Mercedes Sayagues
In yet another display of dictatorial arrogance, Zimbabwean President Robert Mugabe last week invoked the Presidential Temporary Powers Act to change prison regulations. The objective was to overturn a court ruling that eased living conditions of the three Americans caught with weapons at Harare airport in March.
Through their lawyer, the Americans (Gary George Blanchard, Joseph Pettyjohn and John Lamonte Dixon) complained of having to sleep naked, in leg-irons, with the lights on and in solitary confinement. Their lawyer requested more humane treatment, including exercise and interaction among the three. On July 12, Justice George Smith ordered the harsh regime relaxed. The state appealed to the Supreme Court and lost. On July 17, Justice Mohamed Adams ordered the state to comply.
The president, and probably the security services, did not like it a bit. So Mugabe ruled that the commissioner of prisons decides how prisoners must be kept, to the exclusion of any other authority except the minister of justice, legal and parliamentary affairs.
In one move, Mugabe ignored the judiciary and arguably took over the legislative function from Parliament.
“This has shocking implications for democracy and rule of law,” says human rights lawyer Tendai Biti.
Lawyers can argue the fine points of administrative law on whether a judge should interfere with the running of prisons. But from a human rights point, reasonable security conditions do not equate cruel treatment.
“The court is right in not tolerating inhumane treatment, although its ruling could cause a ripple effect in prison,” says Professor George Feltoe.
Amnesty International reported in 1997 that Zimbabwean prisoners on death row sleep like the Americans, shackled and naked. The dreadful conditions and psychological torment endured by death row inmates, Amnesty International said, violated the right to be free from cruel, inhuman or degrading punishment.
Inspired by the court’s ruling, prisoners might also demand better treatment. But in its case the state argued that chaos would ensue if every prisoner were accommodated.
What is not arguable is that the Presidential Powers Act is easily abused. This is the second time in three weeks that Mugabe has invoked it for mundane matters – the sleeping arrangements of prisoners in this case and, earlier, capital gains tax. Yet the Act should be invoked only for serious matters, such as public defence and the economy.
“The powers are too wide and should be restricted,” says lawyer and Zanu-PF MP Rita Makarau.
The case happens against the background of Zimbabwe’s constitutional reform process, carried in parallel by the independent National Constitutional Assembly and the government-convoked Constitutional Commission.
“It is wrong to usurp the legislative powers of Parliament and the new Constitution will have to deal with this, but, by a strange twist, it is helpful,” says law lecturer Ben Hlathswayo. “We are mending the roof in a storm, but at least we know where it is leaking.”
Hlathswayo had defected from the National Constitutional Assembly to the Constitutional Commission.
A fellow commissioner, Professor Jonathan Moyo, differs. “The judge overstepped the line and provoked the executive,” says Moyo, who chairs the commission’s media committee. “Something is wrong with the Zimbabwean judiciary.”
Yet even Moyo, who from being a critic of government in the early 1990s has been reincarnated as its staunch supporter, concedes that the Act conflicts with democratic rule.
Moreover, the president and the security services have a score to settle with Justice Smith. In January, Justice Smith served the military a high court order requesting that it produce journalists Ray Choto and Mark Chavunduka, who were illegally detained and allegedly tortured.
The Americans also allege they have been tortured. As with Choto and Chavunduka, whenever the judiciary gets too close to cases of torture, the volcano rumbles.
But then, the three Americans fit nicely with Mugabe’s theory of an American/British/Rhodesian/South African conspiracy against him. Since their arrest in March, the trio have been linked in the official media to bombings in Lusaka and Kampala, to the kidnapping and killing of tourists in Uganda, even to the International Monetary Fund, as Minister for State Security Sydney Sekeramayi told a weekly publication.
The state, however, has scaled down its charges from sabotage and conspiracy to illegal possession and smuggling of weapons.
Mugabe’s latest move strengthens the case for curtailing presidential powers in Zimbabwe’s new Constitution. Whether Mugabe will tolerate such a proposal from his own commission remains to be seen.