Zvikomborero Parafini, H-Metro Reporter
Zimbabwe turns 40 on April 18 and there has been many changes in terms of the rule of law from the pre independence era.
H-Metro caught up with senior lawyer Jonathan Samkange in a wide ranging interview on the rule of law in Zimbabwe before and after independence.
Born in Mudzi South, Makaha, Katsande Village, Samkange began law school in 1976 at University of Rhodesia and consistent to discrimination against black citizens, which characterised Rhodesian Settler rule, access to legal education was deliberately and almost totally denied to blacks until Zimbabwe’s independence in 1980.
Q: How was the rule of law in Zimbabwe, both before and after Independence and how were laws made before independence?
A: Well, before Independence, it depends on which stage you mean. We have three stages, the first one was Southern Rhodesia which was led by Cecil John Rhodes as its Prime Minister. They used the British Police to enforce laws which were manifestly discriminative to blacks. Southern Rhodesia was run by a charter and the laws came from Britain, there was no parliament that time. After that we then have the Federation and after that we then have Rhodesia Rhodesia which was declared by Ian Smith as an Independent state through the Unilateral Declaration of Independence (UDI). During Federation there was a parliament which is completely different to the one we have now, blacks were not represented at all. The Chiefs were represented though, in what they called a council of chiefs. The most notorious Chiefs were Ndiweni and Chirau. During the UDI, initially only whites were elected for parliament and later on they had a few blacks such as late Chief Justice Chidyausiku, that’s the one I remember well wearing his camouflage.
Later on towards the end, there was Zimbabwe-Rhodesia so in fact there were four stages, Abel Muzorewa was the Prime Minister in that stage.
Q: Did people adhere to laws in the pre-independence stage?
A: No. Towards the end of Rhodesia-Zimbabwe represented by Abel Muzorewa, the liberation war was in full swing now and majority of us Zimbabweans didn’t adhere to the laws that had been created by the whites, for the whites.
Q: Was there lawful treatment for those who didn’t obey the laws?
A: No. Lawful treatment wasn’t even an issue; it wasn’t even considered at all. It was purely arbitrary legislation.
Q: What were the major human rights abuses?
A: There were no human rights for blacks, naturally because blacks were arrested arbitrarily, arbitrary trials, everything as far as I’m concerned was unfair, and there were kangaroo courts.
Q: Let’s look at the post-independence era, how were laws made after Independence?
A: Well after independence there were two stages, immediately after Independence, whites were represented in terms of the Lancaster House constitution. Although they were a minority population, they had 20 seats that were reserved for them, they couldn’t possibly be elected in terms of the majority but they had to be represented. The second stage was after 10 years, when the whites no longer had the reserved seats, everyone now had to be elected and they didn’t constitute the majority.
Q: Is there lawful treatment of those who don’t adhere to the laws?
A: It all comes down to what you consider to be lawful treatment. I think immediately after independence, the late (former President) Mugabe tried his best to ensure that we have equality before the law but later we saw the coming of the opposition in force and things changed.
Q: Did the white versus black treatment exist after independence?
A: Initially after independence, the whites were protected and had special seats as per the Lancaster House constitutions, they were represented without elections. But after it lapsed, both blacks and whites had to be elected fairly through elections as it is today.
Q: Herbert Chitepo was the first black lawyer in Zimbabwe, why were there a few lawyers?
A: It is alleged, that he was the first black lawyer in Zimbabwe, obviously by prominence. History says so but I personally cannot say he was the first it would be unfair for me, no one has carried out an empirical research as to determine that he was the only one. We could have had some other black lawyers who were practising outside the country but he being a black lawyer who was a politician just like Parirenyatwa who was a politician and also a black doctor, that’s why he carries out prominence. Speaking from an historic and academic perspective, unless proven by a research, it remains an allegation, I want you to take that into account.
When I went to University in my time, there was a pamphlet at the School of Law which said blacks were discouraged to become lawyers because after qualifications they wouldn’t get jobs as lawyers, they wouldn’t be employed as prosecutors or magistrates, in fact, they wouldn’t be employed by the Ministry of Justice. As a result, black lawyers ended up being teachers or joining political parties and that discouraged them from joining Law School. I still have that pamphlet, the department specifically discouraged blacks from studying law.
Q: What are the circumstances like now for people who want to join the legal profession?
A: After independence it became easier for any Zimbabwean to study law, we abolished the two-tier system that was there, on one hand we had advocates and solicitors on the other hand. We now have the Legal Practitioners Act which abolished the Advocates system. If you look at the law you will not find where it says advocates, it is a title that doesn’t exist. It has caused a lot of confusion as some people call themselves advocates without studying to be advocates. This is why Advocates today charge whatever it is because they aren’t governed by the law.
Q: Is the rule of law being upheld in Zimbabwe?
A: Yes. The rule of law is quite a loose term, which assumes that everyone is under the law, is governed by the law and that no one is above the law including the President. Everyone must be under the law, and respect the constitution as the supreme law. From an academic point of law, there is rule of law in this country. No one is above the law, the police must obey court orders and the only one who can impose a punishment is the court.
Q: Zimbabwe is celebrating 40 years of independence. As a lawmaker, do you think the ideals of independence are being respected?
A: The ideals and values of independence are being respected definitely. We want more than just ideals though; I’d want to make sure that all our laws are being observed.
We want court orders to be observed and respected; there’s no point in someone getting a court order and it being disobeyed by the police.