01/06/2004
George Bizos

DETERMINED to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law;

FURTHER DETERMINED to take all necessary measures to strengthen our common institutions and provide them with the necessary powers and resources to enable them to discharge their respective mandates effectively.

In articles 3 we find amongst the objectives of the African Union:

(g) promote democratic principles and institutions, popular participation and good governance; and

(h) promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments;

Among the organs to be established is the Pan- African Parliament and the Court of Justice.  The 47th signatory was the King of Swaziland and the 53rd the President of the Republic of Zimbabwe. As their counties are our closest neighbours we, gathered in Johannesburg, may be tempted to ask whether they crossed their fingers when they signed the Constitutive Act.  They are not the only ones who have failed to live up to the promises they made to their citizens and their brothers throughout Africa.  Amnesty International in its regional overview for 2003 wrote

“The human rights situation across the Africa region in 2003 was characterized by widespread armed conflict, repression of political opponents, persecution of human rights defenders, violence against women, and limited access to justice of the most marginalized in society.   ….and the failure of many governments to live up to the professed standards of governance contributed to the denial of civil, political, economic, social and cultural rights particularly of the most vulnerable – women and children, refugees and the internally displaced, people living with HIV/AIDS, the poor and those who lack formal education”.

The African Charter on Human and Peoples’ Rights which is expressly incorporated into the Constitutive Act of the African Union, has 29 main articles and over 40 sub-sections.  It contains much which one finds in the UN Declaration of Human Rights, the Canadian Charter of Rights and the Bill of Rights in South Africa’s Constitution.

Article 13 (1) provides:
Every citizen shall have the right to participate freely in the government of his country either directly or through freely chosen representatives in accordance with the provision of the law.

Article 14.  
The right to property shall be guaranteed.  It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

Article 21
2.  In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property,  as well as to an adequate compensation.

3.  The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic co-operation based on mutual respect, equitable exchange and the principles of international law.

Article 26
States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

The Charter also provides in another 38 articles for the establishment of an African Commission on Human and Peoples’ Rights to oversee the implementation of the rights set out in the Charter.

What has happened to the judiciary in Zimbabwe is a matter of record.  Following the visit of the IBA delegation to Zimbabwe in March 2001, the IBA concluded in a widely read report that the rule of law was in grave peril, and that the independence of the judiciary was under threat.  Despite assurances received from President Mugabe to the IBA Delegation that the rule of law would be respected and that the safety of the judges will be ensured, the IBA has observed with extreme concern the further deterioration of the rule of law in Zimbabwe.  The same body protested against the arrest of retired Justice Blackie at 4:00am in the morning at the instance of the Chief Justice Chidayausiku.  The charges were without foundation and were eventually withdrawn.  The Chief Justice of South Africa Arthur Chaskalson issued a statement that:

“The perception created by this high handed and disproportionate action is that its purpose was not only to humiliate the former judge, but also to intimidate others.  The independence of the judiciary is a core value of any democratic society.  The way the matter has been dealt with by the Zimbabwe police, threatens that independence, and is deplorable”.

Similar statements were made by the General Council of the Bar and the Law Society of South Africa.  The Special Rapporteur on the independence of judges and lawyers of the United Nations Commission on Human Rights, Dat’o Param Cumaraswamy wrote:

“When judges can be arrested, detained, charged on trumped up facts for exercising their judicial functions then there is no hope for the rule of law in such countries.  It is a blatant and wanton breach of Principle 2 of the United Nations Basic Principles on the Independence of the Judiciary. Principle 2 provides:

“The Judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressure, threats or interferences, direct or indirect, from any quarter or for any reason””.

Since the forced retirement of Chief Justice Gubay in 2002, 7 judges, 2 from the Supreme Court of Zimbabwe and 5 from the High Court have resigned.  All of them had been appointed by President Mugabe including the errst while Chief Justice, even though he had been appointed as a High Court Judge before 1980 when Zimbabwe became independent.  Five of the six Supreme Court Judges have been recently appointed by President Mugabe with only one appointed prior to 2002.  No doubt this is a result  of the stress created by the criticism against them when they give judgements against the State and/or its organs.  Out of the twelve High Court Judges, eight have received farms from the government, seized in terms of the accelerated farm acquisition programme.  Of the six Supreme Court Judges, at least four have received farms.  The recipients have apparently come to terms with the State refusing to execute court orders in favour of farmers whose land had been seized.

The International Bar Association sent six eminent lawyers to Swaziland to ascertain the legal status of the judiciary and its ability to perform its duties partially and without interference; to identify the domestic regional and international guarantees for the affective functioning of the justice system in Swaziland;  to determine whether these guarantees are being respected in practice and the remedies that might be available if the guarantees were not being respected.

It reported in March 2003:

“The mission found that there was a clear lack of separation of powers and respect for the judiciary by the Executive.  In particular, the Prime Minister and the Attorney-General routinely interfere with judicial process and brazenly refuse to enforce court decisions.  They have also harassed the Director of Public Prosecutions (DPP) when he has attempted to take the action to curb contempt of court.  This has led to the resignation of the DPP and of all the judges of the Court of Appeal and a refusal by the High Court to conduct proceedings in civil cases brought by the Government.  As a result, there is a serious denial of justice beyond the level of the magistracy.  It is imperative that the stalemate between the judiciary and the Executive be resolved as soon as possible”.

The preservation of royal prerogatives in Swaziland has stifled political progress.

The view is often held that that Monarchy and Democracy are incompatible:  This is clearly not so.  Monarchies have flourished and enjoyed greater loyalty when the King or Queen agreed to reign and under their guidance allowed democratically elected representatives to govern in their name.  Those who resisted change were deposed.  Constitutional Monarchs in United Kingdom, most of the Nordic Countries, the Netherlands, Belgium and Spain are good examples to be followed.  Lest it be thought that Constitutional Monarchs are confined to Europe regard should be had that they are equally successful in Japan, Nepal and Thailand.  A main cause for the abolition of the Monarchy in France, Italy, Greece and other European countries was the failure to convert themselves to a Constitutional Monarchy.  The same happened in an number of countries in the Middle East and in Africa, in Egypt and Ethiopia.  Significantly of the 53 Heads of State present at the adoption of the Constitutive Act of the African Union in February 2001, 50 were represented by their President, as the Head of State.

We in South Africa have been through much of this for over forty years of apartheid rule.  Though we as lawyers may have had more room to move in, it was not easy.  We were at times told that the scales were so heavily weighed against us that we should give up.  We did not.

The press, civil society, trade unions, professional organisations, lawyers and citizens should not despair.  Preserving structures such as the judiciary however, unsatisfactory, as its performance may be when it is under stress, as is the case in Zimbabwe and Swaziland, may help to restore the rule of law when change comes about.    Sooner or later it is bound to come. Surely sooner than it did in South Africa.

We did not do it alone.  We had overwhelming support from freedom loving people throughout the world to whom we are grateful. I am sure that the people of Africa will continue to receive similar support.