Independent but not free: Use of the law to silence critics in Zim

TODAY, Zimbabwe celebrates 44 years of independence with so many questions being asked such as what was the country’s independence all about?

TODAY, Zimbabwe celebrates 44 years of independence with so many questions being asked such as what was the country’s independence all about?

After attaining independence on  April 18, 1980, the ruling party adopted means to ensure its continued stay in power.

One of the means include using the law as a tool to maintain and retain power.

Law refers to the rules and regulations that govern human conduct or other societal relations and are enforceable by the government. Most legal rules are designed to achieve the ends of justice.

However, this has not been the case in Zimbabwe post-colonial period, the law has been manipulated by the government for decades to ensure it continually stays in power.

In terms of governing human conduct it has been crafted in a way that subdues, monitors citizens’ conduct and at the end ensuring that government retains its power. Laws have been passed post-independence to ensure continued possession of power, some of which have been repealed.

The key aspect of government’s autocratic control is the strategic use of law and legal provisions to retain office and strengthen its power in ways that contravene or undermine democratic norms, processes and institutions.

The use of legal strategies is particularly notable in critical periods around elections and threats of transfer of power, periods where government needs to legitimise itself or assert control.

For instance, the restriction of internet towards the 2023 elections was a way of controlling information that is being shared among people and the shutdown of internet is usually justified by the limitations provided for in the Constitution.

Ways in which the law has been used to constitute uncontested power in post-colonial Zimbabwe closely resembles colonial times as government has relied on the same institutions and invoked the same justifications by mobilising a discourse of law to silence political dissent and to criminalise political opposition.

Despite the removal of the late former President Robert Mugabe from power, the new “dispensation” has carried on the tradition of maintaining power through direct use of violence and threats of violence, the passing of legislation impeding opposition mobilisation, imprisoning opposition leaders and the use of State resources to infiltrate and divide the opposition. Legal strategies have constituted central tools of authoritarian repression in post-independence Zimbabwe.

Zimbabwe is governed by the principle of the rule of law, which seeks to ensure that no one is above the law.

It is the law that rules and not people. However, at the end of the day rules are made by people to further their interests. Notably, the Mugabe government reaction to the constitutional referendum defeat in 2000 and the significant threat it presented to its political power, the rule of law deteriorated sharply.

As part of Zanu PF’s turn to authoritarian nationalism, the fast track land reform and resettlement programme was carried out in a manner provoking conflict with core legal norms and the Judiciary was reformed to ensure that its decisions complied with the dictates of the ruling party, what Lovemore Madhuku calls “the Mugabe approach” to law.

The integrity of the legal system was compromised through a combination of pressures on independent judges to resign, repeated refusal by the State to comply with court orders and the granting of amnesties to people who had committed acts of violence on behalf of government.

When the ruling party came under increasing pressure from opposition parties in the early 2000s, it stepped up legal and extra-legal attempts to undermine opposition mobilisation.

Through the passing of legislation making opposition mobilisation more difficult, the government became increasingly isolated.

Accused of human rights abuses, it became more and more hostile towards those civil society organisations (CSOs) which it perceived to be working closely with international donors and passed legislation that impacted negatively on the operations of CSOs.

A key example is the Public Order and Security Act, which was passed in 2002 to restrict activities of the opposition and to control the independent Press. It has since been replaced by an equally repressive Maintenance of Order Act.

This Act made it mandatory for all organisers of public gatherings to inform the police of their plans in advance but has been used selectively in support of the ruling party.

Government is currently pushing for the enactment of PVOs Bill which will require all CSOs to be registered by an NGO Council to be appointed by a government minister. The intention of the Bill can be seen as outlawing all foreign funding for CSOs operating in the areas of human rights, democracy and governance. The intention is to limit the abilities of these CSOs to operate effectively, thereby cushioning the government against accusations of human rights violations.

The government has been known for enacting legislation that ensures that it retains power by limiting and restricting freedom of the media.

Media is a powerful tool that influences behaviour and thoughts of people. In a bid to control what people hear, read, know and by extension know what they think the government before enacted the Access to Information and Protection of Privacy Act which has since been repealed albeit with very insignificant changes.

Zimbabwe still has repressive laws such as the Broadcasting Services Act 2001, passed in 2001, which gave the government extensive control over any future private broadcasters, should licences ever be issued.

The grip that government has had on the media, suppressing freedoms of expression, petition and information has instilled fear among citizens and ensured that they continued to stay in power.

In recent times, the Cyber and Data Protection Act [Chapter 12:07] (CDPA) has been used as an instrument of retention of power.

The Act provides vague and unclear provisions which enable the government to call out their opposition as violence inciters whenever it is criticised. Notably, government has attacked the freedom of expression, right to assembly and petition in order to retain its power over the years.

They back their violent attacks on protesters by using the law. The law has been used as a curtain where they hide their agendas. Even in the streets most people are scared of speaking negatively against the government or to criticise it.

Exposing the government for what it is results in imprisonment as already witnessed from the case of Job Sikhala. In this manner they make reference to the CDPA which criminalises any act that ‘incites violence’. This subdues the opposition parties as they fear for their lives therefore keeping the government in power.

During the COVID-19 lockdown the government took that opportunity to amend the Constitution to consolidate the powers of the executive without input from the citizens.

The amendments passed in April 2021 included enhanced powers of the executive in the appointment of judges, the removal of the qualification requirements and the direct election of the vice-president.

The Constitutional Amendment Act 2 (2021), among others, enabled the President to promote judges from lower to higher courts without involving the Judiciary Services Commission (which would conduct public interviews and vet the candidates) and to extend the tenure of the Chief Justice and Supreme and Constitutional court judges.

The amendment process was criticised by the opposition and civil society for not following procedural rules and for being retroactively applied to the incumbent Chief Justice Luke Malaba (who would otherwise be retiring, having reached the age of seventy).

This amendment was the government’s way of controlling the judiciary and employ them as their puppets who would ensure their continued stay in power. With all these strategies it is clear that the law is being used as an instrument to retain power rather than a tool for social transformation, hence we ask the question — Is Zimbabwe independent but not free?

  •  Mlondolozi Ndlovu is a Zimbabwean media practitioner and media trainer. He is an aspiring legal practitioner at the University of Zimbabwe and can be contacted on +263778351296

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