"Stop creating false controversies" – By Jonathan Moyo

Is it right for the leader of the main MDC, Morgan Tsvangirai, to demand that he and his party should have been consulted by President Robert Mugabe on various national issues including the appointments to key State institutions, such as Attorney-General and Governor of the Reserve Bank of Zimbabwe, when Tsvangirai has not been sworn in as Prime Minister in terms of the September 15 2008 political agreement between Zanu-PF and the two MDC formations or in terms of an enacted Constitutional Amendment Number 19 currently before Parliament?

Was it right for the Judge President of the High Court, Justice Rita Makarau, to castigate lawyers who scandalously criticise the judiciary outside the court process when they lose a case?

And was it right for the new Attorney-General, Johannes Tomana, to declare that he is a proud Zanu-PF member or supporter?

A false controversy has erupted following a report in The Herald last week that Tomana says he is a proud member and supporter of Zanu-PF. According to those trumpeting the controversy, and there are too many to mention, it was wrong and scandalous for Tomana to declare his political affiliation simply and only because he is the country’s Attorney-General who supposedly should have nothing to do with politics whatsoever.

But this position is at best naive and at worst false. To begin with, there is no Zimbabwean today — excluding those who are brain dead — who does not support or belong to either Zanu-PF or the MDC. In today’s highly charged politics in which our very survival as a nation is at stake, neutrals have become endangered species and the same goes for independents.

This fact has been lost to those who are bent on generating a false controversy over Tomana’s declaration that he is a proud member and supporter of Zanu-PF. Even more compelling is that it is not a crime to be a member of Zanu-PF or to support it. Quite the contrary, Zimbabwe’s Constitution guarantees and protects freedom of association for all Zimbabweans regardless of their professions or status. In any event, despite suffering from self-evident leadership and policy failures, Zanu-PF remains the only major political party whose declared principles and heritage speak to the unshakable fundamentals of Zimbabwe’s nationhood.

The idea that an attorney-general in a constitutional democracy cannot or should not be a member or supporter of a political party is preposterous and primitive, which is why it has no precedence in the civilised world. For example, the incoming attorney-general in the United States under Barack Obama’s administration, Eric Holder, is a well-known and long-standing Democrat and there has been no attempt by the Republicans or anyone else to disqualify him on grounds of his political affiliation.

Last week, the South African Supreme Court ruled that the fact that acting national director of that country’s National Prosecution Authority (NPA) — Mukotedi Mphse — is a political appointee is irrelevant and did not necessarily mean that his decision to prosecute Jacob Zuma, the president of the ANC, involved political meddling because Mphse’s office has clear constitutional and legal authority that that stand as guideposts for determining whether his decisions or actions in Zuma’s corruption matter were lawful.

What this means is not only that the political affiliation of an attorney-general in a constitutional democracy is irrelevant to his or her work but also that as human beings attorneys-general are entitled to their political affiliation and to even make them public. As such, when Tomana declared that he was a proud member and supporter of Zanu-PF he was merely reminding us of the obvious fact that he is also human like everyone else.

This fact alone cannot give rise to a controversy save for a false one. Indeed, it is quite salutary that Tomana has been good enough to be transparent about his political affiliation. In jurisdictions that hold confirmation hearings for the position of attorney-general and others, this fact would have come out in the hearings without any fuss being made.

For the avoidance of doubt, in Tomana’s case the matter would have been different if there were serious questions about his qualification as a lawyer. It is common cause that prior to his elevation to his current position he was deputy attorney-general heading the prosecution directorate during which there were no professional or even political controversies over his work.

It takes an attorney-general with integrity to declare his values while upholding his oath of office and professional responsibility as Tomana has done. There is no doubt that if Tomana had declared himself to be a member or supporter of the MDC those who are currently condemning him for his Zanu-PF affiliation would be congratulating him as a courageous human rights activist and some Western countries who have imposed illegal sanctions on Zimbabwe for political reasons would be showering him with all kinds of patronising awards.

The same forces that are kicking up a false controversy over Tomana’s political affiliation have been trying to do the same over some remarks by Judge President Makarau at the opening of the new High Court term last week about some lawyers whom she said were making "unfair attacks" which smacked of "lack of respect and utter contempt" for the judiciary.

Although Justice Makarau did not mention any names, one of the lawyers who recently made a clearly unwarranted and unfair attack on the judiciary is the reckless president of the Law Society, Beatrice Mtetwa, who after losing a High Court application in the ongoing Jestina Mukoko case contemptuously rushed to the foreign media to claim that her losing the application meant that "there was a total breakdown of the rule of law in Zimbabwe". Taken against the background of the prevailing situation in the country, Mtetwa’s scandalous statement was clearly calculated to harm not only the integrity of the judiciary but also Zimbabwe’s national interest itself, which is probably something easy for a Swazi national to do.

If Mtetwa truly believes that the rule of law in Zimbabwe has totally broken down, meaning the judiciary is no longer functioning, why then does she keep jumping from one court to another making all sorts of applications, including one that has exposed her shocking professional incompetence as a lawyer before the Supreme Court? Does she do that only to collect the hard currency, which she is apparently paid handsomely while claiming to be fighting for human rights? And when she uses the media, foreign or otherwise, to make her scandalous attack on the judiciary, does she expect the judges to use the same forum to respond to her paid malice?

It is most unfortunate that while these and related questions remain out there crying for answers, there are some divisive elements that have been deliberately distorting Justice Makarau’s remarks in order to create a false controversy by claiming that she said the public should not criticise the judiciary or that the judiciary is beyond criticism. Yet even a child can tell that Justice Makarau’s remarks were actually and specifically directed at lawyers like Mtetwa who think they have a free licence to criticise anyone and everyone, including harming the national interest without being held accountable.

The false controversies that are being created over Justice Makarau’s remarks and Tomana’s political affiliation are in the same rank with Tsvangirai’s disappointing attempt to generate some needless yet very damaging hullabaloo by claiming that President Mugabe has violated the September 15 2008 political agreement between Zanu-PF and the two MDC formations simply by continuing to govern, including making constitutional appointments, without consulting him and his MDC party. This is nonsense.

Given that the September 15 agreement was between and among political parties in their respective capacities, one does not have to be a specialist or a human rights activist to understand that there’s no way people who have taken an oath of office in government and are therefore accountable to the constitution and the law for what they do and say can freely share official and protected state information with people who have not taken a similar oath of office and who thus may be tempted to abuse the protected state information they receive during consultations without being held accountable in terms of the law.

It should stand to reason that in terms of the Constitution and the law Tsvangirai is not entitled to be consulted about any Government business or decision that is necessarily based on protected information until he is legally sworn in as Prime Minister and has thus taken an oath of office.

The issue is as simple as that.

If Tsvangirai wants to be consulted and to be part of the national decision-making process, then he should take the oath of office without which he will remain just a common citizen like anyone else.

Unless he wants to eat his cake and have it at the same time, the message is clear: no oath of office, no consultation.

In the circumstances, it is plainly ridiculous for Tsvangirai to try and create a false controversy that he has not been consulted in the making of a number of decisions by Government as if there has been any constitutional or legal basis for consulting him that has been violated.

The current volatile situation in the country requires that, unless they have hidden agendas to burn and crash the nation, the national leadership and others in positions of authority avoid the creation of false controversies that only serve to make a bad situation worse. SOURCE: Sunday Mail