By Dr Tafataona Mahoso
IT was not by accident that the issue of African aesthetics and the symbolic meaning of chiefs’ and judges’ regalia raised at the Gweru meeting of January 13 2018 was deleted from most media reports.
It was not by accident that one case of a Zimbabwean chief qualifying to practice Roman Dutch Law and English Common Law was highlighted by one of the local dailies on January 28 2018.
The same media are not asking why lawyers trained in Roman-Dutch Law do not go on to study and develop African living law.
The reader should perhaps revisit Paragraph 5 of Section F of the signed Lancaster House Agreement of December 21 1979 concerning the Judicature, which said:
A person will not be qualified to be appointed as a judge of the High Court (in Zimbabwe) unless
a. he is or has been a judge of a superior court in a country in which the common law is Roman-Dutch or English and English is an official language; or
b. he is or he has been for not less than seven years, qualified to practise as an advocate in Zimbabwe or in a country in which the common law is Roman-Dutch or English is an official language. Experience in a country where the common law is English will count only in the case of citizens of Zimbabwe.
In one stroke, this agreement entrenched English common law and Roman-Dutch law as culture, as language, as ideology, as practice and as law training in Zimbabwe and against African living law.
It is not only ‘human rights’ which are framed in the neo-liberal Roman-Dutch and Anglo-Saxon manner; it is also the concept of law, rule of law and legal culture which are similarly framed and defined, so that these values have been set, at least within the judiciary, the law society, and NGOs associated with safeguarding white imperial interests here.
To appreciate this fact, we turn to Morton Mintz and Jerry S. Cohen in Power Incorporated: Public and Private Rulers and How to Make Them Accountable.
The authors point out that judges in Western civilisation are meant to be the equivalent of Plato’s Philosopher-Kings.
The authors refer to US Judge Learned Hand who, in 1803, demonstrated that the role of a judge in Western civilisation was steeped in the religion, philosophy, literature and history of the West so much that every judge in that society must have read scores of writers from Socrates and Plato to (William) Shakespeare, (John) Milton, (Niccolo) Machiavelli and (Karl) Marx in order to know the meaning of his or her own work.
“The words he must construe are empty vessels into which he can pour nearly anything he will. (Judges) must be aware that there are, before them, more than verbal problems; more than final solutions cast in generalisations of universal applicability. They must be aware of the changing social tensions in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined.”
This culture-based approach to law development is what is missing in Zimbabwe and our media do not raise the issue.
Instead of developing African law and its own culture in terms of these principles, we have chosen to borrow Roman-Dutch Law, English Law and their culture.
This is the culture, transferred roots, stem and branches, to independent Zimbabwe via Lancaster.
‘The law’ in Zimbabwe was to be the same as English and Roman-Dutch traditions.
The former Secretary-General of the Commonwealth, Shridath Ramphal of Guyana, recognised the problem of the law as tradition and tradition as law.
On July 29 1977, Ramphal addressed the Commonwealth Law Conference and cited Justice Holmes to make his point.
“The law has been called ‘the Government of the living by the dead’. In the nature of the law, such epithets are to some extent inevitable. But it is equally true, as Justice Holmes once said, that ‘the present has a right to govern itself… and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity’. May I suggest, in the spirit of Holmes that, as lawyers, we all too often make a virtue of that necessity — ignoring our duty to be creative social engineers of the present and enlightened architects of the future (which) our works must inspire but cannot determine.”
The meaning of Ramphal’s insight when applied to Zimbabwe is that we prefer to be ruled by dead English and Roman-Dutch ancestors through their legal and cultural traditions which we have happily entrenched; but we hate to be ruled by our own ancestors and founding fathers and mothers whose wisdom is embedded in the same African living law which helped us to define and defeat white settlerism.
As a result, throughout the seven seminars called ‘Developing Human Rights Jurisprudence: The Domestic Application of International Human Rights Norms’ and organised by the UK and US for the Commonwealth, from Bangalore in 1988 to Georgetown, Guyana, in 1996, only one participant seemed to have protested against the universalisation of the values of the Anglo-Saxon tribe enough to be acknowledged in the seminar report.
At the 1992 seminar at Balliol College, Oxford: “The Chief Justice of Pakistan drew attention to the statement made in the Bangalore Principles that it is necessary to take fully into account local laws, traditions, circumstances and needs. He emphasised that international human rights norms could not, in his view, override national constitutional standards.”
But this disclaimer was only the exception that proved the rule of the neo-liberal, Anglo-American tribe in these seminars.
Zimbabwe faithfully participated in all the seminars through its chief justice.l From Page 11
This meant that Zimbabwe went even beyond the requirements of the Lancaster House Agreement to ensure that the law in Zimbabwe was synonymous with English and Roman-Dutch traditions.
Each of the seven seminars ended with a set of adopted ‘Principles’ or with a ‘Declaration’ or ‘Confirmation’ or ‘Affirmation’ which was to be cited subsequently as a source of some authority or commitment binding on the participating countries in an implied and most ambiguous way.
The February 1988 seminar in India ended with the Bangalore Principles; the April 1989 seminar in Zimbabwe ended with the Harare Declaration on Human Rights; the November 1990 seminar in the Gambia ended with the Banjul Affirmation; the December 1991 seminar in Nigeria ended with the Abuja Confirmation; the September 1992 seminar in Britain ended with the Balliol (College) Statement of 1992; the September 1993 seminar in South Africa ended with the Bloemfontein Statement; and the September 1996 seminar in Guyana ended with the Georgetown Conclusions.
Taking into account the observations by Mintz and Cohen in reference to Judge Learned Hand, the values which were being repeated, the values which were being declared, affirmed and confirmed, the values which were being assumed before being concluded throughout the seven seminars were the values of the Anglo-American tribe universalised.
And Zimbabwe participated dutifully, through its chief justices.
A look at some of the summaries is instructive.
At the end of the very first seminar at Bangalore, India, a few things were accomplished.
The first was the agreement that lawyers, judges and chief justices were a special breed of people and that the judicial knowledge to be collected, developed and disseminated through these seminars was intended to be ‘of practical relevance and value’ to them.
The second achievement of the seminar was the apparent agreement on an obstacle to unversalisation which these lawyers, senior judges and chief justices needed to remove by working together. Principle Number 4 of the Bangalore Principles stated thus:
“In most countries whose legal systems are based upon the common law, international conventions are not directly enforced in national courts unless their provisions have been incorporated by legislation into domestic law. However, there is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law — whether constitutional, statute or common law — is uncertain or incomplete.”
Principle Number 5 betrayed the bias of the organisers, saying: “This tendency is entirely welcome…”
In other words, lawyers and judges who made mistakes on the side of presumed universal principles even against their own national constitutions would be encouraged and most welcome.
Principle Number 8 removed any doubt as to which was superior, national law or presumed international ‘obligations’, saying: “…where national law is clear and inconsistent with international obligations of the state concerned, in common law countries the national court is obliged to give effect to national law. In such cases, the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates a breach of an international legal obligation which is undertaken by a country.”
In other words, the seminar concluded by instructing national courts to make supposedly universal obligations of the state superior to national obligations.
The seminar also concluded that it was: “…essential to redress a situation where, by reason of traditional legal training which has tended to ignore the international dimension, judges and practising lawyers are often unaware of the remarkable and comprehensive developments of statements of international human rights norms.”
Finally, Bangalore identified the entry points through which neo-liberalism, in the hands of the Anglo-American tribe, would transform judiciaries in Commonwealth countries so that they would willingly treat national constitutions and national laws as inferior to presumed universal principles.
These entry points were to include: “…changing and funding the syllabi of universities and colleges; changing and funding the basic training and refresher courses for lawyers, judges, magistrates and law-enforcement officers; changing and funding law libraries in the targeted countries; creating and funding data-bases for lawyers, judges and law enforcement officers in the targeted countries; and creating and funding information dissemination networks for lawyers, judges and law-enforcement officers in the targeted countries.” (Commonwealth Secretariat and Interights, 1998.)
In other words, there was to be no training for African chiefs as magistrates and judges using African living law in their own right and if such training was to be developed, it would not be funded by donors. Madzimbahwe would have to fund it themselves.
But given the biases prevailing in our Parliament and the JSC against African living law, it remains to be seen who is going to fund the development of indigenous law.
The universities perhaps?