IT was quite intriguing listening to the Chief Justice Luke Malaba urging Zimbabweans to respect constitutionalism.
He made these comments while opening the country’s 2024 legal year this week in the capital Harare.
Surely, who can find fault in a remark by the country’s most senior judicial officer urging each and every one of us to religiously adhere to the country’s supreme law? The law is the cornerstone of any civilised society — if it is pro-people and deliberately designed to foster democracy.
The Constitution is critical in safeguarding the citizenry’s rights as well as clearly define their responsibilities. Equally important are demarcations on what citizens can expect from their government.
However, it becomes a huge problem when a government is wont on defying the sacrosanct document. This is, unfortunately, the tragic reality we face in Zimbabwe.
As much as Malaba may implore the nation to respect constitutionalism, who is holding our leadership to account when they violate those sacred tenets contained in our Constitution daily? For starters, I found it quite comical hearing words such as “respect for constitutionality” coming out Malaba’s mouth.
Who can forget the huge controversy that surrounded the amendment of section 186 (1)(a) — in which the retirement age of serving court judges was moved from 70 to 75 years old?
This term limit extension was not supposed to benefit those who occupied the particular office before or during the amendment, according to section 328(7) of our Constitution. Nonetheless, Malaba — who turned 70 years old in May 2021 — benefitted, as the new law was passed just a few days prior to his retirement.
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Respect constitutionality, my foot!
Be that as it may, there is another pressing matter I want to interrogate regarding constitutionalism.
One of the most vital indicators of a genuine democracy is the right to peacefully demonstrate. A country which respects its people’s rights allows its citizens to freely and peacefully demonstrate whenever they have genuine grievances they feel are not being addressed.
Do we not watch the French protesting nearly every month or Americans go onto the streets for numerous reasons, or the British converge in different parts of their kingdom, making various demands? This is what democracy is all about.
In Britain, for instance, people have been regularly marching on the streets for the cause of the Palestinians in the wake of the ongoing war with Israel. These protests have largely gone uninterrupted, except once in a while to control overzealous demonstrators.
The protests in Britain highlight the beauty of democracy — particularly considering that the British government has already made it abundantly clear that they stand with Israel.
Granted, there is no nation on this planet with a perfect democracy, but, generally, we cannot help but admire these countries.
We, conversely, are in a country where an opposition leader can be sentenced to four years in prison.
His crime?
Merely urging oppressed impoverished citizens to go onto the streets to peacefully demonstrate against rampant corruption and mismanagement by the ruling elite. This is exactly what happened to Jacob Ngarivhume — who was only freed from jail following an appeal to the High Court after having already spent eight months in maximum prison.
In their ruling, High Court judges of appeal Pisirayi Kwenda and Fatima Maxwell noted that the State failed to prove a prima facie case in charging Ngarivhume. In other words, the opposition leader had not only been found guilty, but also sentenced to four years in prison on baseless allegations that lacked the most basic evidence.
So why was he even arrested, let alone jailed in the first place?
The answer is simply that this is Zimbabwe where anyone urging citizens to exercise their democratic right to peacefully demonstrate is regarded as an enemy of the State who should be treated as an outlaw.
Let us remember that this right is actually enshrined and protected in Section 59 of the Constitution. As such, those calling for peaceful demonstrations are not breaking any law – but, in fact, following it.
Only a few days ago, we witnessed the country’s law enforcement “assuring Zimbabweans” that they were ready to maintain law and order and would descend heavily on those intent on “disturbing the peace” after a very small group of activists called the Job Sikhala Solidarity Council announced plans to stage several peaceful demonstrations to protest over Sikhala’s continued incarceration while being denied bail.
The group, led by renowned labour unionist Obert Masaraure, is demanding justice and the immediate release of Sikhala — seeing the unconstitutionality of his continued incarceration. Nonetheless, the response by government has been nothing short of hysterical, for lack of a better word.
In a country which respects constitutionality — in line with the Chief Justice’s statement — should the police’s first reaction not be to guarantee the provision of adequate personnel to ensure these protests proceed without incident? That is what we expect in a legitimate democracy.
When citizens call for peaceful demonstrations, the first and automatic response should never be to bar them or accuse the organisers of being “nefarious”. What is “nefarious” about exercising one’s constitutional rights?
Constitutionality dictates that government sanctions these demonstrations and provides the necessary support to ensure they go ahead unmolested and peacefully. In fact, is that not what we witnessed in November 2017, when Zimbabweans flooded the streets demanding the resignation of then president Robert Gabriel Mugabe?
Or maybe we were fooled into supporting a coup d’état because immediately after Mugabe left office we began to see the true colours of our “democracy” as we witnessed citizens being shot in the streets for protesting over delayed announcement of the July 2018 poll results.
Since then, any talk of protesting has been brutally blocked by government through the police force.
Now, I ask again. When Malaba was speaking about the need to respect constitutionality, to whom was he referring?
I do, honestly, hope he was talking to the Government of Zimbabwe, as they are the ones at the forefront of the wilful disregard of this sacred document. Those who need to hear this message are not in the opposition nor the ordinary man, woman or child on the street.
These words have to be directly spoken to and heard by the people in the highest echelons of power in Zimbabwe.
Tendai Ruben Mbofana is a social justice advocate and writer. Please feel free to WhatsApp or Call: +263715667700 | +263782283975, or email: mbofana.tendairuben73@gmail.
