‘Rebels’ and ‘Good Boys’: Patronage, Intimidation and Resistance in Zimbabwe's Attorney General's Office after 2000

Abstract

In post-2000 Zimbabwe, the rule of law was undermined as ZANU(PF) dismissed the importance of judicial independence in order to promote its land reform programme. The assumptions of disorder and a lack of institutional strength that mark understandings of the postcolonial African state may thus appear appropriate to the analysis of the negotiation of power and authority within the Zimbabwean state. A focus on a politics of disorder does not, however, further our insights into the practical and conceptual place of law and judicial institutions in Zimbabwe. Examining the dynamics within one state institution, the Attorney General's office, I explore the circumstances under which, and the manner in which, the office was politicised, and how those working in or with the office made sense of this process. Officials invoked two registers, one of corruption and politicisation and another of professionalism and ‘justice’, to explain their experiences with, and expectations of, the Attorney General's office. These views highlight the centrality of contestations over the nature of the judiciary in the imagination of Zimbabwe's state by civil servants, rather than simply demonstrating a weakened, disordered, or hollowed-out state institution.

Notes

¹ J.L. Comaroff, ‘Colonialism, Culture and the Law: A Foreword’, Law and Social Inquiry, 26, 2 (2001), pp. 305–14; M. Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, Cambridge University Press, 1985); S. Falk Moore, Social Facts and Fabrications: Customary Law on Kilimanjaro, 1880–1980 (Cambridge, Cambridge University Press, 1986); K. Mann and R. Roberts (eds), Law in Colonial Africa (London, James Currey, 1991); S. E. Merry, ‘Legal Pluralism’, Law and Society Review, 22, 5 (1988), pp. 869–96; T. B. Zimudzi, ‘African Women, Violent Crime and the Criminal Law in Colonial Zimbabwe, 1900–1952’, Journal of Southern African Studies, 30, 3 (2004), pp. 499–517.

² F. Cooper and A.L. Stoler, Tensions of Empire: Colonial Cultures in a Bourgeois World (London, University of California Press, 1997).

³ B. Berman, ‘Structure and Process in the Bureaucratic States of Colonial Africa’, in B. Berman and J. Lonsdale (eds), Unhappy Valley: Conflict in Kenya and Africa (Oxford, James Currey, 1992), p. 141.

⁴ P. Chabal and J.P. Daloz, Africa Works: Disorder as Political Instrument (Oxford, James Currey, 1999), p. 162.

⁵ Chabal and Daloz, Africa Works, pp. 9–15.

⁶ E.g., G. Erdmann and U. Engel, ‘Neopatrimonialism Reconsidered: Critical Review and Elaboration of an Elusive Concept’, Commonwealth and Comparative Politics, 45, 1 (2007), p. 114.

⁷ J. Gould, ‘Strong Bar, Weak State? Lawyers, Liberalism and State Formation in Zambia’, Development and Change, 37, 4 (2006), p. 923.

⁸ Since 2000, there has been a rapid growth of human rights reporting that stresses the deteriorating rule of law. Such reports include: International Bar Association (IBA), Report of IBA Zimbabwe Mission 2001 (London, IBA, 2001); Solidarity Peace Trust (SPT), ‘Subverting Justice’ The Role of the Judiciary in Denying the Will of the Zimbabwean Electorate since 2000 (Johannesburg, SPT, March 2005); IBA Human Rights Institute (IBAHRI), Partisan Policing: An Obstacle to Human Rights and Democracy in Zimbabwe (London, IBA, October 2007); Human Rights Watch (HRW), ‘Our Hands are Tied’: Erosion of the Rule of Law in Zimbabwe (New York, HRW, November 2008); Bar Human Rights Committee (BHRC), ‘A Place in the Sun’, Zimbabwe: A Report of the State of the Rule of Law in Zimbabwe after the Global Political Agreement of September 2008 (London, BHRC, June 2008); HRW, False Dawn: The Zimbabwe Power-Sharing Government's Failure to Deliver Human Rights Improvements (New York, HRW, August 2009); and SPT, Walking a Thin Line: The Political and Humanitarian Challenges Facing Zimbabwe's GPA Leadership – and its Ordinary Citizens (Johannesburg, SPT, June 2009).

⁹ A. Gubbay, ‘The Light of Successive Chief Justices of Zimbabwe in Seeking to Protect Human Rights and the Rule of Law’, Rothschild Lecture (2001), p. 16. Many veterans of Zimbabwe's 1970s liberation war aligned themselves with ZANU(PF) in 1997 and have played a key role in the organisation of post-2000 political violence.

¹⁰ IBA, Mission Report; interview, Tawanda Zhuwarara, human rights lawyer, Harare, 7 September 2010.

¹¹ A. de Bourbon, ‘Zimbabwe: Human Rights and the Independent Bar’, Advocate (December 2002), p. 18.

¹² In 2005 the MDC split into two factions, the MDC-M, led by Arthur Mutambara (later led by Welshman Ncube and called simply the MDC), and Morgan Tsvangirai's MDC-T.

¹³ Interview, Tawanda Zhuwarara, human rights lawyer, Harare, 7 September 2010.

¹⁴ Interview, Lizwe Jamela, human rights lawyer, Harare, 6 September 2010; also interviews with human rights lawyers, David Hofisi, Harare, 12 August 2010, and Tafadzwa Mugabe, Harare, 18 September 2010.

¹⁵ Chabal and Daloz, Africa Works.

¹⁶ A. Mbembe, On the Post-Colony (Berkeley, University of California Press, 2001), p. 4; Z. Wai, ‘Neo-Patrimonialism and the Discourse of State Failure in Africa’, Review of African Political Economy, 39, 131 (2012), pp. 27–43; C. Lund, ‘Twilight Institutions: Public Authority and Local Politics in Africa’, Development and Change, 37, 4 (2006), pp. 685–705.

¹⁷ Lund, ‘Twilight Institutions’, p. 679.

¹⁸ Cooper and Stoler, Tensions of Empire; T. B. Hansen and F. Stepputat, States of Imagination: Ethnographic Explorations of the Postcolonial State (London, Duke University Press, 2001); A. Sharma and A. Gupta, Anthropology of the State: A Reader (London, Blackwell, 2006).

¹⁹ Lund, ‘Twilight Institutions’, p. 689.

²⁰Ibid., p. 686.

²¹ Interviews with human rights lawyers: Tafadzwa Mugabe, Harare, 21 July 2010 and 18 September 2010; Tawanda Zhuwarara, Harare, 7 September 2010; Alec Muchadehama, Harare, 19 August 2010 and 12 January 2012; De Bourbon ‘Human Rights and the Independent Bar’; W. Ncube, ‘Controlling Public Power: The Role of the Constitution and the Legislature’, Legal Forum, 9, 3 (1997), pp. 12–22.

²² W. Ncube, ‘Constitutionalism, Democracy and Political Practice in Zimbabwe’, in I. Mandaza and L. Sachikonye (eds), The One-Party State and Democracy (Harare, SAPES Trust, 1991), p. 156.

²³ De Bourbon, ‘Human rights and the Independent Bar’, p. 18

²⁴ E. Dumbutshena, ‘Address to the Harare Magistrates and Prosecutors Forum, 15 Sept. 1989’, Legal Forum, 1, 6 (1989), p. 4.

²⁵ Ncube, ‘Controlling Public Power’, p. 18.

²⁶Ibid.

²⁷Ibid., p. 19.

²⁸ Interview, Tafadzwa Mugabe, human rights lawyer, Harare, 18 September 2010.

²⁹ B. Raftopoulous and A. Mlambo (eds), Becoming Zimbabwe: A History from the Pre-Colonial Period to 2008 (Harare, Weaver Press, 2009).

³⁰ The legal framework around land acquisition has been altered substantially since 2000. On the framework up to and including 2000, see T. Lebert, ‘An Introduction to Land and Agrarian Reform in Zimbabwe’, in P. Rosset, R. Patel, and M. Courville (eds), Promised Land: Competing Visions of Agrarian Reform (New York, Institute for Food and Development Policy, 2006), pp. 40–56; also see S. Moyo, ‘The Political Economy of Land Acquisition and Redistribution in Zimbabwe, 1990–1999’, Journal of Southern African Studies, 26, 1 (2000), pp. 5–28.

³¹ Interview, Tafadzwa Mugabe, human rights lawyer, Harare, 18 September 2010. For an overview of the Supreme Court's decisions concerning the lawfulness of the land reform programme, see IBA, Mission Report, pp. 42–5.

³² Interview, Tafadzwa Mugabe, human rights lawyer, Harare, 18 September 2010.

³³ Gubbay, ‘The Light of Successive Chief Justices’, p. 15.

³⁴ Interview, Tafadzwa Mugabe, human rights lawyer, Harare, 18 September 2010.

³⁵ T. Moustafa and T. Ginsburg (eds), Rule by Law: The politics of courts in authoritarian regimes (Cambridge, Cambridge University Press, 2008), p. 14.

³⁶ The appointment criteria are set out in the Zimbabwe Constitution (2005, amended), chapter VI, section 76. The President similarly appoints the majority of the members of the Judicial Service Commission. See Chapter VIII, section 90.

³⁷ IBAHRI, Zimbabwe: Time for a New Approach (London, IBA, September 2011).

³⁸ Interview, Tawanda Zhuwarara, human rights lawyer, Harare, 7 September 2010.

³⁹ Sections of POSA were incorporated under the Criminal Law (Codification and Reform) Act of July 2006. The Criminal Act expanded the powers under which ZANU(PF) could prosecute the political opposition, at times with ‘drastic increases in the penalties for these offences’. See Institute of Justice and Reconciliation and SPT, ‘Policing the State’: An Evaluation of 1,981 Political Arrests in Zimbabwe 2000–2005 (Johannesburg, SPT, December 2006), p. 17.

⁴⁰ For an overview of the state media coverage, see ‘Weekly Media Update’, Media Monitoring Project Zimbabwe (November 2002), available at http://www.mmpz.org/sites/default/files/articles/2002-43.pdf; B. Mangwende, ‘Chigovera Forced to Retire’ Daily News, 17 April 2003, available at http://www.zimbabwesituation.com/apr17a_2003.html#link5, both retrieved on 1 October 2012.

⁴¹ ‘Zanu PF's Final Blow On Judiciary?’, Financial Gazette, 21 November 2002, available at http://www.zimbabwesituation.com/nov22a_2002.html#link13, retrieved 2 October 2012.

⁴² Sobusa Gula-Ndebele reportedly backed a faction led by Vice-President Joice Mujuru and her husband, the retired military commander General Solomon Mujuru. They competed with a second faction led by then Minister of Housing Emmerson Mnangagwa, who had close ties to the Minister of Justice Patrick Chinamasa.

⁴³ Media coverage includes: C. Manyukwe, ‘Chinamasa Under Probe’, Zimbabwe Independent, 28 April 2006; C. Manyukwe, ‘Chinamasa Trial in Doubt’, Zimbabwe Independent, 30 June 2006; C. Manyukwe, ‘Chinamasa Set to Deny Charges’, Zimbabwe Independent, 28 July 2006; ‘Retired Magistrate Takes Over Chinamasa Trial’, New Zimbabwe, 4 August 2006; T. Maphosa, ‘Zimbabwe Justice Minister's Trial Finally Under Way’, Voice of America, 9 August 2006, all available at http://www.zimbabwesituation.com/, retrieved 3 October 2012.

⁴⁴ The Attorney General's office initially appealed against this judgement, but then withdrew. See L. Nkatazo, ‘AG Appeals Against Chinamasa Acquittal’, New Zimbabwe, 23 September 2006; C. Manyukwe, ‘No Way Out for Chinamasa, Says AG's Office’, Zimbabwe Independent, 29 September 2006; C. Manyukwe, ‘Chinamasa off the Hook’, Financial Gazette, 16 February 2006, all available at http://www.zimbabwesituation.com/, retrieved 3 October 2012.

⁴⁵ ‘Zimbabwe State Prosecutor Refuses to Handle Treason Case After Threats from Security Agents’, Zim Online, 13 March 2006; C. Manyukwe, ‘Prosecutor in Chinamasa Case Resigns’, Zimbabwe Independent, 13 October, 2006, both available at http://www.zimbabwesituation.com/, retrieved 3 October 2012. Levison Chikafu previously worked on cases brought against ZANU(PF) supporters. He was intimidated by war veterans and Central Intelligence Organisation (CIO) operatives when he pushed for the arrest of CIO operative Joseph Mwale on murder charges, and during his prosecution of two ZANU(PF) MPs, Enoch Porusingazu and Fred Kanzama, on charges of theft.

⁴⁶ L. Guma, ‘Chikafu Case Highlights Intimidation of the Judiciary’, SW Radio Africa, 25 April 2007, available at http://www.zimbabwesituation.com/apr26_2007.html#Z3, retrieved 9 October 2012.

⁴⁷ It was alleged that he had met former National Merchant Bank of Zimbabwe (NMBZ) chief executive James Mushore. Mushore had fled Zimbabwe in 2004 when he was accused of breaching foreign-exchange laws. Gula-Ndebele, it was argued, had assured Mushore that he would not be prosecuted. Transparency International, Johannes Tomana's Reign as Attorney General of Zimbabwe: A Trail of Questionable Decisions (Harare, Transparency International, 2011), p. 56; ‘Zimbabwe: Police Arrest Attorney General Gula-Ndebele’, Financial Gazette, 8 November 2007; N. Ncube, ‘More Woes for AG’, Financial Gazette, 15 November 2007; C. Manyukwe, ‘Hands-off, AG Warns Chihuri’, Financial Gazette, 14 December 2007, all available at http://www.zimbabwesituation.com/, retrieved 3 October 2012.

⁴⁸ C. Chimakure and D. Muleya, ‘Gula-Ndebele Tangled in Succession War’, Zimbabwe Independent, 23 November 2007, available at http://www.thestandard.co.zw/2007/11/23/gula-ndebele-tangled-in-succession-war/, retrieved 3 October 2012.

⁴⁹ ‘Court Watch 2/2011 [Cases in the Supreme Court]’, Veritas (November 2011).

⁵⁰ Transparency International, Johannes Tomana's Reign, locates Tomana's political partisanship in an unwillingness to prosecute ZANU(PF) supporters accused of (political) crimes.

⁵¹ SPT, Walking a Thin Line.

⁵² ‘Ardent Mugabe Supporter Now AG’, Zimbabwe Times, 18 December 2008; T. Sibanda, ‘MDC Decries Appointment of Johannes Tomana as Attorney-General’, SW Radio Africa, 18 December 2008, both available at http://www.zimbabwesituation.com/, retrieved 4 October 2012.

⁵³ Transparency International, Johannes Tomana's reign, p. 60. Jagada himself had succeeded Loice Matanga-Moyo, who had served as Director from 2000 to 2006, when she was forcibly removed from her post after ordering the prosecution of ZANU(PF) officials. L. Nkatazo, ‘Zimbabwe's Top Prosecutor Removed from Post’, New Zimbabwe, 11 December 2009, available at http://www.newzimbabwe.com/pages/judges9.14841.html, retrieved 4 October 2012.

⁵⁴ Interview, John and David, prosecutors, Harare, 10 September 2010.

⁵⁵Ibid.

⁵⁶Ibid.; ‘Chinotimba Sues Minister for US$19 Million for Loss of Business’, The Insider, 2 December 2011, available at http://www.insiderzim.com/stories/2964-chinotimba-sues-minister-for-us19-million-for-loss-of-business.html, retrieved 5 October 2012.

⁵⁷ Interview, John and David, prosecutors, Harare, 10 September 2010.

⁵⁸ Interview, Grace, former prosecutor, Harare, 16 August 2010.

⁵⁹ Law degrees could be obtained at the University of Zimbabwe from 1965, and Midlands State University from 2005. From 1989 on, the government closed the University of Zimbabwe many times following student protests. The Ministry of Justice, Legal and Parliamentary Affairs established the Judicial College in 1995; in September 1999, the college separated from the Ministry of Justice under the Judicial College Act. Through an 18-month taught course, the College primarily trained judges, magistrates, and prosecutors.

⁶⁰ Interviews with human rights lawyers David Hofisi, Harare, 12 August 2010, and Tafadzwa Mugabe, Harare, 18 September 2010.

⁶¹ Interview, John and David, prosecutors, Harare, 10 September 2010.

⁶² S. Mugari, ‘IMF Estimates Inflation at 150,000 per cent’, Zimbabwe Independent, 18 January 2008, available at http://www.zimbabwesituation.com/jan18b_2008.html#Z14, retrieved 5 October 2012.

⁶³ Interviews with human rights lawyers Lizwe Jamela, Harare, 6 September 2010; Tafadzwa Mugabe, Harare, 18 September 2010; David Hofisi, Harare, 11 August 2010; and Alec Muchadehama, Harare, 19 August 2010.

⁶⁴ Interview, Lizwe Jamela, human rights lawyer, Harare, 6 September 2010.

⁶⁵ Interview, John and David, prosecutors, Harare, 24 September 2010.

⁶⁶Ibid.

⁶⁷ F. Kuwana, ‘Gono Splashes US$1m in Bribes Ahead of Presidential Bid’, ZimDiaspora, 24 January 2009; F. Munyoro, ‘Judges get Vehicles, Goods’, The Herald, 1 August 2008, both available at http://zimbabwesituation.com, retrieved 3 October 2012; HRW, ‘Our Hands Our Tied’, pp. 17–18.

⁶⁸ Interview, Alec Muchadehama, human rights lawyer, Harare, 19 August 2010.

⁶⁹ A. Gubbay, ‘The Progressive Erosion of the Rule of Law in Independent Zimbabwe’, International Rule of Law Lecture (December 2009), p. 2.

⁷⁰ At the time of fieldwork in September 2010, Samuel Zuze was in the news for sentencing a young man to one year in prison for insulting President Mugabe. Allegedly, the man had called President Mugabe ‘old’: ‘Chipinge Man Jailed for Insulting Mugabe’, Radio VOP 3 September 2010, available at http://www.radiovop.com/index.php/national-news/4442-chipinge-man-jailed-for-insulting-mugabe.html, retrieved 2 October 2012.

⁷¹ Sokwanele, ‘Compromised Judgement: Magistrate Samuel Zuze's Offer Letter’, ThisisZimbabwe Blog, 30 January 2010, available at http://www.sokwanele.com/thisiszimbabwe/archives/5401; V. Gonda, ‘Magistrate's Conflict of Interest Exposed in Land Case’, SWRadioAfrica, 1 February 2010, available at http://www.zimbabwesituation.com/feb2_2010.html#Z5, both retrieved 2 October 2012.

⁷² Interview, Alec Muchadehama, human rights lawyer, Harare, 19 August 2010.

⁷³ Interview, John and David, prosecutors, Harare, 24 September 2010.

⁷⁴ Interview, John and David, prosecutors, Harare, 10 September 2010.

⁷⁵ Interview, Lizwe Jamela, human rights lawyer, Harare, 6 September 2010.

⁷⁶ Interview, Tawanda Zhuwarara, human rights lawyer, Harare, 7 September 2010.

⁷⁷ Interview, John and David, prosecutors, Harare, 10 September 2010.

⁷⁸ Interview, John and David, prosecutors, Harare, 24 September 2010.

⁷⁹ Interview, John and David, prosecutors, Harare, 10 September 2010.

⁸⁰Ibid.

⁸¹ At the time of our interview, John was awaiting trial. He was eventually acquitted. The full details of John's arrest have not been included, to help ensure his anonymity.

⁸² Interview, John and David, prosecutors, Harare, 10 September 2010.

⁸³Ibid.

⁸⁴Ibid.

⁸⁵Ibid.

⁸⁶ Interview, Sarah, former magistrate, Harare, 5 August 2010.

⁸⁷ Interview, Grace, former prosecutor, Harare, 16 August 2010.

⁸⁸ Interview, Sarah, former magistrate, Harare, 5 August 2010.

⁸⁹Ibid.

⁹⁰ Interview, Grace, former prosecutor, Harare, 16 August 2010.

⁹¹Ibid.

⁹² Interview, Alec Muchadehama, human rights lawyer, Harare, 19 August 2010.

⁹³ Interview, John and David, prosecutors, Harare, 10 September 2010.

⁹⁴Ibid.

⁹⁵ Dumbutshena, ‘Address to the Harare Magistrates and Prosecutors Forum’, p. 4.

⁹⁶ Interviews with Sarah, former magistrate, Harare, 5 August 2010; Grace, former prosecutor, Harare, 16 August 2010; Alec Muchadehama, human rights lawyer, Harare, 19 August 2010; John and David, prosecutors, Harare, 10 and 24 September 2010.

⁹⁷ Lund, ‘Twilight Institutions’, p. 700.

⁹⁸ Dumbutshena, ‘Address to the Harare Magistrates and Prosecutors Forum’; Ncube, ‘Controlling Public Power’.

⁹⁹ Interview, John and David, prosecutors, Harare, 10 September 2010.

Additional information

Notes on contributors

Susanne Verheul

Susanne VerheulDepartment of International Development, University of Oxford, 3 Mansfield Road, Oxford OX1 3TB, United Kingdom. E-mail:[email protected]