Africa 2010- Building Africa’s moral capital – Chinamasa and the sub judice rule

OPINION – During a House of Assembly question-and-answer session of last Wednesday, 17 November, 2010, Hon. P. Chinamasa, Minister of Justice, said only Mr Mawere's side of the story was being heard fully cognisant of the fact that I am not permitted like he is to address the full house of Parliament.

Which side was he talking about when there is only one side in Parliament?

It is the side of Honourable Members of Parliament and yet on this historic day, Hon. Chinamasa referred to me as Hon. Mawere designed to disguise the fact that all he wanted was an opportunity to undermine the very rule of sub judice that he sought mischievously to uphold by attempting to prevent the Portfolio Committee on Mines and Mining Development from hearing my side of the story.

Hon. Chinamasa is a lawyer and by appointing him as Minister of Justice and Legal Affairs, the President must have applied his mind on his suitability to administer the justice portfolio.

The promotion of justice and equity must be important to any state actor. For without justice, there can never be equity and peace.

The principle enshrined in the Constitution that one cannot be a judge unto his cause must be seen to be applied and yet the factual and legal matrix of the SMM matter would seem to suggest that Hon. Chinamasa lives in another world where his side only must be heard and prevail.

SMM was placed under the control of a state appointed Administrator in September 2004.

To the extent that this nightmare has taken 6 years confirms that Hon. Chinamasa is the king in Zimbabwe.

One has to bear in mind that in May 2009, I met President Mugabe in South Africa and history will record that he did not prevail against Hon. Chinamasa even after benefiting from Dr. G. Gono’s advisory report whose conclusion was that SMM could not be constructively and legally indebted to the state and more importantly that the allegations of externalisation were not supported by any facts.

Any rational person would be entitled to ask the question what precisely is the state of mind of Hon. Chinamasa.

How can a Minister of Justice seek to prevent a committee of parliament from gathering facts on an important national issue while abusing the sub judice rule?

It was not surprising; therefore, that the Clerk of Parliament had to intervene to restore the credibility of Parliament because after 6 years one must accept that notwithstanding the formation of the inclusive government there is no one who can bring Hon. Chinamasa to book for he is a critical player in the implementation of the GPA.

On Monday, 15 November, 2010, Hon. Chinamasa wrote a letter to the Speaker of Parliament requesting that the hearing must be stopped and yet only a few weeks ago his associate, Mr. Gwaradzimba, appeared before the same committee without any interference.

This begs the question of why Hon. Chinamasa would seek to gag me and not Gwaradzimba.

According to Hon. Chinamasa, the matters to be discussed were sub judice and, therefore, in his opinion Parliament should not have heard my side of the story and more significantly should not have dealt with the SMM matter until the resolution of matters that are before the court.

By calling me to give evidence to the Committee it is being suggested by Hon. Chinamasa that Parliament was contemptuous of the court process.

What is it that is before the court?

In the letter to the Speaker, Hon. Chinamasa cited three matters that are before the court. The first being an application by Africa Resources Limited (ARL) & others challenging in the Supreme Court the constitutional validity of the Reconstruction Act. This application has no criminal element in it.

The second matter involves a challenge by me and others on a finding made by a Panel chaired Gwaradzimba’s Partner assisted by Manikai that I be identified as culpable and liable for SMM’s alleged indebtedness. Once again this is a civil matter and if the Supreme Court rules that the Reconstruction Laws are unconstitutional then naturally this case falls away.

The third matter involves an application to set aside the order granted in chambers by Justice Kamocha confirming the reconstruction scheme. Once again, this case will fall away if the Reconstruction Laws are declared to be unconstitutional.

It seems, therefore, that the only case pending relates to the constitutional validity of the Reconstruction Laws.

This matter was heard by the Supreme Court in June and judgment is pending.

If the Court rules that the Reconstruction Laws are ultra vires the constitution, then obviously all the actions of the Administrator and Hon. Minister in giving life to the so-called reconstruction of SMM will be declared null and void.

Although the Minister would like the world to believe that his actions are motivated by a pursuit of some national interest, the truth of the matter is that he is scared that the public may get to know how state powers have been borrowed unconstitutionally to settle personal battles.

We now come to the sub judice rule, a rule that the Minister now conveniently wants to use to prevent me from being heard while spending a lot of money issuing statements and paying for the advertisements of self serving malicious and defamatory allegations against me.

The rule regulates the publication of matters which are under consideration by the court. The rule normally applies to criminal proceedings and not civil matters as explained above.

Publication of material which is sub judice comprises contempt of court, a crime which is punishable.

There are two forms of contempt of court i.e, statutory and common law.

I would presume that Hon. Chinamasa was referring to common law contempt that targets any other action which is intended to interfere with the administration of justice, including interfering with pending or imminent court proceedings.

Both statutory and common law contempt of court is concerned with the possibility that a juror, witness or lay judge may be influenced by material which is published about legal proceedings.

Hon. Chinamasa is fully aware that the matters that are before the Court do not involve a juror, witness or for that matter a lay judge.

Why then would he be afraid to openly discuss the rationale behind placing a private company under the control and management of a person appointed without the involvement of the courts if he respects the rule of law and the doctrine of separation of powers?

All the matters before the court do not involve any disclosure of confidential court documents.

If anything, the four press statements issued by Hon. Chinamasa represent an unprecedented attempt by a state actor to influence proceedings and intimidate the judiciary.

If Hon. Chinamasa can openly try to intimidate Parliament only God knows what he is doing behind the scenes to intimidate the judiciary.

It would be wrong to suggest that the intention of the Portfolio Committee in holding hearings on the SMM matter was to prejudice any legal proceedings underway.

It is only the court that can make a finding of contempt and not a litigant i.e. Hon. Chinamasa in this case.

Hon. Chinamasa by being the driving force of the whole enterprise of unlawfully and unconstitutionally placing SMM under reconstruction and depriving of my constitutional rights must accept that he is now a witness rather than an innocent party to the SMM saga.

To the extent that no one has had the courage to bring Hon. Chinamasa to book from the Executive branch of the state, one must conclude that there is consensus that the Reconstruction Laws serve some national purpose. This then leaves the legislature to independently and impartially arrive at its own conclusion. The judiciary is already seized with the matter.

It is important that the law that Hon. Chinamasa and Gwaradzimba rely upon be interrogated openly and transparently.

It is after all the law of the land and the victim today may be me but tomorrow it may be anyone.

I feel privileged to be one of the pioneer and significant victim that are black. This matter is too important for it to be kept in the closet.

There are constitutional questions that have to be resolved and more importantly the actions of Hon. Chinamasa and his private sector associates in bringing this absurdity must be unpacked in the national interest.

It would suit Hon. Chinamasa to convert the SMM saga into a personal matter because this has regrettably been the modus operandi in post colonial Zimbabwe.

Based on the above, I see no impediment for Parliament to openly discuss this matter and more importantly for the media to use this example to inform the public about the dangers of concentrating power in the hands of blind people with toxic intentions.

The kind of behaviour displayed by Hon. Chinamasa poses a significant risk to nation building.

Zimbabwe has been a victim for too long of misguided policies and actions by state actors who cannot make a difference between the state and their personal interests.

The Zimbabwe that we want to see cannot be a Zimbabwe dominated by misguided policy makers whose actions are informed by personal interests.

What time is it in Zimbabwe? It is time to expose the kind of unacceptable public morality that seems to provide the motive force for people like Hon. Chinamasa.