary objective of the Act is to offer protection to women who are in danger from their violent spouses, given

1 I am extremely grateful to Professor Julie Stewart for all her helpful comments and observations when I was writing this paper. Any errors in this paper are, of course, my own.

225 226 University of Zimbabwe Law Journal 2018

that such harmful violent behaviour may escalate and might ultimately pose a threat to life. The Act is therefore more directed towards early preventive interventions which may curb violence. Thus the preamble to the Act reads: “To make provision for the protection and relief of victims of domestic violence and to provide for matters connected with or incidental to the foregoing.” Where criminal charges are brought against violent husbands it is important that the courts impose adequately deterrent sentences. In some cases this will mean the imposition of custodial sentences even though the effect will be to break up families.

CRIMINAL CHARGES AND SENTENCES IMPOSABLE Section 4 of the Domestic Violence Act creates the criminal offence of domestic violence. This offence is punishable by a maximum sentence of a fine not exceeding level fourteen (currently $5000) or imprisonment for up to ten years or both such fine and imprisonment. Section 3 provides that the offence of domestic violence includes any unlawful act, UZLJ Case Notes 227 omission or behaviour by an accused which results in death or the direct infliction of physical or sexual injury to a complainant. Where a husband or intimate partner causes the death of his wife or partner by an assault, rather than charging domestic violence where the maximum sentence is imprisonment for ten year, the husband or partner must be charged under the Criminal Law (Codification and Reform) Act [Chapter 9:23] with either murder where the maximum sentence is the death penalty2 or culpable homicide where the maximum penalty is life imprisonment.3 The accused should be charged with attempted murder if he assault her with the intention to kill her for as for this offence he can be sentenced to death or up to life imprisonment.4 Where the husband or partner assaults his wife or partner or even a previous intimate partner, he can either be charged with the offence of domestic violence or with assault under section 89 of the Criminal Law (Codification and Reform) Act as the maximum sentence for both of these crimes is imprisonment for ten years, although categorizing the assault under the generic offence of domestic violence may disguise the nature of the offence, that is a serious matter involving the intentional infliction of harm. It would appear that in cases of domestic violence, prosecutors prefer to prosecute under the Domestic Violence Act rather than the offence under the Criminal Code. Where a husband rapes his wife, often after using violence to overcome her resistance, he should be charged with rape under the section 65 of the Criminal Law (Codification and Reform) Act. In terms of section it is no defence to rape, aggravated indecent assault or indecent assault that the complainant was the spouse of the accused.5

2 Section 47(2) 3 Section 49. 4 Section 47(3). 5 Section 68. 228 University of Zimbabwe Law Journal 2018

PUNISHMENT FOR MEN GUILTY OF DOMESTIC VIOLENCE In the case S v Muchekayawa 2015 (1) ZLR 272 (H) the accused, aged 29, went with his wife and his wife’s sister went to a beer drink. When they were going home, the complainant refused to board a taxi chosen by the accused and instead the three were taken home in a taxi selected by the complainant. As soon as the complainant and the accused arrived home, the accused questioned the complainant about why she had refused to use the taxi he had ordered. He then started to assault his wife. He used a log to hit his wife several times all over her body until she fell to the ground. He also picked up a stone and struck the complainant once on the top of her eye. The trial magistrate found that the complainant had sustained a deep cut as a result of the assault with the stone “showing that the force used was excessive.” Confusingly, however, the magistrate also found that the complainant did not sustain any serious injuries as was “shown by the fact that she did not seek medical attention.” The accused pleaded guilty to the charge of contravening section 4(1) read with section 3 of the Domestic Violence Act. The magistrate sentenced him to pay a fine of US$150 or in default of payment to imprisonment for thirty days. In addition he imposed a three months sentence of imprisonment wholly suspended for three years on condition the accused did not within that period commit any offence involving domestic violence and for which he is sentenced to imprisonment without the option of a fine. On review the judge found that the sentence imposed was disturbingly lenient. He castigated the magistrate for his “startling conclusion that the injuries are not serious because the complainant did not seek medical attention.” He pointed out that section 5(2) of the Domestic Violence Act requires a police officer to whom a complaint of domestic violence is made or who is investigating a complaint to inform the complainant on how to obtain medical treatment and then return to the police with the medical report. The Judge said that magistrates dealing with such cases should always request the complainants to obtain medical reports in order for the court to assess not only the extent of the injuries sustained but also whether there is any likelihood of any permanent disability. The importance of medical reports in such cases could not be overemphasized. The magistrate should have UZLJ Case Notes 229 postponed the passing of sentence pending the production of a medical report. The court correctly observed: Unless sufficiently deterrent sentences are imposed by the courts as provided by the Domestic Violence Act …the whole purpose of this piece of legislation will never be realized. Men will continue to brutalise their wives …Whilst each case should be decided on its own merits, in serious cases custodial sentences are appropriate6 In the case of S v Gudyanga 2015 (1) ZLR 238 (H) the accused, aged 20 and who was unemployed, had assaulted his 18 year old wife because she had refused to have sexual relations with him. The complainant who sustained a swollen mouth from the attack did not seek medical attention. The accused had previously committed a similar offence for which a suspended sentence of two months’ imprisonment had been imposed. In the present case the trial magistrate sentenced the accused to two months’ imprisonment and brought into operation the previously suspended sentence of two months. The total sentence imposed was thus a custodial sentence of four months. Factors considered in mitigation were that the accused was unemployed, he had a minor child and he had pleaded guilty and had shown contrition and he acted out of frustration because he had been denied his so-called “conjugal rights.” In aggravation the court took into account that he was a repeat offender. The regional magistrate sent this case for review to the High Court as the regional magistrate considered that the sentence was too harsh because it was likely to break up the family which is contrary to what the regional magistrate considered is one purpose of the Domestic Violence Act. The regional court magistrate stated that the trial magistrate should have considered imposing a sentence of community service instead of the custodial sentence. The High Court upheld the sentence of the trial magistrate finding that he had properly exercised his discretion and there had been no misdirection on his part. The High Court stressed that there is no hard and fast rule that, because the purpose

6 At 274D. 230 University of Zimbabwe Law Journal 2018 of the Domestic Violence Act is to try to keep families together, custodial sentences must not be imposed. Custodial sentence may be necessary in serious cases and where there has been repeat offending. The High Court then gave a list of the sort of factors that the trial court should consider in deciding upon the appropriate sentence when a husband assaults his wife. The factors listed include the following: • the extent of the complainant’s injuries as evidenced by medical affidavit;7 • the possibility of permanent injuries; • whether any of the complainant’s property was damaged; • whether the accused has previous convictions for assault upon his wife; • whether the marital relationship between the parties is now so hostile and acrimonious that reconciliation seems unlikely; • whether the accused pleaded guilty and showed contrition; • whether the accused made reparations or amends; • the accused’s reason for assaulting his wife e.g. was he provoked, did he find out or suspect that she was committing adultery etc.; • whether the parties are willing to undergo counselling.

CONCLUSION Wives need to be protected against dangerously violent husbands and other intimate partners. Police officers must properly investigate all cases involving domestic violence and must inform the victims of their rights, including their right to lodge criminal complaints against their husbands. They should also advise the victims to be medically examined. Where prosecutions are brought but the victims have not yet been medically examined, the matter should be postponed to allow a medical affidavit to be drawn up and produced in evidence. Taking into account all the relevant considerations bearing on sentence, in serious cases, such as where wives have been

7 The nature of the weapon used and the intent of the assailant could be added here. UZLJ Case Notes 231 badly injured, custodial sentences may be the only appropriate sentence even if the accused is a first offender. Custodial sentences may also be required where the accused has previous convictions for this offence or has repeatedly violated protection orders. Much assupport should be given to assist parties to manage their relationships without using violence, there are some marriages and relationships that are so broken as a result of violence that they can no longer be mended and simply pose a grave threat to the physical wellbeing of females in such relationships. SHOULD PROVOCATION BE A PARTIAL DEFENCE TO INTENTIONAL KILLING OF AN ADULTEROUS SPOUSE?

Case Note on the Case of S v Ranchi HH 515-17

BY GEOFF FELTOE

This case raises the important issue of whether the defence of provocation should operate as a partial defence when a man intentionally kills his spouse whom he discovers committing adultery.

THE CURRENT LAW GENERALLY During interaction in society, people often provoke others by their conduct or their words. There would be chaos and disorder in the society if people responded with violence when subjected to every minor provocation they may encounter. The underlying policy in relation to this defence is therefore that, generally, the law expects people to exercise restraint and self-control when provoked and to refrain from engaging in violence against the provokers. The defence of provocation is thus a limited defence in Zimbabwe. For crimes other than murder, provocation does not operate as a defence but can only be a mitigatory factor. For murder, provocation will at most be a partial defence. Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] codified the common law two stage approach to provocation as a defence to a charge of murder. The first stage is to decide whether the accused had intention to kill. If the provocation received caused him to act in a “blind rage” without intention to kill, he or she would be found not guilty of murder but would instead be found guilty of culpable homicide. Under the second stage if the accused was found to have had intention to kill, he or she would still be entitled to a partial defence reducing murder to culpable homicide if the provocation caused him or her to completely lose his or her self-control and the provocation was sufficient to make a reasonable person in this position and circumstances to lose their self-control and intentionally kill.1 The automatic conviction for culpable homicide under the second stage of the test appear to be

232 UZLJ Case Notes 233 contradictory as the court will have found, in effect, that the accused responded to the provocation in a manner that even a reasonable person would have responded. In a number of cases it has been observed that the second rung rarely applies and this partial defence would only succeed where there was extreme provocation.2 Clearly the reasonable person would not engage in fatal violence when subjected to slight provocation. South African law does not follow the second stage of the approach in Zimbabwe. In South Africa if the accused was found to have had the intention to kill, he or she would be convicted of murder and the provocation to which he or she was subjected would simply be taken into account in mitigation of sentence. However, serious provocation might form a basis for the defence of non-pathological criminal incapacity. The second stage approach to provocation was subjected to trenchant criticism even before it was incorporated into the Criminal Law Code. In the case of S v Dzaro 1996 (2) ZLR 541 (H) Mubako J accepts that this approach has the support of a respectable pedigree of case law, but maintains that it is theoretically unsound and adds little to the basic approach followed in South Africa. He states that it is artificial to use of an objective test to measure a person’s mental state as a person is provoked subjectively not objectively and this involves no objective standard. The second stage attempts to give the accused a second chance to save his defence. It is a contradiction in terms to talk of an objective justification for an unlawful killing. He contends that “the proverbial reasonable man is a paragon of virtue” and “the least one would expect of the reasonable man is that he would in all circumstances exercise a sufficient degree of self-control to avoid committing any unlawful killing intentionally.” Once it

1 In the case of S v Nangani 1982 (1) ZLR 150 (S) the Supreme Court suggested an alternative formulation of this test, namely: Was the provocation such as could reasonably be regarded as sufficient ground for loss of self-control that led the accused to act against the victim as he or she did. This formulation avoids the need to find that even a reasonable person would have gone ahead and intentionally killed when faced with that extent of provocation. 2 See for instance S v Howard 1972 RLR 247 (G) at 254. 234 University of Zimbabwe Law Journal 2018 is conceded that the killing was unlawful and intentional, a reasonable man cannot be heard to say that he killed because he was overcome by anger.3 However, it could be argued that Mubako J was setting an unrealistic standard for what is to be expected of the reasonable person. The reasonable person is not devoid of human emotions and cannot be expected never to lose his or her temper and always to maintain his or her self-control even when faced with extreme or overwhelming provocation. Take for instance a situation where a father comes home and discovers his young daughter being raped or his young son being sodomised by a man. Surely a reasonable person placed in this situation might well not be able to maintain self-control and might not be able to stop himself from intentionally attacking and killing the perpetrator. Although made in the context of whether compulsion should ever be a defence to killing of a person under compulsion, the South African Appellate Division in the case of S v Goliath 1972 (3) SA 1 (A) points out that the criminal law “should not be applied as if it were a blueprint for saintliness, but rather in manner in which it can be obeyed by a reasonable person.” An example of extreme provocation is to be found in the case of S v Ngwanda HH-30-2006. Here the accused stabbed to death the deceased. The deceased had previously committed adultery with the accused’s wife on numerous occasions. He openly bragged about having seduced the wife. The accused took the legal route and obtained a judgment against the deceased for adultery damages. The deceased contemptuously refused to pay these damages and continued to brag and taunt the accused to the extent of boasting in public that he had fathered the accused’s last child. Despite having been caught red handed committing adultery with the accused’s wife he did not repent nor relent despite being sanctioned by the

3 At p 459 D to H. It should be pointed out that in the Dzaro case a woman had intentionally stabbed to death her boyfriend because he had taunted her by telling her that she had failed to sexually satisfy him. The court found that a reasonable person in the accused’s position, however much she was offended by the taunts received, would not have formed the intention to kill and acted in the manner in which the accused acted. UZLJ Case Notes 235 village court and elders. On the day in question he was caught red handed again soliciting for sexual favours from the accused’s wife. Shortly before his death the deceased had harassed and tormented the accused at the beerhall. The accused then lost his self-control and stabbed to death the deceased. The court found that any reasonable man could have lost his temper to the extent of exercising self-help by taking the law into his own hands as the accused did. The extreme provocation was sufficient to reduce murder to culpable homicide. The court pointed out, however, that the courts do not condone the unlawful shedding of precious human blood. Undoubtedly the deceased was a nasty wicked character. The evil and wicked members of society, however, also have the right to life and due protection of the law. That being the case no one is allowed to exact punishment or deprive them of their life without the due process of law. Another possible objection to the second rung test is to be found in the Ranchi case. In that case the Judge cites an article referring to psychological research that casts doubt on whether an anger impulse can ever completely overwhelm a person even when reacting to the most provocative conduct. Even in an extreme situation the person has “a high level of choice” and if the person kills, he does so because he elects to do this. The conclusion in this article is that such a person has not lost the ability to control his actions and that person should enjoy no special privilege in law if he kills in these circumstances.4 But even if the reasonable person test does take account of human emotions when faced with extreme provocation, the issue still remains as to whether the second rung is necessary and appropriate or whether the accused should simply be convicted of murder in mitigating circumstances.

PROVOCATION ARISING OUT OF ADULTERY The second rung has most frequently been relied upon in respect of situations where male accused have intentionally

4 Graeme Coss The Defence of Provocation: An Acrimonious Divorce from Reality 18 Current Issues Crim. Just. 51 2006-2007 pp 51-78 at pp 52-53 236 University of Zimbabwe Law Journal 2018 killed their spouses after discovering them in the act of adultery. It is clear that a mere suspicion of adultery cannot be the basis for a successful defence under the second rung. Thus in the Ranchi case the court decided: This court can only surmise that the jealous demon in him got the better of him that day. At most it would appear that the accused may have had his own suspicions in his head about his wife’s fidelity since by his own admission he frequently travelled to Malawi. But suspicion alone can never be the basis of using provocation as a defence for fatally killing one’s spouse. In more general terms in the Ranchi case the Judge points out that “throughout the world most married couples encounter insults, suspicions, and confessions of infidelity by their spouse and yet only a small number resort to killing.” There are no reported cases in Zimbabwe where a woman killed her spouse in these circumstances, although there is one case where a female spouse killed the woman who was having an affair with her husband.5 It is clear that men are far more likely than women to resort to spousal killing. The extreme male reaction to the discovery of infidelity is explicable on the basis of how men perceive the marital relationship in the context of a male dominated society where many men treat spousal infidelity as a violation of their proprietary and possessory rights over their wives. Cultural factors also play into this social construct. On the other hand, wives may only try to assault but not kill their cheating spouses and if they are able to do so, they may file for divorce. Tsanga J in the Ranchi case raises serious doubts about the constitutionality of allowing the provocation defence to operate as a partial defence in a situation where a spouse is killed because of adultery. She points out that section 52 of the Constitution provides for the right to personal security and prohibits all forms of violence by private actors, and this encompasses protection from violence within family and domestic spheres. The Judge observes that the domestic

5 See S v Ncube S-14-87. In this case the deceased had blatantly taunted the accused about her adultery with the husband. See also S v Nangani 1982 (1) ZLR 150 (S) where a man killed his common law wife. UZLJ Case Notes 237 sphere is “where women in particular encounter the most violence.”6 It could also be added that there are various other constitutional provisions that are relevant such as the right to life7 [section 48(1)]; the rights of women and protection of their dignity and worth as equal human beings in the society [section 80(1)]; and the provision outlawing laws, customs, traditions and cultural practices that infringe upon the rights and personal safety of women [section 80(3)]. The Judge therefore observes that it is “ludicrous to allow a man, who kills his wife in an infidelity-inspired rage, to get away with murder by harnessing the defence of provocation in order to be treated with compassion by reducing that murder to culpable homicide.” She goes on to say: Whatever its historical, biblical or evolutionary aspects, the use of the defence of provocation in instances of spousal killing is increasingly seen as flawed. It is regarded as gender biased and archaic not just because of its proprietary and possessory underpinnings but because it does not stand up to logical scrutiny that the reaction of killing is necessarily that of reasonable person. The Judge points out that Zimbabwe is a signatory to UN Convention on the Elimination of All Forms of Discrimination Against Women and Article 2 obliges States to repeal penal provisions which constitute discrimination against women. The Judge therefore recommends that the partial defence of provocation when applied to killing of an adulterous spouse should be removed from the ambit of provocation because it

6 The victims of domestic violence are overwhelmingly women. Speaking during commemorations of the international day of gender based violence in Harare in 2016 the UN resident coordinator Bishow Parajuli said there was a spike in cases of abuse, especially against women and girls. He pointed out that police records showed that some 40,500 cases were reported between January and September 2016. He observed that gender based violence is a grave violation of human rights with the problem deeply rooted in gender inequality and discrimination. New Zimbabwe report 26 November 2016. The Domestic Violence Act [Chapter 5:16] seeks to provide protection and relief for victims of domestic violence. 7 The right to life is absolute except that a person may who commits a murder in aggravating circumstances may be sentenced to death. 238 University of Zimbabwe Law Journal 2018 increases women’s vulnerability to violence given that women and not men are predominantly though not exclusively at the receiving end of crimes of passion. In fact the recommendation of the UN Division on the Advancement of Women is that both ‘honour’ and adultery be removed as defences for premeditated killings or ‘crimes of passion.’” It is respectfully submitted that for the compelling reasons given by Tsanga J, intentional killing by a man of his adulterous spouse should be treated as murder and provocation should not be a partial defence but only a mitigatory factor. To avoid gender discrimination the same approach should apply where a male accused kills a man who is found committing adultery with the accused’s wife and the rare situation where a woman kills her adulterous spouse or another woman who is engaged in an adulterous relationship with her spouse.

CONCLUSION The Law Development Commission and the legislature should critically re-examine the second rung approach to provocation in Zimbabwe to decide whether a person who intentionally kills another under provocation should be convicted of murder and whether the provocation can be taken into account in mitigation of sentence. But even if the second rung approach is to be retained where there has been grave provocation, the recommendation of Tsanga J must be followed and we must include an explicit proviso to the provision in the Criminal Code to the effect that a person who kills an adulterous spouse will not be entitled to a reduction of murder to culpable homicide on the basis of the second rung. LOOKING BACK TO LOOK FORWARD Case note on S v Madondo & Anor 2015 (1) ZLR 807 (H)

BY ELIJAH MAKOMO*

INTRODUCTION The advent of the new Constitution1 in 2013 ushered in a new constitutional paradigm anchored on the sacrosanct principle of supremacy of the constitution. It envisages an open and democratic society where the enjoyment of human rights by citizens is paramount and takes precedence over all else. To give meaning to this aspiration, courts have a positive duty to ensure that citizens’ rights are not lightly curtailed through the conduct of state machinery or laws passed by the state. The courts are therefore called upon to view the constitution as an organic or living document whose continued growth depends on their judicial decisions.2 In that regard, when interpreting constitutional provisions especially the bill of rights, a court is obliged to give a generous and wide interpretation in favour of enjoyment of rights as against their restriction.3 This recently came to the fore in the High Court case of S v Madondo & Another 2015 (1) ZLR 807 (H).4 This

* LLB, LLM (UNISA), DPhil (cand) UZ. 1 The Constitution of Zimbabwe, 2013 (“the Constitution”). 2 S v Mhlungu 1995 (3) SA 391 (CC) at [8]. 3 Currie & De Waal The Bill of Rights Handbook 138; S v Zuma 1995 (2) SA 642 (CC) at [14]; See also Rattigan & Ors v Chief Immigration Officer & Ors 1994 (2) ZLR 54 (S) at 57 F-H where the court instructively stated: “This Court has on several occasions in the past pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections. What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose. All relevant provisions are to be considered as a whole and where rights and freedoms are conferred on persons, derogations therefrom, as far as the language permits, should be narrowly or strictly construed.” 4 At 807 where the learned Judge stated that “Judicial Officers, like the magistrates should familiarise themselves with the provisions of

239 240 University of Zimbabwe Law Journal 2018 case was decided in the context of the accused’s right to liberty.5 It has had far reaching consequences on how magistrates’ courts now approach the question of remand where an accused person has been over-detained by the police. In other words, it has now assumed the status of a locus classicus on the point. Acting on the basis of this case, it is now settled practice in the magistrates’ courts that any accused person brought before a remand court having been over-detained must be released without the court even considering the facts whether there is reasonable suspicion of commission of an offence or not. High profile cases such as that of cleric Evan Mawarire immediately come to mind. It is in that context and background that the case is critically analysed in this article with a view to see if the Constitution altered the law on that point rendering previous cases no longer applicable on the question.

BRIEF FACTS OF THE CASE The two accused persons were arrested on 1 May 2015. They were only arraigned before a magistrate for initial remand on 4 May 2015. The Police had tried and failed to obtain the accused’s warrants for further detention before the expiry of the 48 hours. When the accused were arraigned before the Magistrates Court on 4 May 2015, an application for their immediate release was made on the basis that they had been detained in excess of 48 hours in violation of their constitutional right to liberty. The Magistrate accepted as common cause that the accused had indeed been detained in excess of 48 hours. She, however, declined to release the appellants and placed them on remand. She then proceeded to deal with the application for bail by the accused and declined to admit both accused to bail on the basis that they had the propensity to commit similar offences as they had been arrested after placing further advertisements in the newspaper to dupe other people. They appealed to the High Court against the refusal to grant bail.

the Constitution in order to protect the rights of arrested and detained persons who in most cases are first brought before them. The Constitution is the supreme law and should be complied with.” 5 Which is guaranteed by section 49(1) of the Constitution. UZLJ Case Notes 241

THE DECISION Without hearing the appeal on the question of bail, the High Court mero motu released the appellants on the basis that the over-detention of the appellants was an illegality which the court a quo ought not to have condoned. The court of appeal could therefore not countenance such illegality too by entertaining the appeal and ordered their release in terms of Section 50(3) of the Constitution. The section reads: Any person who is not brought to court within the forty- eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.

CRITIQUE OF THE JUDGMENT With the greatest respect, the judgment may be critiqued on three grounds. First, the construction placed on section 50(3) of the Constitution is debatable. Secondly, it is doubtful if the procedure adopted by the court justified its conclusion. Thirdly, the decision may have been made per incuriam6 against an existing and binding case authority. These bases will now be discussed in seriatim.

Interpretation of Section 50(3) Section 50(2) is a right of any person arrested for an alleged offence to be brought to court within the specified period of 48hours following the arrest. While the section assists in the enjoyment of the right to liberty, it is a right on its own, distinct from the right to liberty. The section provides a right to be brought before a court or to be placed under judicial authority.7 Section 50(3) which must obviously be read together with section 50(2) is its enforcement provision which

6 A judgment made per incuriam is one which ignores a contradictory statute or binding authority, and it is therefore wrongly decided and of no force or effect. A judgment that is found to have been decided per incuriam does not then have to be followed as precedent by a lower court. (Law and Legal Definition https:// definitions.uslegal.com/p/per-incuriam/ date of use 19/02/18). 7 Woolman and Bishop Constitutional Law of South Africa 2nd ed Vol 3 (Juta 2014) p51-85; Currie I & De Waal J The Bill of Rights Handbook 6th ed (Juta 2013) p776. 242 University of Zimbabwe Law Journal 2018 seeks to ensure that the arrested person is not detained beyond the permissible 48 hours. The question that then arises is whether section 50(3) is directed to the remand court before which the accused has now been brought after 48hrs of detention or it is to the police officer who still has the accused in his custody at the expiration of 48hrs? It is respectfully submitted that Section 50(3) is a constitutional demand directed to the police officer or authority under whose detention the accused is in to release that accused as soon as the 48 hour period lapses either without charge, on police bail, summons or warning to appear in court. This interpretation must be correct if regard is had to the purpose of the right to be brought before judicial authority which is “to force the state to declare its hand when it is purporting to detain a person for allegedly committing an offence”8 by bringing that person before a court as soon as possible. It is aimed at limiting the opportunity for cruel, inhuman or degrading treatment.9 It achieves this by enjoining the police officer to immediately release on the expiration of 48 hours thus depriving the state further opportunity to subject the accused to illegal treatment. If the police officer fails to present an arrested person before a court within 48 hours or to release him, by the time he takes that accused to court he has already not only breached section 50(2) but also 50(3). When this happens, what does the remand court do? Should it still invoke that same section 50(3) and release the accused? It is argued that the subsection is not directed to the remand court for the reason that when a person who has been detained beyond the 48 hour period is eventually brought before a court for remand, the situation mutates into what I will call “the Mukoko scenario”.10 The remand court cannot release him on the pretext of section 50(3) if reasonable suspicion has been established that he has committed an offence. In Madondo’s case, the court justified the release of the accused on the basis that it could not condone an illegality. It reasoned thus:

8 Woolman & Bishop op cit 51-88. 9 Currie and De Waal op cit 776. 10 As derived from the facts of Mukoko v Attorney-General 2012 (1) ZLR 321 (S). UZLJ Case Notes 243

I am not inclined in this case to deal with the appeal of the appellants in relation to bail application as to do so would amount to condoning a clear illegality. The consequences of unlawful detention are clear. See S v Makwakwa 1997 (2) ZLR 298. I am therefore obliged to act in terms of s 50 (3) of the Constitution and order the immediate release of the appellants as their continued detention is illegal. It is submitted with respect, that the same argument was before the Supreme Court in Mukoko v Attorney-General 2012 (1) ZLR 321 (S). The question whether the accused must be placed on remand in those circumstances is laid down in that case and represents the law on that point. It is possible that argument may arise that the Mukoko case was decided before the “new” Constitution and should no longer continue to hold. I would respectfully disagree. The same position has been confirmed in the recent Constitutional Court case of Petros Makaza and Others v The State CCZ 16/17 where it is stated: In Mukoko’s case, this court had this to say at 339A-B on the effect of evidence extracted through torture on a prosecution: “The decision of the Court on this point is that ill- treatment per se has no effect on the validity of the decisions (decision) to charge the victim with a criminal offence and institute prosecution proceedings against him or her. It is the use of the fruits of ill-treatment which may affect the validity of the decisions (decision) depending on compliance or non-compliance by the public prosecutor with the requirements of permissible deprivation of personal liberty under s[13(2)(e) of the Constitution.” (bold for emphasis) It is critical to note that from the context of the Mukoko case that the ill-treatment which was being referred to by the Supreme Court included her over-detention where she had been held incommunicado for 19 days. In fact, one of the grounds raised by the defence was that the uncontested behaviour by State security agents in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody rendered the institution of the criminal prosecution an abuse 244 University of Zimbabwe Law Journal 2018 of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody. The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.11 As long as there is no correlation between the pre-charge ill- treatment (including over-detention) and the evidence that the prosecution seeks to rely on for its decision to institute criminal proceedings, the state does not lose its right to prosecute, including placement on remand.12 It would be absurd, therefore, that the prosecution would still be allowed to prosecute the accused notwithstanding that he has been over-detained or subjected to torture, inhuman or degrading treatment yet it is not allowed to merely place the same accused on remand. The crucial consideration is whether or not reasonable suspicion has been established that the accused committed the offence charged.13 It would appear from the above that the facts or evidence being relied on by the state to establish such suspicion should not itself be a product of the ill-treatment.14 Considered from this viewpoint, it may also be argued that an accused may now challenge placement on remand if the only evidence available to the state is tainted by torture, inhuman or degrading treatment.15

11 Mukoko v A-G 2012 (2) ZLR 321 (S) at 329B-D. 12 Petros Makaza & Others v The State CCZ 16/17 at p6 of the cyclostyled judgment. 13 Mukoko’s case at 342C-D. 14 This is so if regard is had to what the court stated @ 342D that “An illegal arrest or detention, without more, has never been viewed as a bar to subsequent prosecution for an offence the accused person is reasonably suspected on untainted evidence of having committed.” 15 The writer is aware of a different view to the effect that the constitution has provided a mechanism to deal with evidence allegedly obtained in violation of an accused person’s constitutional rights. In this regard s 70(3) is relevant. It is argued that s 70(3) is concerned with admissibility of unconstitutionally obtained evidence, which is a question for the trial court and not a remand court. This position is fortified when one considers the scope of a remand application – it is not designed to determine the admissibility or otherwise of evidence – this falls within the realm of a trial court, which determines the UZLJ Case Notes 245

The fact that the court in Madondo’s case did not stipulate what would become of the state’s case against the accused after releasing them suggests that it was of the view that the state does not lose the right to prosecute. In fact, in practice we have had instances where after the accused is released on the strength of the Madondo case, no later than he leaves the courtroom with his pyrrhic victory does he meet the police officer at the court entrance with a summon calling him back to court on the same facts and charge. It is desirable that the issue of over-detention be best addressed by awards for damages and not to adopt an all-or- nothing approach of ordering immediate release of the accused the earliest moment that the court is appraised of even the slightest over-detention. The Madondo case does not leave room for the remand court to take into account such important considerations whether there is reasonable suspicion of commission of an offence by the accused; the seriousness of the offence; how strong the evidence against the accused is; and the principle of proportionality.16 Strict application of this case would certainly work out an injustice to the state in some instances, for example, where the offence is serious and evidence overwhelming but the accused arrives at court only some minutes after the 48 hours. That approach has been disapproved by Woolman & Bishop who posit that: The advantage of damages as a remedy is that it avoids the objection of remedying one evil by creating another, and it possesses the flexibility so problematically lacking in all-or-nothing rulings relating to release, or to the

question through a trial-within-a-trial procedure. The courts in South Africa have generally rejected pre-trial motions of challenging admissibility of alleged unconstitutionally obtained evidence. 16 The principle of proportionality was explained by the learned DCJ (as he then was) in Mukoko’s case @ 343D that “the principle requires that a fair balance be struck between the interests of the individual in the protection of his or her fundamental rights and freedoms and the interests of the public in having those reasonably suspected of having committed criminal offences tried, and if convicted, punished according to law.” It follows therefore that if the principle is applied to the case of over-detention, the court must be allowed discretion to weigh the competing interests and arrive at a decision regard being had to what is just in the circumstances. 246 University of Zimbabwe Law Journal 2018

admissibility of evidence, or to a stay of proceedings…It should also be awarded sparingly in situations where an interdict to stop violating, or a mandamus to start fully respecting the right in question, makes more sense.”17 (bold for emphasis) Section 50 (7), (8) and (9) of the Constitution provide adequate remedies such as habeas corpus, release and personal liability for compensation by the person who is responsible for the illegal detention. Finally, the interpretation placed by the court on section 50(3) creates a conflict between that section and section 49 (1) (b) of the Constitution which authorises taking away of the right to liberty where there is a just cause. One such just cause is reasonable suspicion that an offence was committed.

Issues of Procedure First, the matter that was before the High Court was an appeal against refusal of bail. The issue of placement on remand had already been decided upon by the court a quo before it went on to decide on the question of bail. The ship had already sailed, so to speak. Thus, by ordering release of the accused, not on bail but to simply go without a further remand date, the High Court effectively set aside the magistrate’s decision to place the accused on remand. With the greatest respect, despite that the decision to place the accused on remand was not the issue being taken on appeal, the court effectively reversed that decision and released the accused. A decision to place an accused on remand is an interlocutory decision that is not appealable and can only be taken on review.18 Secondly, an appeal against refusal of bail is an appeal in the narrow sense.19 The court of appeal must therefore only interfere with the decision of the inferior court if the court a quo committed an irregularity or misdirection or exercised its discretion so unreasonably as to vitiate its decision.20 It is

17 Woolman & Bishop Constitutional Law of South Africa 2nd ed (Juta 2014) p51-69. 18 A-G v Muchero & Anor 2000 (2) ZLR 286 (S) 19 v Ruturi (2) 2003 (1) ZLR 537 (H); HH-26-03. See also S v Chikumbirike 1986 (2) ZLR 145 (S) 20 S v Chikumbirike 1986 (2) ZLR 145 (S) @ 146E-F. UZLJ Case Notes 247 submitted that the decision to place the accused on remand could not have been an irregularity or a misdirection in an appeal against refusal of bail. If the accused were disgruntled with the magistrate’s decision to place them on remand, they should have sought review of the court’s decision. They did not. They appealed against refusal of bail, thus the issue of their placement on remand was not before the appeal court. The Need to Look Back in Order to Look Forward: A decision made per incuriam The Madondo case totally failed to advert to the points laid down in the Mukoko case yet the legal question it was dealing with was the same. The absence of any demonstration that the two were distinguishable meant that the judge was bound by the decision of the Supreme Court.21 The judgment was therefore made per incarium and it may be argued that it cannot be precedent for inferior courts.

CONCLUSION The judgment of the High Court failed to apply the existing binding precedent. As a result, its decision stands to be of no force to the extent that inferior courts may not be bound by it. Once the 48 hour detention period lapses, the continued detention becomes unconstitutional.22 It is for the accused or any person acting on his behalf to now challenge his continued detention in terms of section 50 (7). This is achieved by means of a habeas corpus. If such person is finally brought to court, the court cannot refuse to place him on remand on the mere basis of over-detention if reasonable suspicion has been proved by the state that he committed an offence. This follows the principle that the state does not lose its prosecutorial powers against the accused because of pre-trial ill-treatment by the authorities as long as the evidence relied upon for the decision to prosecute is based on untainted evidence.

21 Which was actually sitting as a constitutional court in this instance. 22 Currie & De Waal The Bill of Rights Handbook 777. CONSTITUTIONALITY OF THE OFFENCE OF DELIBERATELY TRANSMITTING HIV: Case Note on the Case of S v Mpofu & Anor CC-5-16

BY GEOFF FELTOE

THE NATURE OF HIV AND AIDS Before commenting upon the Mpofu case it is first necessary to set out nature of HIV and AIDS. The following medical facts are taken from information provided by an organisation called AVERT.1 Human immunodeficiency virus (HIV) is a virus that attacks the immune system, which is our body’s natural defence against illness. The virus destroys a type of white blood cell in the immune system called a T-helper cell, and makes copies of itself inside these cells. T- helper cells are also referred to as CD4 cells. As HIV destroys more CD4 cells and makes more copies of itself, it gradually breaks down a person’s immune system. This means someone living with HIV, who is not receiving treatment, will find it harder and harder to fight off infections and diseases. HIV is found in semen, blood, vaginal and anal fluids, and breast milk. HIV cannot be transmitted through sweat, saliva or urine. Using[male condoms[or[female condoms[during sex is the best way to prevent HIV and other[sexually transmitted infections. If HIV is left untreated, it may take up to 10 or 15 years for the immune system to be so severely damaged it can no longer defend itself at all. However, the speed HIV progresses will vary depending on age, health and background. [Although there is currently no[cure for HIV[with the right treatment and support, people with HIV can live long and healthy lives. To do this, it is especially important to take treatment correctly and deal with any possible side-effects. There is effective[antiretroviral treatment[available so people with HIV can live a normal, healthy life. The earlier HIV is diagnosed, the sooner treatment can start –

1 https://www.avert.org/about-hiv-aids/what-hiv-aids

248 UZLJ Case Notes 249

leading to better long term health. Acquired immune deficiency syndrome (AIDS) is not a virus but a set of[symptoms[(or syndrome) caused by the HIV virus. AIDS is also referred to as advanced HIV infection or late- stage HIV. A person is said to have AIDS when their immune system is too weak to fight off infection, and they develop certain defining symptoms and illnesses. This is the last stage of HIV, when the infection is very advanced, and if left untreated will lead to death. Treatment for HIV means that more people are staying well, with fewer people developing AIDS. HIV infection used to be a death sentence but it is no longer so provided that the infected person receives anti-retroviral treatment. This treatment can enable an infected person to live a long life. Nonetheless HIV infection is still a very serious matter. As the court pointed out in the Mpofu case: It is well known that infection with the HIV virus can have fatal consequences particularly where the infected person is not in receipt of remedial treatment either because he is not aware of the fact of his infection or because although aware of his status, he takes a conscious decision not to avail himself of such treatment which can only be obtained upon disclosure of his condition to a care giver.2

INCIDENCE OF HIV/AIDS IN ZIMBABWE Although the adult HIV prevalence rate in Zimbabwe has been declining over the last few years due to prevention programmes aimed at sexual behavioural change such as encouraging condom use and reducing multiple partners3 it is still high – in a 2015 UNAids report it was stated as being at 14,7% for adults between 14 and 49 with an estimated 1 300 000 adults aged 15 and over living with HIV. The figure of death due to AIDs was 29 000.4 The high incidence of HIV and AIDs in Zimbabwe and other countries has led to a clamour for the criminalisation and

2 At para 12. 3 Ministry of Health and Child Welfare National HIV and AIDS Estimates Report 2014. 4 http://www.unaids.org/en/regionscountries/countries/zimbabwe. 250 University of Zimbabwe Law Journal 2018 imposition of harsh penalties on those who intentionally engage in activities that will lead to the transmission of HIV. This led to the creation of such an offence in Zimbabwe. This offence is provided for in section 79 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The objective of this offence is to try to prevent the deliberate transmission of HIV.

THE OFFENCE The heading for this offence is “Deliberate transmission of HIV”. This is somewhat misleading. Although the offence can be committed if the accused actually infects the complainant, it can also be committed without proof of actual infection of the complainant by the accused. Where the accused realises that there is a real risk that he or she may be infected and he or she has sexual intercourse with another realising that there was a real risk or possibility of infection, he or she is guilty of the offence. This formulation does not require actual proof of infection. Where the State is alleging that the accused actually infected the complainant, it would have to establish that the complainant did not already have HIV before the accused allegedly infected him or her. If, for instance, the accused rapes and infects a young girl who was a virgin, it will be clear that it was the accused who infected her unless, of course, her mother infected her when she gave birth to her. But with adults it may be difficult to establish which of the two partners was infected first as this cannot be determined by medical evidence. In cases involving sexual intercourse, the offence is committed in the two situations below: 1. The accused, who actually knows that he or she is infected with HIV, has sexual intercourse with another person knowing that this will infect that person with HIV and the complainant does not know that the accused has HIV when they have sexual relations. 2. The accused, who realises that there is a real risk or possibility that he or she is infected with HIV, has sexual intercourse with another person realising the real risk or possibility that the other person will be infected with HIV UZLJ Case Notes 251

and the complainant does not know that the accused has HIV when they have sexual relations. It is explicitly provided that this offence is committed by an accused “whether or not that he or she is married to the other person.” It is a defence for the accused to prove (on a balance of probabilities) that the person with whom he or she had sexual relations knew that the accused was infected with HIV or consented to have sexual relations with him or her appreciating that the nature of HIV and the possibility of becoming infected with it. This defence requires the accused to prove not only consent to sexual intercourse but also that the complainant appreciated the nature of HIV and that that the sexual intercourse could lead to that person being infected.

THE CONSTITUTIONAL CASE The two applicants had been charged with deliberate transmission of HIV in contravention of section 79 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that both applicants had unprotected sexual intercourse with their husbands knowing that they were infected with HIV. The applicants argued that the offence with which they had been charged violated: 1. Their right protection of law under section 18 of the pre- 2013 Constitution because the offence in question is so wide, broad and vague that the law uncertain5 ; and 2. Their right under section 23 of the pre-2013 Constitution not to be discriminated against on any basis including HIV/ AIDS status6 . Most cases HIV transmission takes place through sexual intercourse although there are other ways of transmission, such as deliberately plunging into a victim a syringe known to have been contaminated with HIV. The paper will concentrate

5 The 2013 Constitution does not contain a standalone protection of the law provision but it contains detailed provisions on the rights of a person who has been accused of a crime in section 70. 6 The equivalent provision in the 2013 Constitution is section 56. 252 University of Zimbabwe Law Journal 2018 on situations involving sexual intercourse as in the cases of both the applicants the charge arose from sexual intercourse.

THE BASIS OF THE CONSTITUTIONAL CHALLENGE The challenge to the constitutionality of this offence was focused on the species of this offence requiring only that when the accused has sexual intercourse with another person the accused realised the real risk or possibility that he or she was infected with HIV and that there was a real risk that the other person will be infected with HIV. Counsel for the applicants argued that this formulation of the offence violated the constitutional right to protection of law as it is conjectural and vague. He contended that innocent persons are in danger of being convicted under this provision. The court first set out the right to protection of the law requires that the law must “be expressed in clear and precise terms to enable individuals to conform their conduct to its dictates” and it must “not be so widely that expressed that its boundaries are a matter of conjecture nor … be so vague that people affected by it must guess at its meaning.” Applying this to the offence in question the court decided that the formulation of this offence did not violate the right to protection of the law as it was framed with sufficient clarity and precision to enable people to know what the offence entailed. For liability for crimes of intention in the Criminal Law (Codification and Reform) Act, the accused can be liable either on the basis of actual or constructive intention. Thus for the section 79 offence the accused can be liable either if he or she knew that he had HIV and he or she intended to transmit HIV or if he realised that he might have HIV and had sexual intercourse realising that there was a real risk or possibility that he might infect the other person with HIV. The requirements for proof of “constructive” intention are precisely set out in section 15 of the Code. The court decided that the definition in section 15 “of the phrase ‘real risk or possibility’ has dispelled any perceived vagueness in that phrase by the inclusion therein of the components of ‘awareness and recklessness’.” Counsel for the applicants argued that the offence as currently worded could lead to the conviction of “innocent persons.” UZLJ Case Notes 253

He gave two examples of a person being unwittingly infected with HIV when receiving a blood transfusion and the example of a person infecting another with HIV despite using a condom because it has been scientifically established that condoms are not a hundred percent effective in preventing HIV transmission. As the court decided, neither of these situations can lead to conviction for this offence as neither actual nor constructive intention would be present. Regarding the first example the court correctly pointed out that the person who has no reason to believe that he or she is infected, for example where infection has, unknowing to him or her, been brought about by an injection with an infected needle, would not be convicted under section 79. Regarding the second example the person who has reason to believe that he or she might be HIV positive, would not be liable to be convicted under section 79 if he disclosed this belief to his partner so that the latter could make an informed decision. It could have added on the second example that if the accused did not know that wearing a condom might not prevent the transmission of HIV he or she would not even have subjectively realised that there was a real risk that HIV would be transmitted. The court said that where the accused knows or has reason to believe that that he or she infected with HIV, “public policy would require of such a person that he make full disclosure to his or her intended partner in order to afford that partner the opportunity to make an informed decision.” The Constitutional Court thus found that the offence was not vague and imprecise even when the required form of intention takes the form of so-called constructive intent. What the court should have enquired into is whether it is appropriate for this offence that constructive intention should be sufficient basis for conviction. Where a person deliberately and maliciously actually infects another person with HIV it is fully justified to punish that person severely under the offence set out in section 79. This would apply where the State can prove for example that an uninfected person was infected by the accused who knew he or she was HIV positive, such as where he or she has been tested, has been informed that he or she is positive and has been told of the precautions necessary to avoid transmitting 254 University of Zimbabwe Law Journal 2018 it to others. Particularly blameworthy would be the person who knowing that he or she is HIV positive lies to his or her sexual partner telling him or her that he or she is not infected and that it is thus not necessary to wear a condom.7 But it is very different if the State is alleging that he or she had sexual relations with another when he or she realized that there was a real risk or possibility that he or she might be infected and despite that realization he or she with another person realising the real risk or possibility that the other person will be infected. The accused will typically deny that he or she realised that there was a real risk that he or she had been infected and that he or she had sexual relations taking the risk that the partner would be infected. How will the State prove that the accused, despite his or her denial, took a conscious risk? If the accused has not been tested and told that he or she is HIV positive, would the State be able to rely on the fact that the accused, to his or her knowledge, was displaying symptoms of AIDS. Would this be enough for the State would be able to persuade the court that the only reasonable inference was that the accused must have been aware he or she was infected with HIV and took a conscious risk if the accused maintains that he or she was unaware that these symptoms meant that he or she had HIV and was unaware therefore that he or she could transmit HIV. Such a person would not have been tested, told the result of the test and been counselled on how to avoid transmission. There is frequently a problem with so-called constructive intention. The very term “constructive intention” has been criticised by academic writers on the basis it could be taken to imply that an intention is artificially being attributed to the accused. The writers prefer the term “legal intention” or “dolus eventualis.” The problem with legal intention is that there is often a very thin dividing line between subjective realisation

7 However, the deterrent effect of criminalization may be reduced where the accused blames previous sexual partners for infecting him or her. Such a person may be fatalistic in outlook and may act out of resentfulness and anger when infecting others. If he or she knows that her or she has only have a limited time left to live, a threat of lengthy incarceration may not have great influence upon him or her. Nonetheless criminalisation is justified to try to curb such vindictive behaviour. UZLJ Case Notes 255 and negligence, and there is a danger that the court may wrongly find that the accused had legal intention simply because any normal or reasonable person in his or her situation would have realised the risk. This problem is particularly acute in the context of this offence where if the accused denies that he or she realised that he or she was infected and might transmit HIV. It is difficult to see on what reliable basis the court could infer that the accused must have had the necessary realisation despite his or her denial. In this regard it is interesting to compare section 79 with the provision in section 78. Section 78 deals with deliberate infection of another with a sexually-transmitted disease such as syphilis. Section 78 has a reverse onus provision which is not to be found in section 79. Section 78(3) provides that if the prosecution proves that the accused was suffering from an STD at the time of the crime, “it shall be presumed unless the contrary is proved, that he or she knew or realised that there was a real risk or possibility that he or she was suffering from it.” Although the constitutionality of this reverse onus is questionable, it was presumably inserted to try to overcome the difficulties of proving that the accused knew or realised the real risk that he or she was suffering from an STD. The same difficulties arise in respect of proving that the accused knew or realised that there was a real risk that he or she was suffering from HIV. Additionally, the defence that the accused disclosed to the complainant that he or she was infected applies more appropriately to a situation where the accused definitely knows that he or she was infected rather than a situation where he or she has some reason to suspect that he or she is infected. Thus there is a strong argument for confining this offence to situations where actual intention can be proven. Justice Edwin Cameron, an Edwin Cameron, an HIV-positive Justice of the Supreme Court of Appeal in South Africa has said: “The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.”8 [So too the UNAIDS organization

8 Burris S, Cameron E. “The case against criminalization of HIV transmission”.[JAMA.[2008;300:578–80 256 University of Zimbabwe Law Journal 2018 has urged “governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.”9 As regards the discrimination argument the court pointed out that discrimination on the basis of HIV status is not prohibited by section 23. Thus while section 79 targets only persons infected with or exposed to the HIV virus - which can be regarded as discriminatory of those persons - such discrimination is not unlawful in that it is not proscribed by section 23. It went on to say that in terms of section 23 (5), where a law discriminates on the grounds of sex or gender, the challenger bears the burden of showing that the law is not reasonably justifiable in a democratic society.’ It then applied the recognised criteria for deciding this matter as follows: The legislative objective is to halt or prevent the spread of HIV/AIDS. This objective is both important and laudable. It is sufficiently important to override the right of non- discrimination and the right to privacy. Because of the grave danger to life arising from HIV infection, the measure designed to meet the objective by prosecuting those who spread the disease deliberately or recklessly is rationally connected to, and calculated to achieve, the stated objective. Prosecution for this offence will not be arbitrary or based on irrational considerations. A court is well equipped to assess the evidence in the matter in a rational manner. The means used by the legislation to achieve the objective does not impair the rights of people more than is necessary. The sentence of up to twenty years is not disproportionate. Infection with HIV could be a death sentence for the victim. In grave cases the maximum sentence might be appropriate.

WILL CRIMINALISATION MAKE PEOPLE RELUCTANT TO BE TESTED? This issue was not dealt with in the Mpofu case but a short comment should be made about it. There are two main views

9 Criminalization of HIV transmission [policy brief][Geneva (Switzerland): UNAIDS; 2008. UZLJ Case Notes 257 on this issue. The first is that criminalisation will discourage people from being tested. One such view is the following: The potential to be charged with wilful HIV transmission may be a significant deterrent to being tested for HIV infection. After all, individuals who do not know that they are HIV-positive cannot logically be accused of its transmission. The consequence may be a failure to identify as many HIV-positive people as possible and higher rates of HIV spread. Studies have shown that individuals who are informed that they are HIV positive will commonly desist from high-risk sexual practices, but may not do so if they are unaware of their own status. This is important, since as many as 50% of all new HIV transmissions are attributable to people who are only recently infected.10 The second is that criminalisation will not have this effect. One such view is this, Some argue that criminal prosecution will dissuade persons from being tested for HIV and therefore promote HIV transmission by these persons who do not know their status. Such speculation is unsupported by a single published study. No informed and reasonable person would decline HIV testing, thus placing themselves at risk of grave illness and death, just because of the publicized prosecution of some HIV-infected individuals accused of unlawfully transmitting the disease to others. It is not one’s HIV infection itself that is the subject of prosecution, it is the intentional or reckless transmission of HIV to others.11 The second view is surely the more supportable one. The thrust of our law must be to encourage people to be tested, especially if they suspect that they may be infected. If this criminal offence is confined to situations where the accused has been tested and as a result of the test knows that he or she is infected, then the question of the criminal offence acting as a disincentive to being tested will not arise.

10 Mark A Wainberg “Criminalizing HIV transmission may be a mistake” Canadian Medical Association Journal March 17, 2009[vol. 180[no. 6. 11 Philip B. Berger, MD “Prosecuting for knowingly transmitting HIV is warranted” Canadian Medical Association Journal 2009 Jun 23; 180(13): 1368. THE ROLE OF THE CRIMINAL LAW IN THE PROTECTION OF WOMEN AGAINST GENDER-BASED VIOLENCE Case Note on S v Jeri HH-516-17

BY GEOFF FELTOE1

GENDER-BASED VIOLENCE Although men can be targets of gender-based violence, the large majority of persons affected by gender-based violence are women and girls. The preamble to United Nations Declaration on the Elimination of Violence Against Women recognizes that: … violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men … The preamble affirms that “violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms” and it expresses concerned about the long-standing failure to protect and promote those rights and freedoms in the case of violence against women.” Article 3 of the Istanbul Declaration2 defines gender violence against women as “gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of

1 I am extremely grateful to Professor Julie Stewart for all her helpful comments and observations when I was writing this paper. Any errors in this paper are, of course, my own. 2 Council of Europe Convention on preventing and combating violence against women and domestic violence 2011.

258 UZLJ Case Notes 259 such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” This article will first address the constitutional framework generally for the protection of the rights of women and then focus specifically on the Jeri case which involves a gender- based murder.

THE CONSTITUTIONAL FRAMEWORK The Constitution has various important constitutional provisions on gender rights and protection against gender discrimination. Section 80(1) provides that “every women has full and equal dignity of the person with men.” Section 56 stipulates that everyone has the right to equal protection of the law and women have the right not to be discriminated against on the basis of their gender. Section 17 provides as a national objective that “the State must take positive measures to rectify gender discrimination and imbalances resulting from past practices.” Section 80(3) outlaws laws, customs, traditions and cultural practices that infringe upon the rights and personal safety of women. Zimbabwe is also a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women which in Article 2 obliges a State Party to take all appropriate measures to abolish customs and practices and repeal penal provisions which constitute discrimination against women, although it CEDAW does not directly address the issue of violence as such. More generally, section 51 of the Constitution accords every person the inherent right dignity and to have that dignity respected and protected, and section 52(a) provides that every person is entitled to freedom from all forms of violence from both public and private sources. The Declaration on the Elimination of Violence Against Women which was adopted by the United Nations in 1993 defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” In terms of section 327 of the Constitution International conventions do not form part of the law of Zimbabwe until they have been incorporated into the law by an Act of 260 University of Zimbabwe Law Journal 2018

Parliament. However, section 327(6) provides that when interpreting legislation, every court and tribunal must adopt any reasonable interpretation of the legislation that is consistent with any international convention which is binding on Zimbabwe, in preference to an alternative interpretation inconsistent with that convention. Section 46(1)(c) provides that in interpreting the provisions of the Declaration of Right the courts must take into account all international conventions to which Zimbabwe is a party. Section 46(2) further provides that when interpreting an enactment and when developing the common law and customary law, the courts must promote and be guided by the spirit and objectives of the provisions in the Declaration of Rights. Since 1980, apart from entrenching gender rights as constitutional rights, the Government of Zimbabwe and the courts have adopted various criminal law measures to protect and advance the rights of women and protect them against discrimination and gender based violence. The objectionable marital rape exemption has been abolished,3 domestic violence has been criminalized4 , the law of rape has been strengthened and the higher courts have stressed that the courts must impose sentences that reflect the seriousness of rape, the physical chastisement by a man of his wife is now penalized as assault, and various cultural practices that violate the rights of woman and girls including child marriage have been prohibited.5 Under the law of rape, the courts have explained what is required for the defence of consent to apply, underscoring that when a woman says no to sex she means it and not maybe. Consent is absent when a man uses force or

3 Section 68 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 4 Section 4 of the Domestic Violence Act [Chapter 5:16]. However, there are problems in prosecuting some harmful cultural practices under the Domestic Violence Act as this legislation deals with abuses within the family and other intimate relationships. It would thus not apply to a situation outside these relationships such as where members of the church or community who are not part of the complainants’ family force the complainants to undergo virginity tests on the complainants. However, the accused could be charged with indecent assault in terms of the Criminal Law Code. 5 Section 4 of the Domestic Violence Act. UZLJ Case Notes 261 coercion or fraud or abuses his power or authority in order to have sexual relations with the complainant. The courts have also ruled that a prostitute can be raped if she has declined to have sexual relations with a man and that the fact that a woman is wearing skimpy clothes does not provide any sort of excuse for rape. Although there has been some retraining of the police in the proper handling of rape complaints, cases still arise in which the police adopt a dismissive attitude to complaints of rape and decline to take the matters any further. Police at local level may sometimes fail to take seriously and deal properly with complaints of domestic violence. There is a need for further training of the police to change their attitudes to such cases. In a society which is still deeply patriarchal many men continue to hold unacceptable sexist and chauvinistic attitudes towards women. The constitutional provisions on gender rights must be vigorously applied and gender discrimination must be rooted out at every level of the society. The criminal law should play a key role in upholding and advancing the rights of women in line with the constitutional provisions.

A CASE OF GENDER VIOLENCE The criminal law must deal effectively with gender-based violence. For instance, the criminal law must severely punish a man who responds with violence towards a woman when he misguidedly believes that he is entitled to special privileges from the woman and she refuses to grant him these privileges. Such an attack must be condemned under the criminal law in order to disabuse the accused and like-minded men of these mistaken notions. The case of S v Jeri6 shows how the criminal courts can play an important role in this regard. In this case a man violently attacked and killed a woman simply because of her rejection of his sexual advances towards her. The woman was working at a bar serving food and drinks. The accused approached her and when she rejected his sexual advances, he slapped her,

6 HH-516-17. 262 University of Zimbabwe Law Journal 2018 pushed her against a fridge and head butted her. To protect herself the woman hit him with a bottle. Efforts were made to try to restrain the accused from further assaulting the woman but the accused was now in a frenzied rage and he took out a knife and stabbed the woman in the stomach which led to her death. At the time of the stabbing the deceased was standing behind a patron who stood as a buffer between the accused and the deceased. The court convicted the accused of murder, rejecting the defences of self-defence, provocation and voluntary intoxication. As regards self-defence, the court found that at the time that he stabbed the deceased, the accused was the aggressor who was intent on causing harm to the woman. He was not protecting himself as the deceased no longer had a bottle. But even if she was still holding a broken bottle piece as alleged by the defence, it is clear that the accused was not under attack as the woman had sought protection by locating herself behind a patron. As regards the defence of provocation, the court found that this defence did not apply. The accused had at least legal intention to kill and, under the second stage of the provocation was certainly not such that it would have caused a reasonable person to completely lose self-control and cause death and thus to reduce murder to culpable homicide. Finally, voluntary intoxication was not a defence to an intentional killing although it could be a mitigatory factor in appropriate circumstances. Tsanga J explored in detail the gender-based motivation for the fatal attack, pointing out that the accused acted to avenge the supposed affront to his manhood and to “show her who was master.” His attitude arose from “the dangerous perception that a woman’s ‘no’ does not mean ‘no’ and more significantly that a woman does not have right to make independent decisions about what whom she likes or does not like and whom she wishes to associate with or not to associate with.” The fact that “the accused had at least three girl friends at the same time, lead to the conclusion that the accused was clearly a man not accustomed to women saying no to him. He obviously perceived his manhood to have been challenged due to his own dangerous sense of entitlement in his dealings with and perceptions of women.” UZLJ Case Notes 263

The court observed that the accused and his defence counsel had regrettably unfortunately trivialized the killing by seeking to depict the deceased and her fellow female bar worker as “no more than prostitutes and drunkards.” The accused wrongly believed that the deceased had no right to say no to his advances because she was a sex worker. The court pointed out that even if the deceased was a sex worker, she was still entitled to her dignity and not to be subjected to violence. Further even if she was a sex worker, she was not engaged in sex work on the fatal evening. The court went on to say: The suggestion appeared to be that any woman who sets foot in a bar or works in bar must be perceived to be a prostitute and a drunkard. This demonising of women who do not fit society’s framework of the moral woman in society in fact shows the depth of patriarchal perceptions of women to which even counsel are often not immune. The judge observed that dignity and freedom from violence are integral to the rights of women in all spheres of their lives and women should never be treated as objects without rights. The accused’s conduct was clearly a violation of these rights. The court summed up the obligation of the court when dealing with cases of gender based violence as follows: As courts, it is our duty to be alive to the constitutional imperatives and to make the gender connections from the everyday cases that we deal with. The motivations for the assault were clearly gendered and to fail to speak to the gender dimensions of this case would be to legitimise gender based violence within the criminal justice system. Our efficacy as courts in addressing gender based violence rests in ensuring that the criminal justice system speaks to the lived realities and experiences of all its victims. Equally important is showing our appreciation and understanding of the manifestations of gender violence in the cases that we are confronted with. Such open recognition in the cases that we deal with, helps to put into gender violence into the consciousness of the law and society in general from the perspective of the courts thereby aiding the process of change. 264 University of Zimbabwe Law Journal 2018

Having convicted the accused of murder, the court then turned to the question of sentence. It stated that a factor to be considered was “the need to send a clear message on the lack of tolerance for violence in general and gender based violence.” The sentence should be such that it gives the offender a real chance to be rehabilitated and to change his views about women. In fostering respect for women, much will depend on whether there are any conscious efforts directed at rehabilitating him in this regard whilst he is in prison. The accused was sentenced to imprisonment for fifteen years.

CONCLUSION The judgment in the Jeri case shows how the courts should approach cases involving gender-based violence. The courts have an obligation to base their judgments in such matters squarely on the constitutional provisions on the rights of women. They need to make it quite clear that violent behaviour arising from erroneous male misconceptions and prejudices about their right to dominate women will be severely dealt with.