By Dr Tafataona Mahoso
“USAZOPARURA kana kukusha manyepo. Usazobatana nevakashata kuita uchapupu hwekunyepa.” — (Exodus 23:1)
“Chapupu chekunyepa hachizosiiwi chisikazi kujeziswa. Naye unoreketa manyepo haazohuruki.” — (Mazwi Akangwara 19:5)
‘Lawfare’ is a special form of psychological operations in which powers, organisations and political players who harbour real contempt for the rule of law will launch many unnecessary lawsuits for purposes other than the pursuit of justice or the rule of law:
l First, because they believe the courtroom is a good stage for making allegations which (even if they are defeated in court or rejected) will have the effect of tarnishing the defendant through unlimited repetition;
l Second, because unnecessary lawsuits have the effect of surprising the defendant and the public, whose eyes and thoughts happen to be focused on real constructive business and goodwill when the lawsuits hit them;
l Third, because the one launching the suit, the litigant, may be using donated or sponsored resources to pay the costs of litigation while the defendant is disadvantaged by a tightly controlled and tightly limited budget;
l Fourth, because false accusations are always stunning in their impact on public perception while balanced and dignified rebuttals always appear to be defensive and may run the risk (media-wise) of being boring to publics whose attention spans are always limited;
l Fifth, in political cases, the effect of litigation is that it is adversarial to the extent of creating individual, personalised litigants while obliterating the huge numbers of ordinary citizens who have a lot more to lose in the matter at stake than the named litigant and respondent.
The public may end up being prejudiced simply because (in the media) the named litigant is photogenic, has charisma, whereas the named defendant may not;
l In the sixth place, those who engage in ‘lawfare’ believe that it is possible for the targeted defendant to win the legal battle while losing the image battle, the perception battle.
In the case of MDC Alliance and Nelson Chamisa versus the Zimbabwe Electoral Commission (ZEC), ZANU PF and Emmerson Dambudzo Mnangagwa, the inauguration of the winner was effectively delayed; doubt and uncertainty were planted, especially in the minds of those such as foreign investors and Zimbabweans in the Diaspora with limited knowledge of what was happening on the ground.
Therefore, what is important to remember is, given resources and encouragement, certain organisations or individuals may go to court even in full the knowledge that they do not have a bona fide case.
The damage on the defendant and the public interest is of course much far worse if faulty litigation results in a faulty judgment as well.
In the most recent Constitutional Court case, the Judicial Services Commission helped to reduce the perception damage to the public interest by allowing the whole court process to be broadcast live.
For those who had the time to watch, and did bother to watch, it was clear the litigants did not have the primary evidence to sustain their allegations.
But by the time of the hearing and the final judgment, much damage had been inflicted on the public interest, far beyond the monetary cost of mounting the defence for the plaintiffs.
Let us look at past cases where both the litigation and the court’s judgment were faulty.
In 2012, Judge Hans Fabricius of the North Gauteng Court of South Africa issued a judgment supposedly authorising South African prosecutors and investigators to enter Zimbabwe, investigate and arrest alleged perpetrators of human rights abuses committed during the 2008 elections.
While the then Minister of Justice and Legal Affairs Cde Patrick Chinamasa said the judgment was not enforceable, the importance of that judgment did not lie in its legal status but its ideological status as an event along the global conveyer belt of lies called mass media.
To understand this significance, readers may wish to refer to an equally faulty judgment issued by yet another white racist judge in September 2008.
In Eight Days in September: The Removal of Thabo Mbeki, by Reverend Dr Frank Chikane, who was the director-general of the South African presidency as well as Chief Secretary to Cabinet under former South African President Thabo Mbeki, Chikane wrote:
“The fatally flawed judgement that was later dismissed by the judges of the Supreme Court of Appeal (SCA) was the trigger to the removal of Mbeki from office.
Clouds had been gathering for some time but by the week of 12 to 19 September 2008, those occasioned by the (Chris) Nicholson judgement were ominous and began to suggest that Mbeki could be removed from office (sic).”
In other words, Judge Chris Nicholson’s judgment in the KwaZulu-Natal High Court, was timed to coalesce into a gathering storm which, without that judgment, could have cleared without sweeping a whole administration and its leader out of office in violation of the Constitution.
There were several parts to Nicholson’s judgment.
The provocative and totally unnecessary and unwarranted part was what inflicted the most damage:
“What was alarming…were the inexplicable, damning comments Nicholson made in the judgement about Mbeki and others who worked with him, including his Cabinet… (Too late after Mbeki’s removal) the SCA ruled that the remarks made by Nicholson about Mbeki and those who worked with him had no basis and were extraneous to the case before him.
The reality is that none of the persons referred to (in Nicholson’s extraneous remarks) were given an opportunity to defend themselves.”
In the North Gauteng Court’s judgment by Hans Fabricius in May 2012, exactly the same strategy was used.
Zimbabwe was not represented and yet it had everything at stake: whether or not the complainants’ case was based on facts; whether or not the complainants had exhausted the legal process in Zimbabwe; whether or not Zimbabwean authorities would allow South African authorities to enter their jurisdiction to enforce such a judgment; and so on.
What seemed to
matter was the timing of the spurious judgment.
It was apparently meant to coincide with other developments in Zimbabwe, including:
l The visit to Zimbabwe by UN High Commissioner for Human Rights, Navethen Pillay, who is originally South African;
l The call by churches in Zimbabwe for a National Day of Prayer on May 25 2012;
l The Africa Day and African unity celebrations on the same May 25 2012;
l The congress of the African Travel Association taking place the same week in Zimbabwe;
l The Zimbabwe-European Union Dialogue taking place at the time of the judgment; and the
l General Assembly of the World Federation of Democratic Youth taking place in Harare in the fourth week of the same month of May 2012.
Indeed, the Fabricius judgment became part of a pattern which had been repeated before as part and parcel of the Western illegal regime change project against Zimbabwe.
The conventional, foreign-driven, training of both lawyers and journalists in Zimbabwe prevented many from developing deeper and wider readings and understandings of judicial and quasi-judicial rulings affecting the destiny of the country and interests of the majority.
Much of the resulting damage to the interests of the majority arose not just from direct legal effects of the rulings but also from the propaganda effects, from the ideological effects, which the court hearings and negative judgements communicated to the whole world and to the local population.
If we conclude by returning to the harmonised elections in Zimbabwe, it is easy to note the following facts:
l The MDC Alliance was supposed to limit its campaign propaganda to the purpose of defeating ZANU PF and other contesting parties.
l The Alliance instead shifted its focus from its political opponents in order to target and tarnish the referee, the Zimbabwe Electoral Commission.
l When targeting ZEC seemed not to produce the results wanted, the Alliance sought to worsen its attacks by conflating the image of ZEC with those of ZANU PF and the entire state and its institutions such as the police, the military, the civil service, the ZBC and others.
Even after the judiciary stepped in as an extra layer of neutrality in the matter and delivered the final judgment in legal terms, it was clear that the MDC Alliance and forces providing resources for litigation were not aiming at a legal settlement.
This fact became clear when The Zimbabwe Independent of August 24 2018 anticipated the Alliance’s legal defeat and shifted the issue outside the ConCourt again, alleging: ‘How Government Sabotaged Chamisa Court Case.’
Instead of focusing on the lack of primary evidence to prove allegations as the key reason for the Alliance’s legal defeat, The Zimbabwe Independent sought to blame failure by the Alliance’s alleged external lawyers to secure temporary registration as officers of the court in Zimbabwe.
There was not even an attempt to explain how so-called external legal experts were supposed to create for the Alliance the primary evidence which even those participating as agents, voters and observers in the actual election at every one of the 10 000 polling stations had failed to find.
Dr Tafataona Mahoso writes in his personal capacity as a media academic.