Section 121: A jungle law at best


“We are fighting the system, not the white man.” This was the reply often eloquently put forward by Herbert Chitepo, Josiah Tongogara, Joshua Nkomo and many others, in explaining the justifiable onslaught against the oppressive colonial settler regime of old.

Bang . . . straight to the face! Can anyone argue against that? Of course not! What an awesomely sensible thing to say . . !

And to prove it, many whites who were caught in the dragnet were simply let go after some security enquiries.

This was evidence of the high moral ground our war of liberation occupied. And, any excesses by zealots were acknowledged and punished.

I remember reading about Nkomo lamenting the death of white civilians when the Air Rhodesia Viscount airplanes were brought down in the mistaken belief that military targets were on board.

There were many repressive and inhuman laws that were used to institutionalise oppression against the black indigenes of Rhodesia, then.

For instance, the pass laws and the laws that required blacks to vacate town by 7pm or face arrest, among others.

There was segregation in even mundane things like toilet facilities in the city.

If an African was in Samora Machel Avenue, Jameson Avenue then, and needed to use toilet facilities he or she had to trek all the way to the railway station to help themselves.

There was a qualified voting structure which required one to have immovable property with a title deed or be very educated. Even then, Africans could only be on their own B Class Voters’ Roll.

On the other hand, a white with neither property nor education could vote — in a country that belonged to the African.

How the colonisers thought such a system fair and proper betrays a sickness of the mind.

African political parties were often proscribed and nationalists routinely arrested and detained, often without ever getting tried in court, for there just was no case for them to answer.

There was one obnoxious piece of legislation which allowed the minister of justice to order the arrest of any nationalist purely on suspicion, brought before the minister, that the nationalist, if left on the loose, might commit or cause a crime to be committed.

The legislation allowed for the aggrieved nationalist to appeal, to the same minister who had ordered his arrest, if he so wished.

This was crude justice in the extreme. In the event that nationalists were brought to court, tried and acquitted, they were sure to have a reception committee of police officers and detectives waiting for them outside court to re-arrest them and send them right back to the cells, pending some spurious charges.

This was a regular pattern. Africans had no choice but to fight such an evil system and in its place put equal rights for all, irrespective of colour, creed and all. Well . . . ideally!

Fast-track to contemporary politics, things are still far from rosy. Opposition politicians are still routinely arrested, even on the flimsiest of grounds.

When they are brought to court and granted bail, Section 121 is routinely invoked to ensure extra-judicial, pre-trial punishment, lest the case against them doesn’t hold – which is often and invariably the case.

How and why an oppressive piece of legislation which clearly ousts the jurisdiction of the courts and gives an unfair discretion to one litigant over another, remains on our books, is mind-boggling.

In any criminal case, the accused is pitched against the state — why then is the state allowed to override the court’s decision in matters of bail, and invoke an instrument to override the court’s decision and keep an accused, in whose favour the universal presumption of innocence until proven guilty runs, in cells, when clearly the court is satisfied that such accused is not a flight risk candidate?

This is a clear travesty of justice — a vicious assault on fundamental human rights and liberties of a citizen. This is jungle law, at it’s best!

This is the same thing Rhodesians were doing to our nationalists and political activists, albeit under a different law. At least the Rhodesians did this under a state of emergency, thereby having a semblance of academic “legality”, as Rhodies were a de facto regime.

On what moral or legal grounds is Section 121 Criminal Procedure and Evidence Act predicated or grounded? This is a blatant and wanton abuse of delegated legislation.

Even to be allowed to hold a rally is taboo and an uphill battle, routinely denied the opposition now. So, we were fighting a system, hey?

This is crude justice, in anyone’s language! It’s an assault on the very sacred and cardinal tenets upon which our struggle was based, irrespective of who is applying it on who. Its rotten and unjust to the core!

Section 121 is bad in law, notwithstanding the procedure that brought it about. It smacks of, and conjures memories of Rhodesia. It’s a cruel and inhuman piece of legislation — a clear product of an evil and diabolic mind reminiscent of fascist Nazi justice.

I am reminded of a historical film clip of Edson Sithole and Edison Zvobgo, who were facing imminent re-arrest following an acquittal, and the latter remonstrating to journalists that while not scared of re-arrest, he was “horrified” that, even a government as evil as the Smith regime, would have such a law.

No politician or human rights activist, in living memory, upon whom Section 121 has been invoked, has ever been subsequently convicted of the crime they were alleged to have committed.

I am surprised Parliament, that august House, presides over such a law in a supposedly democratic country. I am also even shocked that the Law Society and human rights organisations have not launched a challenge on such a law.

Section 121 should just vanish. The national question is: In whose interest is it?