Supreme Court Challenge

Roy Bennett

On May 26 two of South Africa's foremost constitutional lawyers will appear in Zimbabwe's Supreme Court to mount the most serious legal challenge yet to the continued incarceration of the country's celebrated prisoner of conscience, Roy Bennett. Due to appear before Zimbabwe's highest court in Harare on Bennett's behalf are Advocates Chaskalson SC and Gauntlett SC.

Roy Bennett was elected Member of Parliament for Chimanimani constituency in the 2000 Parliamentary elections. He is a leading member of the opposition Movement for Democratic Change (MDC) party who enjoys a huge popularity among his rural, almost entirely black, constituents. Fluent in the vernacular he was, until his forcible ejection from his farm in the eastern highlands, a successful coffee farmer, and respected as a good employer who had the interests of his employees very much at heart. Prior to the year 2000 he had been a staunch supporter of ZANU PF but, in response to the increasing levels of corruption and nepotism in the ruling party, he threw his weight behind the fledging opposition movement. Despite receiving death threats from senior ZANU PF politicians, a police commander and the local CIO boss, Bennett stood for the MDC and won by a huge margin.

He could hardly have imagined then the cascade of persecution that would follow, not only for himself and his family but for employees and those associated with him in any way. The record from 10 th May 2000 onwards shows a catalogue of vicious crimes directed against them by state sponsored agents. His farm, Charleswood Estate, suffered no fewer than 89 illegal invasions. Roy Bennett himself was arrested twice illegally and assaulted three times. His wife, Heather, then pregnant, was abused and held hostage with the result she lost the baby. Three young female employees were raped. A 24 year old employee was murdered and another was shot and wounded. Bennett's farm manager's house was burnt to the ground. Over 800 men and women (employees and their families) were chased from their homes. 700 head of cattle were stolen, others were axed and speared to death. The proceeds of 150 tonnes of coffee were stolen. The family home was looted and trashed.

While all this mayhem was continuing on his farm Bennett obtained no few fewer than 7 court orders, upholding his legal rights to the property. Yet those orders were contemptuously ignored by the ZANU PF chefs who continued with their plundering and illegal occupation notwithstanding. Chief among the opportunist politicians to defy court orders and profiteer at Bennett's expense has been Major General Mike Nyambuya, the ZANU PF governor for Manicaland. The ruling party has carried out a systematic campaign of violent persecution against Bennett, stripping him thereby of his home, his farm and his livelihood, while at the same time inflicting huge suffering on those close to him. ZANU PF's coup de grace was to remove Bennett's liberty, and deprive his constituents of their elected representative in Parliament.

On 18 May 2004 there was an incident in Parliament. The Attorney General, Patrick Chinamasa, engaged in a verbal attack on Bennett. He, the government's chief legal adviser whose administration was openly flouting the law, taunted the Member of Parliament for Chimanimani that his white ancestors were thieves and murderers. The irony could not have been greater. Unfortunately it proved just too much for Bennett, who responded by pushing Chinamasa to the floor. A brief scuffle ensued in which Bennett himself was assaulted and kicked while he lay on the floor by another ZANU PF MP, Didymus Mutasa.

The rest as they say is history. Parliament duly set up a Committee under the Privileges, Immunities and Powers of Parliament Act to investigate the incident. The composition of the Committee reflected the balance of power in Parliament, there being three ZANU PF members and two MDC. All concurred that Bennett was guilty of a contempt of Parliament but thereafter the Committee and Parliament split on party lines. The ZANU PF members of the Committee recommended a penalty of unprecedented severity, namely imprisonment with hard labour for 15 months, with three months suspended. The MDC members of the Committee voted against the imprisonment. The report was referred to Parliament which, despite hearing an unconditional apology from the offending MP, voted, again on strictly party lines (53-42), to carry out the recommended sentence. In effect therefore, ZANU PF which was the complainant and had a direct interest in the case, had set up the investigating Committee, had dominated that Committee and again had dominated Parliament which received and acted on the Committee's report – thereby ensuring the outcome desired by the party. ZANU PF had arrogated to itself the right to be informant, prosecutor, witness, judge and jury – yes, and executioner too ! It was a blatant case of political and racial bias. The ruling party had abused its Parliamentary majority in order to indulge its hatred of the man whom, more than most, it loves to hate. In so doing it stood in breach of the most fundamental tenets of natural justice.

Which is where the lawyers come in. Since October last year Roy Bennett has been languishing in one or other of Mugabe's filthy, over-crowded, germ-infested prisons. He is now held at the Chikurubi maximum security prison in which conditions are among the worst in the country. He has lost 27 kilograms in weight and is a gaunt shadow of his once robust self. Family and friends are very concerned about his health within this unhygienic environment in which the only food prisoners receive is said to be unfit for human consumption. Meanwhile his lawyers have mounted a number of legal challenges to his continued incarceration. The record to date shows interminable delays, postponements and plain procrastination by those charged under the Constitution with ensuring a ready access to justice for subjects whose rights have been infringed.

The latest challenge which reaches the Supreme Court on Thursday this week touches on some fundamental constitutional issues. Bennett's lawyers – among the most brilliant in the field – will be arguing both that the proceedings in which he was convicted and sentenced, and those sections of the Act under which the punitive action was taken, were alike ultra vires the Constitution. Their case will be that Bennett was denied an impartial hearing to which every accused is entitled. It is a part of their case too that the members of ZANU PF who convicted and sentenced Bennett themselves had a direct interest in the decision they were making – since by preventing Bennett from sitting in the House they created a vacancy in his constituency. (In fact Bennett was subsequently disallowed from standing for the seat in the Parliamentary elections on March 31)

The appeal also raises the issue of Parliament's failure to censure the misconduct, in the same incident, of the two ZANU PF MPs, Patrick Chinamasa and Didymus Mutasa. The lawyers are expected to point out how undesirable (and prejudicial) it was that the two were allowed to remain in Parliament and vote to convict and sentence Bennett, without Parliament having any regard to the question of their own culpability. In essence the case for Bennett is that he was a victim of a well- orchestrated plan to fix him by ZANU PF, for which their Parliamentary majority provided the means. This raises issues of political oppression and racial discrimination which, within the current tense political climate in Zimbabwe, are extremely sensitive to say the least.

The Supreme Court will also be asked to consider whether the punishment meted out was not grossly disproportionate to the offence. For such an offence of common assault by a first-time offender a criminal court would normally impose only a modest fine or even a caution and discharge. Considering the provocation suffered by Bennett and the unconditional apology he offered, the sentence imposed was all the more inappropriate.

Another constitutional point to be argued before the Supreme Court concerns the validity of Section 16 of the Privileges, Immunities and Powers of Parliament Act, which Bennett's lawyers will say violates the crucial constitutional principle of the separation of powers between the legislature and the judiciary.

This case therefore brings squarely before Zimbabwe's highest court matters of the utmost importance concerning a citizen's constitutional rights to liberty and to a fair trial in respect of any offence with which he is charged. It calls into question the use by the ruling party of the Parliamentary majority they enjoy in order to “fix” a member of the opposition who may have incurred their particular displeasure. By raising these issues Bennett is forcing the Supreme Court to consider fundamental matters of natural justice and the observance of basic human rights conferred and protected by the Constitution. Even more fundamentally the case directs attention to the crucial separation of powers of state upon which every subject's constitutional rights ultimately depend. It is therefore, on any reckoning, a major case which deserves the nation's – and the region's - closest scrutiny.

Clearly Roy Bennett would be the first to benefit from a favourable ruling. It would follow that he should be released from custody forthwith, rather than having to wait until June 28 when he might otherwise expect his freedom, taking account of the normal remission of sentence for good behaviour. All the freedom loving people of Zimbabwe who salute Bennett as a champion of truth and justice, would surely welcome that outcome. The nation itself surely stands ready to fete this courageous warrior for truth and justice who has suffered so grievously in the struggle for freedom. But as we have indicated the issues raised in this case go considerably further than Roy Bennett and his immediate right to liberty.

It is widely acknowledged that most of the Judges of the Supreme Court owe their present position to political patronage rather than to any great legal acumen or judicial experience. Nevertheless it is to be hoped that on this occasion at least when the eyes of the nation are upon them, and they are under the intense scrutiny of the international legal fraternity, as represented by the eminent South African Counsel who will be representing Bennett, that Chief Justice Chidyausiku and those sitting with him will remember that they are charged and required under the Constitution to dispense justice to all with fear or favour. In the final analysis it is they rather than Roy Bennett who are on trial in this instance, and though their past record gives one little hope they will have the judicial courage or independence to stand up to an overbearing Executive or a compromised Legislature, let us hope that in this case sheer legal professionalism will prevail. If it does not, then the Supreme Court of Zimbabwe will have shown the world it can no longer be regarded in any sense as the guardian of the rights and freedoms of ordinary Zimbabweans.