Thirteen years ago, on 11 September 2003, the Supreme Court of Zimbabwe passed an important judgment whose effect on citizens’ access to the courts of law in human rights litigation was fundamental. It was a disaster for aggrieved citizens who wished to approach the courts to pursue human rights grievances against the state. It became known as the “Clean Hands Judgment”, on account of its reliance on the Clean Hands Doctrine, whose nature I will explain in a moment.
Immediately after the judgment, I wrote a critique of it, concluding that the Supreme Court had made a fundamental error. It was our September 11 moment for human rights in Zimbabwe and the first line of that article said, “AS Americans commemorated the tragic events of September 11 2001, Zimbabwe silently witnessed a major assault on human rights …”
As 11 September falls on this weekend, I decided to dedicate this article to that seminal moment. But this is a story with a good ending. This article also explains how that disastrous judgment was eventually reversed and overcome through the new Constitution. In that respect, this article also gives some insight into the constitution-making process. First, however, I must recapture what the Clean Hands judgment was all about and explain why it was a disastrous judgment.
The “Clean Hands” judgment
In 2002, the government passed a new law which radically transformed the regulation of the media in Zimbabwe. It was the notorious Access to Information and Protection of Privacy Act (AIPPA), a law that still exists, albeit precariously, on the statute books. The new law required media companies and journalists to apply for registration with the Media and Information Commission (MIC), the regulatory body. Associated Newspapers Zimbabwe Pvt Ltd (ANZ), publishers of the Daily News resisted the new law and did not apply for registration. Instead, they challenged its legality at the Supreme Court, contending that it was unconstitutional.
When the matter came before the Supreme Court, the judges dismissed the application on the basis of the “Clean Hands” doctrine, holding that since ANZ had not complied with the new law which they were challenging, it had approached the court with dirty hands. On that account, the Supreme Court refused to hear the constitutional application and effectively closed the door on ANZ.
This judgment paved the way for the closure of the Daily News. This caused an outcry, as the Daily News was probably the most popular and best-selling newspaper at the time. The consequences were drastic as the ban on the Daily News lasted for 8 years. It was relaunched in 2011, during the tenure of the Inclusive Government, following a relaxation of media regulations. But 8 years in the wilderness had taken its toll. When the paper returned it was a different political environment from the one in which it had departed in 2003. Things have not been the same again.
Legally, that judgment was problematic for many reasons. It was jurisprudentially unsound and dangerous for human rights. When I wrote my critique back in 2003, I stated that it was a remarkable and shocking decision which represented a major setback for the protection and enjoyment of human rights in Zimbabwe. It was the first time that the Supreme Court had applied the Clean Hands doctrine to bar a litigant in a matter involving fundamental rights. I questioned the appropriateness of applying a doctrine usually applied to equity in the field of constitutional law. I argued that the Supreme Court had misapplied this doctrine to operate as a bar to the pursuit of constitutional remedies.
When applied in equity, a different branch altogether, a party is prevented from seeking equitable relief or to assert an equitable defence if that party has violated an equitable principle such as good faith. Such a party will be regarded as having dirty hands. Thus the Clean Hands doctrine bars equitable relief to persons who are guilty of misconduct in the matter for which they would be seeking relief.
Equity is a separate branch which refers to a set of doctrines, remedies and associated procedures which are normally distinguished from the “legal” ones. Equitable relief is generally available when a legal remedy is insufficient or inadequate. In the old days in England where the distinction arose, there were even separate courts of law and equity. These equitable remedies were designed to provide fairness, unhampered by the narrow confines or of the Common Law or technical requirements of legislation. Nevertheless, in modern days separate courts of equity have largely been abolished and the same courts can award both legal and equitable remedies. However, as an equitable rule extended to the domain of law, it is necessary to apply the Clean Hands doctrine with greater caution, more so where fundamental rights are involved.
My critique was that the ANZ case was not one of equity, but one which involved fundamental human rights and the court should have been more cautious in applying the doctrine. What was even more surprising was that the Supreme Court’s decision was unanimous, which meant that no member of the Supreme Court had seen nothing amiss in the misapplication of this doctrine and particularly given its implications in relation to constitutional rights.
The implication of the law was that any person who might have been accused of doing something illegal under a law that they were challenging could not approach the Supreme Court to challenge it because he would be deemed to have dirty hands. Thus for example, the rule could bar convicted persons from challenging the constitutionality of laws under which they would have been convicted simply because the conviction would have rendered their hands unclean. Likewise, a person who might be accused of offending a law would be barred from challenging the constitutionality of the law on account of his or her so-called dirty hands. This was a dangerous rule whose effect was to restrict the right of access to the Supreme Court to challenge the constitutionality of laws.
I also argued that the Clean Hands doctrine had the effect of subordinating the Constitution to legislation. It would force citizens to comply with unconstitutional laws even against their conscience. The implication was that if a citizen was faced with a patently unconstitutional law, they had no choice but to comply with it before taking a challenge to the Supreme Court. If they went to the Supreme Court without complying, they would be dismissed on the basis of having dirty hands. This would mean the ruling party could, at any time, exercise its parliamentary majority to infringe fundamental rights knowing very well that people will be forced to comply as they could not approach the court because if they didn’t they would be regarded as having dirty hands. Yet if the Constitution is the supreme law of the nation, surely, citizens are entitled to give it priority or to demand that it be given priority. Between legislation which offends the Constitution and the Constitution itself, citizens should ideally uphold the latter. It is true that there is a presumption of legality in respect of legislation, but this presumption cannot operate to force a citizen from doing what is patently illegal. In any event, when a citizen has challenged legislation, he has not disobeyed it. Rather, he has simply exercised his right to challenge the law and if the courts rule that he must comply, he should be allowed to do so after the ruling. What the court should not do is to bar a person from approaching it on account of so-called dirty hands.
Indeed, there are circumstances where complying with legislation before challenging it would make the legal challenge futile or academic. One example is where a piece of legislation enquires a citizen to give up his property to the State. If that person complies with the legislation before challenging it, he might end up in a situation where he will have no resources to make the constitutional challenge.
Another example which shows the absurdity of the Clean Hands doctrine in human rights litigation is where a person has been arrested for conduct that is deemed to breach legislation. If a person were to challenge the constitutionality of a section of the Public Order and Security Act at the Supreme Court, would the Court deny him the right to be heard on the basis that he has dirty hands? Yet this would be the logical conclusion of the Supreme Court’s reasoning in the ANZ case, which is that a party who has allegedly failed to comply with the law lacks clean hands.
Further, what if the accused has been found guilty by a trial court, would it mean that the Supreme Court would not give him audience simply because by his pronounced guilt he has “unclean hands”? Even an accused who has confessed to committing an offence is still entitled to constitutional protection by the courts when he alleges that his constitutional rights have been violated.
Indeed, even prisoners are still entitled to that protection despite having so-called “unclean hands” for disobeying the laws of the state. Clearly the constitution allows challenges against legislation at any point and to use the “Clean Hands” doctrine to bar constitutional challenges would seem to close the door to legitimate complaints that citizens may have against oppressive legislation.
In other circumstances, the government could abuse the Clean Hands doctrine through making unconstitutional legislation, knowing fully well that citizens would be required to comply before approaching the courts. However, by the time the constitutional litigation is heard, the government would have achieved its purpose since citizens would have been forced to comply.
In fact a government that did not have a two thirds majority to change the Constitution could easily use the Clean Hands doctrine to enact legislation which offends the Constitution and achieve its purpose before the law is challenged. They can do so especially where they seek to effect certain measures that can have lasting effects knowing fully well that by the time the people challenge the constitutionality of the law they will have complied in order to satisfy the “Clean Hands” doctrine. By then, the state will have achieved, through parliamentary legislation, what it would not be able to do through the constitutional amendment procedure. The rule that forces compliance before approaching the court primarily serves the interests of the state and not the rights of applicants.
Overall, the decision of the Supreme Court in the ANZ case was that a citizen must lose his rights first and then complain later. Ideally the court must ensure that rights of citizens are adequately protected by promoting their uninterrupted enjoyment. If a party has an opportunity to ask the court’s assistance to maintain the enjoyment of rights before a piece of legislation is used to violate them, the court must take positive steps to ensure adequate guarantees are in place. If there is a chance to stop the erosion of rights, the court must actively curtail such erosion. The constitution becomes worthless if the rights that it guarantees can only be enjoyed subject to parliamentary legislation.
My view was that ANZ was perfectly entitled to challenge a law that had the effect of interrupting its enjoyment of constitutionally guaranteed rights. It did not make sense to force a party to comply with legislation that deprives it of the very rights that it seeks to protect. Quite reasonably, the ANZ had taken pre-emptive action to safeguard its rights and this was disclosed to the court. Its conduct was neither dishonest nor improper. At the time of challenging the law it was operating legally and as its application was in terms of the constitutional requirements, its lack of registration did not necessarily make its conduct illegal. It had constitutionally vested rights which needed protection. But the Supreme Court ignored all this and instead extended the Clean Hands doctrine to the field of human rights, which was controversial and inappropriate.
Behind the cover of law was of course a political decision. The Daily News was the most important voice in the media. It provided a platform for the opposition, which was denied space in the state media. It had first appeared in 1999 and within a short period it had successfully challenged the dominance of The Herald, the state daily. It had become an important institution, a critical representation of the Fourth Estate. But it had also attracted many enemies, chief of which was ZANU PF and its government. Indeed laws like AIPPA were part of the state’s response to so-called opposition media. It was a brazen attempt to control and stifle the media, with The Daily News top of the list. Eddison Zvobgo, the eloquent ZANU PF politician had condemned the initial draft of AIPPA as a dangerous assault on human rights. The Daily News’ printing press had previously been bombed. However this had failed to muzzle the paper. What eventually got it though, was the legal instrument of the Clean Hands doctrine, via the judiciary. By using the Clean Hands doctrine to bar the paper, the judiciary had achieved what the executive arm of the state had failed to do.
A precedent had been set and it was a dangerous one beyond its effect on The Daily News. That was now the law of Zimbabwe. A litigant with so-called dirty hands could not approach the Supreme Court for human rights’ relief. What was to be done in the circumstances? There were two possible remedies: the Supreme Court could either reverse or vary its precedent or parliament would have to amend the Constitution to abolish the Clean Hands doctrine from human rights litigation. My academic piece, which was published in the International Journal of Civil Society Law called for a review of the Clean Hands doctrine. However, it was futile as the courts did not take heed. The ZANU PF-dominated Parliament ignored the pleas for review.
However, an unlikely moment to review the Clean Hands doctrine came during the constitutional review process. In 2008, Zimbabwe decided to re-make its founding law. It was an opportunity to expand the scope of human rights and also to enhance access to the courts. The Clean Hands doctrine had become an impediment and this was a chance to review it.
In 2011, the MDC-T invited me to take part as an adviser during the constitutional review process. I accepted the call, believing it to be a unique opportunity to play a role in an important national process, one that does not easily avail itself to academics. However, I did not view it as a partisan role. I was not going there to defend the MDC-T, but to play a role in enhancing the rule of law and constitutionalism. I worked closely with Douglas Mwonzora, who represented the MDC-T but also had a professional relationship with Paul Mangwana who represented ZANU PF and Edward Mkhosi who represented the other MDC formation. The efforts of these three men and the manner in which they patiently and skillfully managed a dangerously precarious process are yet to be fully appreciated but that’s a story for another day.
There were many things about the old constitution that required review. For me, the Clean Hands doctrine was one of them. If human rights were to make sense for the people of Zimbabwe, access to the courts had to be expanded and enhanced. Any barriers to the enforcement of human rights had to be removed. The Declaration of Rights had to be safeguarded by a robust set of rules. There were other things of course, such as promoting checks and balances on executive power, but that’s also a story for another day. On this occasion, I focus specifically on the issue of barriers to the enforcement of human rights and how the Clean Hands doctrine was dismantled, at least in so far as human rights litigation is concerned.
It was against this background that section 85(2) of the Constitution was proposed and crafted. It reads as follows:
“The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1)”
It is this simple set of words that pronounced the death sentence for the Clean Hands doctrine in so far as human rights enforcement is concerned. It effectively reversed the precedent set in the ANZ case, to the effect that a person who was deemed to have dirty hands could not approach the court to enforce fundamental rights. I recall someone asking where we were getting this from. I said the people had demanded greater access to the courts of law and greater human rights protection. The Clean Hands doctrine was a major impediment and it had to go. And so the Clean Hands doctrine was abolished in respect of its application to human rights matters.
It is a partial death however because the doctrine may still be applied to other forms of litigation. Therefore, when the Prosecutor General Johannes Tomana tried to invoke it in his case where he was challenging the constitutionality of provisions relating to private prosecution he was unsuccessful. He had disobeyed previous rulings of the High Court requiring him to issue certificates of private prosecution in the Kereke case. When he approached the Constitutional Court, the court dismissed his case and said he had dirty hands by virtue of his contempt of court. He tried to invoke section 85(2) but he was unsuccessful. However, it would have been different if he had structured his application as a case of human rights enforcement. The Court would have been unable to bar him on the basis of that doctrine.
This narrative gives a partial insight into the constitution-making process. It was a process which considered what the people had said, but it was also a process which included what negotiators believed to be the best constitutional practice. It’s a story that is yet to be fully and comprehensively told in print. Others have watched the excellent documentary, Democrats, which vividly narrates aspects of the process. Long-time followers of this column will recall that I have long promised a narrative of this process. And that promise will be fulfilled. On this occasion, I decided to commemorate the event of the ban of the Daily News an important moment in the long-drawn struggle for democratisation in Zimbabwe. There are some readers here who were probably toddlers when this moment happened.
When the constitution was being written, we did what we thought was right. Parliament makes laws. The judiciary occasionally makes laws, under the guise of interpretation. This is what they did when they introduced the Clean Hands doctrine into human rights litigation. But as the birth of section 85(2) demonstrates those who draft constitutions also occasionally make laws under the authority of interpreting data. No-one should mourn the partial death of the Clean Hands doctrine. It was an unnecessary impediment to the protection of human rights. That the Supreme Court had used it was a fatal error. Thankfully, the constitution-making process presented a chance to review it and to pronounce its partial demise. Politics had introduced the Clean Hands doctrine into human rights litigation, and a political process had removed it.
waMagaisa
