The state media’s use of politically inflammatory language ahead of the anticipated application for extension of time by Government to the Constitutional Court as recommended by SADC is a cause for concern because it undermines the judicial process by creating an impression that the matter has been pre-judged and will not be given fair consideration by the court. It is clear that the state media has chosen a side and there appears to be a concerted effort designed to sway the court in that particular direction.
This comes in a context where there has been a deliberate and concerted effort by the state media in the last fortnight to set up the MDC against the judiciary. It began with a story, repeated each day in varying forms, reporting on an alleged meeting at the Zimbabwe Lawyers for Human Rights (ZLHR) the effect of which is to suggest that the MDC is on a crusade against the courts.
Even assuming that a meeting took place, the insinuation that it was convened to launch an attack on the judiciary and to soil its image was designed to create a wedge between the MDC, ZLHR and the judiciary.
The fact that any client, whatever their station in life is constitutionally entitled to approach their legal representative and to have a meeting that is protected by the laws of confidentiality, is lost on the state media, preferring instead to read into the meeting some political machinations aimed at the judiciary. Section 69 (4) of the new Constitution guarantees the right of every person to be legally represented. Furthermore, the new Constitution provides for the right of access to the courts for the resolution of any dispute (s. 69 (3)). A person commits no wrong but is exercising a right when he approaches and meets his or her lawyer for legal advice and assistance.
It is highly unethical for a newspaper to publish such confidential details, let alone make interpretations that are designed to cause friction between a person or persons and the judiciary.
Details of the alleged meeting would ordinarily be protected by lawyer-client confidentiality. In recognition of the significance of protecting privileged information, the new Constitution states in Section 62 (4) that legislation may restrict the right of access to information on grounds of professional confidentiality. The reporter only need to consider a situation where one gets access to a transcript of his consultation with his medical doctor and such information is splashed in the public domain.
However, the problem has got worse in the wake of the SADC Summit in Maputo, with attempts to influence the decision-making process of the Constitutional Court on the application for extension of time in line with a SADC resolution becoming even more apparent.
The Herald edition of 17th June 2013 led with a story in which further statements were made that the MDC is against complying with the judgment of the Constitutional Court. In that article, Professor Lovemore Madhuku, Goodwills Masimirembga and Terrence Hussein are quoted extensively making comments that effectively pre-empt the judgment of the Constitutional Court even before the application directed by SADC has been made. The net effect of the article is to say that the Constitutional Court should and will dismiss the application by Government to extend the deadline for the harmonised elections in compliance with the SADC recommendation.
Four things are evident in these stories:
The state media is actually undermining, rather than strengthening or protecting the judiciary. It is not fair on the judiciary for people to publicly engage in a debate on the merits or otherwise of a matter that is under consideration or in this case, a matter that, as is commonly known, is going to be brought to the court’s attention.
In this regard, it is now common knowledge that the Maputo Summit recommended for the Government of Zimbabwe to approach the Constitutional Court to seek an extension of time to hold the harmonised elections. As guarantor of the GPA and the Inclusive Government, SADC recognised the legal and practical impossibility of holding free, fair, credible and legitimate elections before the deadline of July 31.
Knowing that the Constitutional Court will soon be seized with this crucial matter, the state media has gone into overdrive pre-judging the outcome of the case. For people to start discussing the merits of the matter and draw conclusions is prejudicial to the case. The idea seems to be to create an impression that an application following the SADC recommendation is a hopeless. It is akin to “trial by the media” whereby media coverage of a case creates an impression of guilt on the part of an accused even before he/she has been tried by a court of law.
In this particular case, it makes a hard job even worse for the court. This is an important case with serious implications for the future of this country and the media and commentators need to tread more carefully to avoid creating perceptions of unfairness and bias. It is wrong to pre-judge a case before it has even come before the judiciary when people know that it will definitely be brought to its attention. The way the reporting has been portrayed so far, one is swayed to believe that the effort is designed to influence the judges to make a ruling that is against the SADC recommendation.
The unfairness of the reporting on the courts is that even if the court were independently minded to refuse the extension of time, they have now been put in a difficult position where doing so would only confirm the fears of those who believe the state media articles were designed to influence them to rule as such. Because the state media has taken that particular position, it will put the court in an awkward position where if it makes a decision rejecting the application, the public will say, the court is simply toeing the line. This is not fair on the judges who will be seized with this critical responsibility to decide on a matter of immense public interest.
It is wrong to pre-empt the judgment of the court or to portray opponents as attackers of the judiciary and therefore setting up an imaginary fight. For the record, the MDC fought for a new democratic Constitution which includes critical provisions guaranteeing the independence of the judiciary. The judiciary is now more protected than it has been under the Lancaster House Constitution.
Further, as a confidence-building measure, the MDC agreed to the continuation of serving judges, including the fact that for the first seven years of the new Constitution, judges of the Supreme Court would also sit and serve in the Constitutional Court. None of the serving judges have reason to feel threatened by the MDC. The MDC stated after the Constitutional Court judgment that it respected the court’s decision. There was never any suggestion that the party would disobey or defy the order. When a party is critical of a judgment that is not the same thing as saying it is defying an order.
The most worrying issue is that the use of politically inflammatory language causes people to question whether the application for extension will ever get fair consideration by the court and this is not fair on the Constitutional Court. The state media has openly chosen a side rather than report objectively on the matter. The reports would be more objective if they at the very least made reference to views on the matter held by people other than those aligned to or who speak on behalf of one political party or outcome.
Overall, lawyers have a duty and responsibility to the court and ethical lawyers know well the importance of desisting from conduct that would otherwise compromise the courts or their processes.
Dr Alex Magaisa is an adviser to the Prime Minister of Zimbabwe and President of the Movement for Democratic Change Morgan Tsvangirai