Zimbabwe: Circumventing the Constitution through authoritarian legalism

D. TINASHE HOFISI* 

Heavy police presence at the Harare Magistrates Court when Jameson Timba and other activists were denied bail. 

Introduction 

If you are not in Zimbabwe’s entertainment circles, you would be unfamiliar with Vusumuzi (Vusa) Moyo, the sound engineer that Samanyanga trusted for all his live shows. He is highly regarded in the music industry. On 2 August 2024, he was hauled off an airplane on his way to the African Philanthropy Conference in Victoria Falls together with activists Namatai Kwekweza, Robson Chere, and Samuel Gwenzi. 

Vusumuzi Moyo 

They face charges of disorderly conduct in a public place, and their bail application was denied on 16 August 2024. These four join scores of detainees, ranging from Jameson Timba to Jacob Ngarivhume, who were arrested ahead of the SADC Summit on charges related to organizing, or participating in, an unlawful gathering. This clampdown is at odds with the 2013 Constitution's liberal approach to rights and freedoms. 

In this post, I explain how these arrests are in pursuit of authoritarian legalism, a strategy that uses law enforcement to circumvent the Constitution. I do not seek to present the Zimbabwean case as uniquely bad or insoluble. 

Challenges with criminal justice are a truly global phenomenon. Rather, the post situates the Zimbabwean scenario within the literature on institutional choices by government actors in the face of adverse court rulings.

Prolonged Detention 

I use the term “prolonged detention” to denote extended pre-trial captivity beyond forty-eight hours. At the expiry of forty-eight hours after arrest, the police must present an accused person before a court or process their release. The Magistrate's Court is the court of initial appearance, which reviews the propriety of every arrest. 

If the court does not release the person, they are handed over to prison officials. The most noticeable sign of prolonged detention is that light green prison garb, sometimes worn with red and white jerseys. Prolonged detention was not deployed consistently against activists for unlawful gatherings. It was a feature of cases involving more serious offences, such as those listed in the third schedule of the Criminal Procedure and Evidence Act (CPEA). These are crimes for which bail is reserved for the High Court. 

Members of ZAPU, like Dumiso Dabengwa and Lookout Masuku, endured prolonged detention in the 1980s following the disturbances in the south and southwest of Zimbabwe. In the 2000s, politicians like Phillip Chiyangwa, Morgan Tsvangirai, and MDC activists facing charges related to a spate of petrol bombings all suffered prolonged detention. 

Statutory Instrument 37 of 2004 permitted prolonged detention for those charged with economic crimes for up to four weeks, affecting business people like James Makamba, Chris Kuruneri, Nyasha Watyoka, and Gilbert Muponda. In the 2010s, the MDC activists accused of murdering a police officer, Inspector Petros Mutedza, were also famously detained for an extended period. 

In all these cases, there was clear statutory authority for the extended period of confinement. It was linked to the nature of the offences charged, ranging from corruption to murder, treason, and participation in banditry, sabotage, insurgency, and terrorism. 

As a corollary, human rights activists were seldom seen in prison garb. This explains why there is no image of Strendrick Zvorwadza in prison garb. Neither is there one of Professor Lovemore Madhuku, who could organize a National Constitutional Assembly (NCA) demonstration on Monday, be taken to court on Wednesday, and be out in time for his Thursday lecture. 

This changed just before the 2010s when Jenny Williams and Magodonga Mahlangu were denied bail and sent to Khami Prison. In the mid-2010s, activists like Linda Masarira were detained for extended periods and by the end of that decade, prominent lawyers like Fadzayi Mahere had been pictured in the dreaded light green. I distinguish this phenomenon from prolonged detention for flouting bail conditions. 

Currently, cases with activists relating to unlawful gatherings seem to be treated as de facto third-schedule matters. In other words, even though the Magistrates' Court may entertain a hearing, bail will only be granted at the High Court. 

In the next section, I detail how the criminal justice system shifted towards treating ordinary demonstrators as though they face serious offences without a change in statute law and what motivated this change. 

Section 27 of the Public Order and Security Act (POSA)

We begin with section 27 of POSA, which gave the police formal power to ban public gatherings for up to one month. It was a handy tool for pre-empting any plans for multiple demonstrations. Thus, when Morgan Tsvangirai proclaimed a "winter of social discontent and democratic resistance” in 2007, the police prohibited demonstrations in various districts of Harare and Chitungwiza. Consequently, the Save Zimbabwe Campaign dubbed its 11 March 2007 gathering a prayer meeting as a religious exemption from the scope of POSA. 

The infamous images of Morgan Tsvangirai’s battered face and Professor Madhuku’s bandaged head and arm in a cast are the direct result of their willingness to confront suppression of rights with creative defiance. Nine years later, Zimbabwe found itself on the precipice again with successful campaigns by pressure groups, including Tajamuka/Sesjikile, Occupy Africa Unity Square, and #ThisFlag. The police invoked section 27, which was challenged at the High Court in terms of the new Constitution’s right to demonstrate and petition. 

The details of this case highlight the importance of section 27 to the state. Justice Priscilla Chigumba’s provisional order invalidated the ban, but she suspended her order to allow the police to rectify the violation, which was a sophisticated way of keeping the prohibition in place. Yet the media backlash against the judge was swift, and the matter was switched to Judge President George Chiweshe, who, on the return date, upheld section 27 as reasonably justifiable in a democratic society. 

The Constitutional Court overturned Chiweshe’s judgement and invalidated this provision. Writing for the Court, Justice Rita Makarau underscored that the right to demonstrate and petition peacefully is one of the “…vivid ways of the public coming together to express an opinion in support of or in opposition to a position.” I would add that this right is even more critical in countries with harmonized elections, as avenues for democratic accountability are limited in the periods between elections. 

Circumvention of Court Ruling

The Constitutional Court’s decision left the state at a crossroads. In his work on courts, Martin Shapiro describes the four potential responses by the state to adverse court rulings. A regime can conform with, or contravene the court’s decision. It might also constrain the court by ousting its jurisdiction, or capture it through strategic appointments and promotions. 

The Zimbabwean state seems to have chosen a fascinating new option: circumvention. Sidestepping the decision. Conformity without conforming, or contravention without contravening. Section 27 is no longer extant. It is not on the statute books, and the police no longer issue blanket bans on public demonstrations. 

However, they ramp up enforcement of laws that criminalize organizing or participating in illegal gatherings during key events. Whether it is a 31 July demonstration by Jacob Ngarivhume or the SADC Summit, the police target potential demonstrators for arrest and detention. 

Having been stripped of the ability to issue de jure prohibitions, the police resort to excessive law enforcement to produce de facto blanket bans. This is what I term authoritarian legalism. Excessive policing that may nominally comply with court judgments, but substantively undermines the rationale for those rulings.  

The current arrests can, therefore, be understood as part of a systemic response to the loss of formal legal power. This new approach could easily be foiled by the right of release within forty-eight hours or be presented in court, yet accused persons are often delivered to court late in the afternoon or early evening when bail applications cannot be concluded, ensuring the right is circumvented. 

Further, even though bail is a fundamental right, treating cases of illegal gatherings as serious matters akin to third-schedule offences has resulted in the denial of bail not only for activists, but even ordinary sound engineers. This highlights another feature of the criminal justice system, what some have colourfully called the Pontius Pilate predicament. Treating these allegations as potentially grave infractions incentivizes a chain of strategic deflection from the police station, to the prosecutors, all the way to the High Court. Officers within the administration of justice are unwilling to face charges of criminal abuse of office for securing the release of a person facing serious charges. They would rather wash their hands and leave it to the High Court. 

This is particularly deleterious since the Magistrates’ Court is the court of initial appearance where the propriety of the arrest is reviewed. Even within the High Court, there is a growing sentiment among legal practitioners that judges promoted from the Magistrates’ Court have continued an unduly restrictive approach to personal liberty, as noted by a sharp decrease in applications when these judges preside over the bail court. 

The reasons for this new attitude towards demonstrations are beyond the scope of this post. It might be an association of protests with the toppling of a sitting regime because of the events in November 2017. Or it may be due to the violent excesses of the demonstration on 1 August 2018 and the mass stayaway in January 2019. 

It may also be fueled by a desire to restrict CCC’s stated goal of using SADC to litigate their misgivings with the last elections. Overall, it would appear that the demonstration in support of the military intervention in 2017 has not democratized the nation’s security, but allowed a gradual securitization of the nation’s democracy.

Conclusion 

In a viral video, Robert Mugabe described what he called the Madhuku Strategy for Survival. He framed public protests as a fundraising scheme by desperate activists who rely on getting arrested to allege human rights abuses. 

As Tazzen Mandizvidza joined some in unbridled laughter, an important question was left unanswered: if arrests are indeed central to activists' ability to secure funding, why are the police so eager to indulge them? Would it not be in the national interest to call the activists' bluff and allow them to march, dance, and sing their voices hoarse as the police are deployed only to protect property, human, and vehicular traffic? 

Is there no value in Jacob Zuma's observation that demonstrations signify a healthy democracy, and their absence signals authoritarianism? 

How many Zimbabweans feel safer knowing a sound engineer remains in remand prison together with Namatai Kwekweza and others? 

These strategic choices have produced the counter-intuitive outcome of a liberal Constitution undermined by criminal injustice and authoritarian legalism. 

*This article was written by D. Tinashe Hofisi in his personal capacity and was first published on https://hofisi.blogspot.com/

D. Tinashe Hofisi is a Postdoctoral Global Hauser Fellow at New York University School of Law. He has a Doctorate of Law from the University of Wisconsin-Madison and a Master of Laws from Loyola University, Chicago. Tinashe's undergraduate law degree is from the University of Zimbabwe and he worked on constitutional litigation with the Zimbabwe Lawyers for Human Rights for seven years.