HomeOpinion & AnalysisColumnistsWell-timed and truly said, Justice Kamocha!

Well-timed and truly said, Justice Kamocha!

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Each time an election is impending in Zimbabwe, there is that sinking feeling of dread as intimidation peaks.

Almost everything comes to a standstill in the poverty-stricken rural areas and overcrowded townships as people are headed to rallies, where Zanu PF demands that everyone — from the simple peasant to the teacher — be its political commissar or else . . .

It is mainly with this in mind that High Court judge Justice Lawrence Kamocha, while opening the Gweru High Court circuit this week, called for professionalism on the part of the police and the courts in dealing with cases of political violence.

He said: “I would like to urge all magistrates and prosecutors in light of the impending elections to apply the law to the best of their ability, equally, impartially, professionally without fear or favour in respect of those who appear before them facing politically-motivated crimes . . . irrespective of political affiliation.”

Justice Kamocha said this from both the perspectives of a judge and true patriot as his words are both profound and commonsensical, reminding people of their basic duties and the grave consequences of dereliction of such.

“Commonsense is the realised sense of proportion,” said Indian human rights activist and statesman Mahatma Gandhi. Justice Kamocha pointedly advised the police, prosecutors and magistrates against getting entangled in the politics of the day as upholders of institutions.

The judge continued: “What it means is that members of the (police) force should rise to the occasion and without fear or favour arrest ALL those who are involved in or incite political violence irrespective of their political affiliation or standing in life.”

Yes, this is long overdue. Mbare has been turned into a hotbed of intimidation and political violence. Only last weekend, thousands of residents were herded from the shabby and decaying hostels and paraded for TV cameras as Zanu PF supporters.

It was clear most of them were not there voluntarily, but out of fear of being thrown out their “accommodation”, if these grimy and grubby hostels may be called such.

Names of those behind this have been mentioned and these are ever-present in Mbare with some of them descending there from affluent suburbs to use the poor as political cannon fodder.

This happened in Kenya four years ago and the suspects — including Deputy Prime Minister Uhuru Kenyatta and three Cabinet ministers — have been charged by the International Criminal Court for their alleged role in fanning pre-poll violence which left thousands dead and many more homeless.

Killers, whether outrightly criminal or misguidedly motivated by politics, must be held accountable, must be made to face the music.

Continued the judge: “The law must apply to all so as to avoid the perception that the law is being applied selectively or arbitrarily.”

Here, I beg to differ with the learned judge because it’s not the perception, but reality that the law has been applied selectively and arbitrarily in favour of Zanu PF and against the opposition.

The named main suspect in the sadistic killing of two MDC activists in Buhera in 2000 during pre-poll violence is still walking free while opposition suspects are quickly descended upon even on the flimsiest of grounds and the low rate of conviction proves that most of these charges are complete fabrications.

Similarly, police must not obey unlawful instructions; conscience should be their first stop. Said Gandhi: “An unjust law is itself a species of violence. Arrest for its breach is more so.”

Some might want to accuse Justice Kamocha of interfering with other spheres, but the judge is well aware that for the just delivery system to work, all those along the chain — from the politicians themselves, the police to the courts — must play their part.

“I claim that the human mind or human society is not divided into watertight compartments called social, political and religious. All act and react upon one another,” said Gandhi.

What happens in other spheres impinges on the justice system.

Taking on politicians directly about their bona fideness or lack of it, Justice Kamocha said: “This must be matched with actual conduct and sincerity on the part of the politicians and others in positions of influence in our society to demonstrate by actions and deeds that violence has no place in our society.”

Yes, there must be a fundamental rethink of the model — if it can be called that — of their political conduct. The judge has rightly pointed out that there is a big gulf between what the politicians say and what they do, and between them and the people.

We need such pro-activism or even activism itself within the Judiciary. We need judges who confront issues even before they come to court. After all, judges are part of society and, as such, are interested parties.

An example of effective activism is provided by the late white judge Justice William Wayne in the United States. When he was appointed a federal district judge in 1968, the American South was still segregated along racial lines, almost a throwback to the days of slavery.

But Wayne fearlessly enforced desegregation in schools. Read his obituary in TIME Magazine in 2009: “It would have been easier to just go along, as so many other judges did. But Wayne . . . didn’t wink at the law.

After receiving handwritten letters from prison inmates describing awful conditions and brutal treatment, he appointed a lawyer to handle the case, a decision that led to an overhaul of the state’s prisons. . . He was a really saint with a briefcase.”

How many suspects here have appeared in court with obvious signs of torture and nothing has really been done? What about the well-documented notoriously horrible and horrific conditions in the jails?

Nearer home, in pre-1994 South Africa, there were activist white judges and lawyers who saw that legalised racism could not co-exist with justice and took the apartheid regime head-on.

Yes, we need judges ready and willing to speak out these home truths to the powers-that-be; who are able and willing to raise burning issues.

And the powers-that-be should take this criticism, however strident, in their stride because “honest disagreement is often a good sign of progress” (Gandhi) — not let or send the likes of the Chinotimbas to judges’ chambers to hound them out of office.

Justice Kamocha’s statement, coming so soon after Deputy Chief Justice Luke Malaba’s extolled the independent-mindedness of retired judge Justice Wilson Sandura, is telling and significant.

Well-timed and truly said, Justice Kamocha!

ctutani@newsday.co.zw

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