/ 4 November 2003

‘Zimbabweans are criminalised’

A tear fell from my cheek on to the concrete floor. It was 7pm —time to go. I took one last look through the bars of the prison cell. A police officer bellowed, ”One prisoner at a time, you get your food one by one!”

They stood in line waiting to fetch their evening meal from a pile at the cell door. Stuart moved forward to peer into the paper bag with his name marked on it. He walked bare-foot. His tailored, light-grey trousers, now heavily creased and streaked with grime, were rolled up to his knees.

Rachel waved goodbye. She stood quietly in line behind 20 other detainees. Her feet stood bare on the filthy ground.

Stuart Mattinson is a retired stockbroker. He runs a financial consultancy in Harare. He has not been to the offices of his financial advisory firm all week.

Rachel Kupara is a well-known Zimbabwean investment banker. She sits on the boards of four Zimbabwean companies — one of them listed on the Zimbabwe Stock Exchange. For three years, during the 1990s, she served as a director of state-controlled newspaper publishing company Zimbabwe Newspapers Ltd.

Three months ago she accepted a seat on the board of another publishing company, Associated Newspapers of Zimbabwe (ANZ) Ltd, publishers of The Daily News. She had been selected because of her sharp financial mind and solid exposure to media business.

This Wednesday both these people stood in the dock of a dingy Harare courtroom, accused with three other directors of the company. Their crime: trying to run this publishing business.

The day before when my lawyer colleague Beatrice Mtetwa had tried to take them lunch, the prison officer, a Sergeant Garanonga, informed her that lunch had been abolished. With effect from 8am that day, criminal ”suspects” were only entitled to eat breakfast and supper.

Mtetwa was forced to negotiate with the comptroller of prisoners to allow at least one of the four detainees to have his food. He is on a strict medication regime and cannot take his medication on an empty stomach.

Earlier the same morning my colleague and I had been denied access for the purpose of rendering legal advice. We had had to seek the intervention of a senior police officer and were allowed only five minutes with them.

During our brief interview we enquired about the conditions under which they were being detained. Their description was of inhumane conditions.

The latrines housed within the cells were overflowing with human waste. The floors were encrusted with dirt that had probably accumulated over years of neglect. The walls and ceiling were stained with blood. The blankets that line the concrete beds were infested with lice.

By the second day of detention one of the directors, Brian Mutsau, had developed severe diarrhoea.

ANZ, the publishing company of which the group are directors, was formed in 1998. It’s primary objective, according to its Articles of Association, is to publish newspapers. The state’s company laws permit a company to carry out any business activity authorised in its objects clause.

In March last year the state legislated to criminalise certain activities relating to publishing in the country.

Seven weeks ago, in pursuance of this law, police clamped down on the alleged criminal activity of ANZ.

Police, armed with AK-47 rifles, raided the company’s premises, forcefully evicted staff, and seized the assets of the company. Publishing operations were shut down for six weeks. Millions of dollars of revenue were lost.

ANZ’s directors took the state to court and last Friday won the battle to reopen the business.

On Saturday October 25 the company was back in business. The 50 000 copies of that day’s edition of The Daily News circulated in the capital were sold out within two hours.

By lunchtime on October 25 18 employees of the company were detained in a Harare police station. They had been forcefully removed from their offices while working on the newspaper’s Sunday edition.

Heavily armed police took control of the premises, and that night the police raided the private residence of the CEO. They arrested his niece.

She was told that she would be kept hostage until her uncle, Samuel Sipepa Nkomo, gave himself up. The girl, who had been charged with ”engaging in conduct likely to cause a breach of public peace”, was released on Monday morning when Nkomo handed himself over to the police.

Early on Tuesday morning, in Bulawayo, the police raided the home of a non-executive director and retired High Court Judge, Washington Sansole. He was arrested.

The police informed him that he would be released only when other directors of the company had been arrested. They held him until a High Court judge determined that the detention was unlawful and ordered that he be released.

All this in Zimbabwe.

It is perhaps beyond me to understand the motive of a government that would sanction this kind of bastardisation of its criminal justice system, save to say that the Zimbabwean government has, through the enactment of the Access to Information and Protection of Privacy Act (Aippa), criminalised legitimate economic activity.

Newspaper publishing, in a normal society, is a principal form of behaviour that brings people and institutions into contact with each other and fosters economic and social progress.

In a just society, the stigma of criminality is only imposed on those who have incurred the just condemnation of the criminal law.

By this I mean that there is a relationship between the vigorous enforcement of criminal sanctions and public acceptance of the propriety of employing criminal sanctions.

A government cannot persuade the people to view conduct as wrongful simply by making it criminal.

Law, even criminal law, is simply not that potent a weapon of social control. In fact, the reverse becomes true. Far from criminalising morally neutral conduct, the intensive application of criminal sanctions to activity that is considered to be ”normal”, as is the case with newspaper publishing, has the effect of decriminalising the criminal law, traumatising its citizens and bringing the criminal justice system into disrepute.

A state that makes criminal that which people regard as acceptable will find that the people’s attitude towards what is criminal undergoes change. Criminality loses its stigma and, slowly criminals are perceived as victims, rather than as a danger to society.

Unfortunately, the change in perception extends to all criminal cases, be they serious crime that must be eradicated or not. People cease to accept the state’s definition of criminality and the criminal law loses its potency as a weapon for social control.

Zimbabwe’s Aippa has the effect of making criminal almost all the activities of media enterprises within Zimbabwe. This misapplication of the criminal law lacks proper justification and thereby brings the Zimbabwean criminal justice system into disrepute.

Gugulethu Moyo is the legal adviser to The Daily News