For the past 15 years, I have written on a fairly regular basis on law and politics in Zimbabwe.
I first left Zimbabwe in 1999 on an educational scholarship, to read law at Warwick. This was an exciting time in Zimbabwean politics, and before I left, I was caught up in two minds.
I knew that some of my colleagues were putting together a new political party, the Movement for Democratic Change, which would go on to shake the foundations of Zimbabwean politics, which for years had been dominated by Zanu PF.
But one of my law teachers, Professor Welshman Ncube, who was among those at the forefront of creating the new political party advised that as Zimbabwe would in future stand to benefit from its young and educated it was important that they go out and learn the ways of the world.
Zimbabwe would still be there and I would in future serve in some capacity. As it turned out, he was absolutely correct.
At university, I had never been at the forefront of student politics, but I often occupied a back-office role, advising and sharing ideas with the student leadership, a role that, as it turned out, I would play once again at national level.
I also recall advising the then President of the SRC, Learnmore Jongwe that he could leave a legacy of constitutional reform of the Students’ Union. He formed a constitutional reform committee in which I played a modest role in the constitutional reform project that saw the overhaul of the UZ students’ union constitution. As it turned out again, just over a decade later, I would be called upon to play a similar role at national level, when Zimbabwe was writing a new constitution.
When I left Zimbabwe, the idea was that I would be away for just a year. I would do my Masters’ degree, and return home to carry on from where I had left. But time, ever the magician, had other ideas.
The year 2000 saw great changes on the political scene in Zimbabwe. For the first time, Zanu PF lost a political contest when the draft constitution which was sponsored by the government was rejected by the people at a referendum in February 2000.
But this was more than just a plebiscite on the constitution. Rather, in political terms, it was a vote of no confidence in Zanu PF as the governing party. It was an indication that people were ready to vote against it and what it stood for. Likewise, it was a massive boost for the new opposition party, which claimed victory for the No Vote in the constitutional referendum.
But this political stumble also became the wake-up call that a complacent Zanu PF needed. Realising the risk of an imminent loss of political power to the new opposition, Zanu PF re-grouped and launched a violent election campaign combined with a new accelerated programme of land reform which involved forced and often violent eviction of white commercial farmers. This helped Zanu PF to retain control of Parliament but only just, since the MDC made huge gains in a manner that no opposition party had ever done since independence.
Politics in Zimbabwe had changed and would never be the same again. Gone was the threat of the one-party state, but this also ushered a new era of intense and often violent contestation for political power, something that has persisted since that period. The political turmoil and attendant factors impacted negatively on the entire economy, leading to a crisis that has reduced Zimbabwe to one of the weakest economies and poorest countries in the world.
Meanwhile, Warwick had offered me a place to pursue doctoral studies. Previously, I had not contemplated pursuing that route, certainly not at that early age. But after giving it some thought and some persuasion from my Professor, I decided to take the plunge, as it were. And so I started my doctoral studies but this meant a few more years away from home.
It was a painful period, being away from home when so much was happening. I was also not very impressed by some of the narratives and representations of home in the international media and I started writing to give my own perspectives. We Zimbabweans could write our own story, too, I thought.
But one thing that concerned me the most was the manner in which the law was being used and misused by the government back home. As a lawyer, I thought these myths about the law needed to be debunked.
Law, by its very nature, is traditionally couched in complex and inaccessible language. I had always been concerned, from my earliest days as a law student, by that maxim ignorantia iuris non excusat (ignorance of the law is no defence) because I thought it was not fair on the majority of the people, who had no access to the law. In Zimbabwe, the operating legal system was based on Roman-Dutch law and yet more than 90 per cent of the population had no clue whatsoever what this was all about.
They had their own traditional legal system, which they had developed over centuries but this only applied for a small and minor part of their lives. The rest of the critical bits were guided by Roman-Dutch law and legislation, which, by this maxim, they were presumed to know. I always thought that was not fair.
But I also saw how the government was using the law in similar ways, confusing and limiting people’s freedoms in the process. Law was an instrument that was deployed to mystify and justify things that were wrong.
In those days, the Zimbabwean state progressively became more repressive. Laws regulating the media in restrictive ways (AIPPA) and limiting freedoms of expression and assembly (POSA) were passed by the government.
POSA (the Public Order and Security Act) was essentially the reincarnation of the Law and Order (Maintenance) Act, the repressive colonial piece of legislation, which ironically, had been used by the colonial governments to imprison and detain liberation struggle leaders. These leaders were now running government but they had resorted to the same legal instruments that had been used against them! They did this with a straight face, without any shame or hint of irony at all. It needed to be said that in this regard, the liberation they talked about was merely rhetorical and not backed by substance.
AIPPA (Access to Information and Protection of Privacy Act), introduced new licensing and registration requirements and other severe restrictions on media houses and journalists. It was under this law that the then major private and anti-government daily of the time, The Daily News was banned in 2003. It had been the proverbial thorn in the flesh of the ruling party.
The government would also amend the Electoral Law at its pleasure and in ways that negatively affected the electoral landscape for the opposition parties. It was impossible to have free and fair elections under those conditions.
The courts, which would have been expected to check the powers of the government were no better. I recall writing some stinging criticism of the Supreme Court’s judgment in a case which resulted in the closure of The Daily News, when the court surprisingly used the Clean Hands Doctrine, a doctrine of equity, to bar the newspaper company from bringing its constitutional challenge. The court said the company had ‘dirty hands’ because it had refused to comply with the law and therefore could not come to court to challenge the same law.
It was a bad judgment which had set a dangerous precedent for constitutional litigation. I felt so strongly about the threat of this precedent that when I had the opportunity to advise on the writing of the new constitution, I made sure there was a clause which prevented the courts from refusing to hear constitutional challenges on the basis of this Clean Hands doctrine.
The law enforcement and prosecution authorities were also not helpful, the biggest problem being the selective application of the law. Opposition supporters would often receive rough treatment from the police, even if they reported offences committed against them. Prosecution authorities were notorious for invoking Section 121, a provision of the criminal legislation, which allowed the state to keep an accused person in custody, notwithstanding that the person would have been granted bail by a court of law. This provision gave too much power to the prosecution authorities, which power was often abused. Later, a judge of the High Court would issue a strong rebuke to the prosecution authorities for this abuse of power.
All this meant that the law was at the centre of political power games in Zimbabwe. The law was quite plainly an instrument of repression. It gave the government the excuse that they were complying with the rule of law, even though these laws were a violation of fundamental rights and freedoms, and even though there was obvious selective application of the law.
It was against this background that I often wrote about the difference between constitutionality and constitutionalism, arguing that the rule of law and constitutionalism were far more than mere compliance with the law but that the law should protect fundamental rights. The Zimbabwean state, I argued, was more concerned with constitutionality, but had little concern for constitutionalism and this was wrong.
I wrote because I abhorred the abuse of the law by the state and its agencies under the direction of the ruling party. I wrote in order to challenge the manner in which the law was being abused to advance partisan political interests. It was important to provide some illumination on the law, to demystify the law and make it more accessible to the ordinary people.
Later, I would be invited to take part in the constitution-making process, where I advised the committee that was leading the writing of the new constitution. It was a priceless honour. From writing blogs and newspaper pieces, this was finally an opportunity to put those things in the supreme law of the land. What came out in the end is by no means perfect, but I believe it is, in many ways, a step in the right direction. As I have always said, a constitution on its own is not enough. It needs good men and women who are dedicated to enforcing the values and principles that sustain it.
I was also invited to work with the leadership of the MDC, the men and women I had left forming a party in 1999, when I came to the UK. Now I was coming back home to play my part. I had thought I would do that after one year in the UK but I had had to wait more than ten years. I worked with the then Prime Minister of Zimbabwe, Mr Morgan Tsvangirai, as his advisor. It was a great honour, too and a privilege which cannot be captured in words. I gave my all and learnt a lot about politics during that tenure.
It also gave me unique and practical insights into politics in Zimbabwe. It also gave me a chance to understand the political terrain and in particular, the challenges faced by the opposition in Zimbabwe and the characters who shape the general political landscape.
One important lesson, which seems obvious but must be emphasised, is that the story of Zimbabwean politics is certainly not a single narrative. It is complex and often has conflicting strands. Certainly what appears from the outside can be and often it very different from what actually happens inside the political arena. Now, when I comment on politics in Zimbabwe, it is with the eye, ear and hand of one who understands these nuances, thanks to the vantage position that I was privileged to occupy.
All these experiences, as a student and academic in the UK, a keen political observer, an adviser in the constitution-making process, and an adviser to one of the key political figures in Zimbabwe’s recent political history, have equipped me with tools and skills that I bring to the table to offer insights into Zimbabwean politics.
We will not always agree. We do not have to. My purpose here is to share my own personal insights. I will endeavour, as I have always done, to be objective in my analysis, even though by virtue of my political location, I will forever be identified with the opposition forces. I cannot apologise for that, as this is something that choice and experience have bestowed upon me.
Nevertheless, this political location will not stop me from offering critical insights into the opposition. I believe if there is to be progress in Zimbabwe’s political culture, there should be no sacred cows in politics. A good friend is not the one who tells you all the nice things you want to hear, but one who occasionally points to the stains on your shirt that you yourself cannot see.  A friend who does not tell you that seam at the back of your pair of trousers is broken is no friend at all. Therefore, colleagues in the opposition should also expect critical commentary as much as they celebrate critical commentary against their rivals.
