Institute of Free Speech &Democracy in Zimbabwe

Monday, 25 July 2011

JUDICIAL INDEPENDENCE AND JUDGES’ APPOINTMENTS

IFSDZ PAPER 25 July 2011

JUDICIAL INDEPENDENCE AND JUDGES’ APPOINTMENTS

The decision taken by South Africa’s President, Mr Jacob Zuma to extend the term of the current Chief Justice by five years, effective from the 1^st of August 2011 in accordance with the provisions of section 8 (a) of the Judges Remuneration and Condition of Employment Act has raised controversy which has condensed into a legal battle centred on the constitutionality of the powers of the President as provided in the given legislation.

Pamela S. Karlan in ‘Two Concepts of Judicial Independence’ observes that ‘Lots of lawyers want to become judges; most judges want to keep their jobs; many sitting judges have aspirations for elevation to higher courts. Much of the discussion of judicial independence focuses on the threats posed by career considerations.’ This issue of extension of the Chief Justice’s tenure falls squarely into this observation. To begin with, the appointment of Chief Justice Sandile Ngcobo to his current position was not without controversy. Many thought deputy chief justice Dikgang Moseneke was going to be the natural replacement of the retiring Chief Justice Pius Langa but President Zuma justified Ngcobo’s appointment in the following words ‘The fact of the matter is that I have appointed a judge that I believe is capable,’(Sapa, 6 August 2009). Others thought that President Zuma had appointed Sandile Ngcobo prior to consulting other political parties represented in the National Assembly as required by the Constitution. The Democratic Alliance and the Inkhata Freedom Party complained in a joint letter dated the 9^th August 2009, that the President had gone to the public with an announcement of his nomination of Sandile Ngcobo as Chief Justice before consulting the other Political Parties represented in the National Assembly as required by the provisions of section 174 (3) of the Constitution of South Africa which provides that ‘The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.’ The political parties viewed President Zuma’s actions as not only unconstitutional but as a threat to judicial independence and they reminded the President in the letter dated 9^th August 2009, that ‘The reason why the South African Constitution requires the President to consult the leaders of all political parties in the National Assembly is clear: The National Assembly consists of 400 public representatives, democratically elected to represent the interests of all South Africans. As the judiciary is an independent body - an independence epitomised by the position of Chief Justice - it is appropriate that those Members of Parliament be consulted before such an appointment is made. In much the same fashion, it is necessary to consult the JSC, a representative body both of the National Assembly and the justice system more broadly. Not to consult the members of these institutions would result in the appointment being made entirely at the discretion of the head of the executive; a situation which lends itself to the abuse of power, undermines the Constitutional principle that there be a separation of power between the executive and judiciary and, in practical terms, runs the risk that the Chief Justice and those candidates eligible for the position of Chief Justice might act in a manner designed to find favour with the President.’ The fear which the political parties expressed in the quotation above can be captured as fear of ‘Judicial capture’ by the Executive.

Judicial Capture

Judicial capture ordinarily occurs if the process of appointment of members of the judiciary is partisan and renders them indebted, in respect of their appointment and security of tenure to the existence of a superior force or power and yet what lies at the core of the principle of the rule of law as amplifies by the doctrine of separation of powers between the legislature, executive and the judiciary is the equality and independence of the three arms of the State. President Zuma’s actions must be checked and the fears of the parties litigating in this matter are genuine. There is an apparent threat to judicial independence and those that believe in the rule of law and separation of powers must come to the fore and legitimately defend their faith. Judicial capture is cancerous and it attacks the pillars of judicial independence that are built on the foundations of judicial integrity, transparency, accountability and fairness. Judicial capture is also anathema to democracy and as such destroys democratic institutions converting them into partisan bodies. Once key State Institutions like the judiciary become partisan, the sense of justice will be equally corrupted. This is the gravity of this matter and it is therefore imperative to keep the President’s in check.

Whilst the fight in the Constitutional Court of South Africa is about the constitutionality of the Presidential powers and the desire by the interested parties to defend the independence of the judiciary, it also inadvertently pits these interests against the personal career interests of Sandile Ngcobo. It is the ultimate dream of every lawyer to become a Chief Justice of his or her country. What raises questions in this matter is the speed at which President Zuma attempted to fast track a bill into Parliament that seeks to regularise the extension of the Chief Justice’s tenure. The question is what exactly is the President’s interest in Sandile Ngcobo that he would risk his reputation and credibility for him? The issue is not necessarily about the abilities of the Chief Justice to discharge his mandate but how his perceived close relationship with the President is likely to affect the independence of the judiciary in South Africa. It will certainly save Sandile Ngcobo’s reputation if he were to formally distance himself from the actions of the President and retire on the 31^st of July 2011 or refuse to present himself for extension of his term as Chief Justice. Whilst we appreciate that not all controversy should force a judge to resign from his office, but if it is one as grave as this one which seriously threatens judicial independence then the judge must take steps that are necessary to protect his or her integrity and reputation. It is regrettable that Sandile Ngcobo’s personal interests are inadvertently contesting against national interests in judicial independence and he has a responsibility to extricate himself out of it. He must be prepared to censure his personal desires for the good of the judicial system in South Africa. This is why Pamela S. Karlan submits that ‘…much of the discussion of judicial independence focuses on the threats posed by career considerations.’ Very few people are unwilling to say no to overtures that promote and seemingly advance their careers even at the expense of selling their souls in disgrace. Inevitably, we suspect that the mere fact that the President was ready to fast track a bill to regularise the extension of the term as Chief Justice and he has not objected to that overture means that he is agreeable to the initiatives of the President. The Chief Justice must never become the ‘President’s man’ and this is what everybody fears and if the President’s powers in this regard are not kept in check, they may end up being abused. This is, however, not to suggest that President Zuma has abused his powers but the fears expressed by the litigants are genuine and something must be done to curb potential abuse of power by the President.

Our view is that Sandile Ngcobo has one option and that is to refuse the extension and protect the integrity and independence of the Judiciary.

Monday, 18 July 2011

Phone Hacking

Phone hacking: Are you safe?

Could anyone else be picking up your messages?

Phone-hacking scandal

Can my mobile phone be hacked? A question a lot of us have been asking over recent days, for obvious reasons. So I set about finding out about the threats to your phone and mine.

I called the network I've been using recently, O2, in search of reassurance. They told me that the original hacking technique which made the phones of anyone who used voicemail insecure does now appear to be obsolete.

It involved exploiting the fact that mobile phone operators gave customers default pin numbers - 0000 or 1234 - to access their voicemail from another phone.

O2 say that when they investigated back in 2006, 40 customers were identified as having had their voicemail accessed without authorisation by the News of The World's Clive Goodman and Glenn Mulcaire. After that the network changed its system.

"A customer is now required to personalise their PIN number from their mobile phone if they wish to access their voicemails from another phone. If a customer does not choose a PIN, they will not be able to remotely access any of their voicemails."

But there are other threats out there - just look at this post on the technology site CNET.

The security consultant Kevin Mitnick describes another technique that could allow someone to access your voicemail if they knew your phone number.

Caller ID spoofing allows anyone with a modicum of technical know-how to get access to your voicemail by convincing the system that it's you calling.

According to CNET, the technique has been used in the past to hack celebrities' messages. But rest easy - both O2 and Vodafone told me their systems were designed to make this technique impossible in the UK.

Beyond voicemail

Don't be too relaxed, though, if you are the owner of a smartphone.

The fact that these mini-computers now store vastly more data - from e-mails to calendar appointments to photos - means that any intrusion can be all the more damaging.

Last year a security firm called Vigilante Bespoke, which works to protect its clients' phones and computers from hacking, showed me just how vulnerable a modern smartphone might be.

“Start Quote

The mobile phone operators can't afford to ignore security”

End Quote Graeme Cluley Security blogger

Techniques such as text message spoofing and fake wi-fi hotspots that can capture your phone are now available to those bent on mischief with your mobile.

I checked in with Vigilante Bespoke this week and was told that new techniques are popping up all the time, when they examine their customers' mobiles for signs of vulnerability.

On one client's phone they found a piece of software, a legitimate product, used by businesses and parents to monitor everything that happens on a mobile phone - from voicemail, to e-mails to web use.

But in this case it had been installed without the client's knowledge, possibly when he put it down in a public place for a few minutes.

Other threats to your mobile security - from scanners to tracking devices - involve a lot of technical knowledge and in some cases a great deal of investment of time and money from those bent on invading your security.

But, as we've seen, for some journalists and private detectives backed by organisations with deep pockets, that's feasible if the target is deemed sufficiently valuable.

Clueless users

The security blogger Graham Cluley told me it was shocking how ignorant most of us were about the threat to our phones.

"As devices become more complex and we store more of our lives on our cellphone it will become increasingly important to properly protect them," he says.

The singer says that police want to talk to him as part of the hacking investigation Operation Weeting

"The mobile phone operators can't afford to ignore security, and should build in defences and guide users about how best to protect themselves."

And even if your phone itself is perfectly secure, what about your computer?

On Twitter yesterday George Michael made a series of allegations about the invasion of his privacy by journalists and the police.

"In recent years it's gone way further than phone hacking," he said.

Others who have been the target of newspaper investigations are suggesting that they were sent Trojans - e-mail attachments that allow someone to gain access to your computer.

We still need to see more evidence on that , but a Panorama investigation earlier this year found that this technique had been used in at least one case.

So the question to ask is not so much is my phone safe, but is all of my personal data, wherever it is stored, secure from the hacker?

Luckily, most of us lead lives so mundane that we are unlikely to find ourselves targeted by the tabloids.

That does not mean we can relax - our data may not be valuable to journalists, but for fraudsters it's a potential goldmine.

Phone-hacking scandal

DISCLAIMER
This material was not prepared by IFDZ but has been published on this blog as community service.
Lyndon T. Nkomo

Saturday, 9 July 2011

Political Rights and Democracy in Zimbabwe

IFSDZ Paper 9 July, 2011

The fundamental rights provided under the Constitution of Zimbabwe just like similar basic rights provided in other international legal instruments are not only interrelated but interdependent because the fulfilment of one right often depends on the fulfilment of the other. In other words one cannot be fully exercised or enjoyed if another right is denied and such is the indivisibility of human rights. The preamble to the Universal Declaration of rights is revealing to the extent that it makes it clear in this international pledge that the human rights are inherent meaning that human beings are born with them and therefore, they are not given by any authority. The relevant part of the preamble reads ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,’ This conception of the fundamental rights makes human rights naturally primary (in other words, they exist first from the beginning hence the element of inherency and thus inseparable from the benefiting subject, that is the human being). When a Bill of Rights is contained in the Constitution, it merely affirms what human beings are naturally born with that is, it stand as a written expression of affirmation of natural rights that accord all human beings with dignity and personhood regardless of one’s social standing. So fundamental is this conception of basic human rights that its disregard is repugnant to modern human civilisation. What therefore informs this exposé is the value proposition in Article 1 of the Universal Declaration of Human Rights which states that ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ Therefore, if human beings are born with their freedoms then that makes such basic freedoms inherently linked to the concept of humanity.

Linked to this belief and natural entitlements is the concept of participatory democracy which states inter alia that every citizen must be free to participate in the political affairs of his or her country without undue hindrance and to be able to compete for public office against any individual who may have chosen to do likewise. Implied in this belief are natural rights to freely speak, criticize or encourage those in public offices, the ability to engage with others in political debates that promote democratic pluralism and the freedom to associate with or belong to any political party or ideological group of one’s choice. The understanding of the value of democracy is that it is meaningless without the participation of the citizens in the political affairs of a State. Therefore, the exercise of political rights by the citizenry is critical in the definition of democracy and the protection and respect for political rights is so fundamental that any failure on this duty is a negation of democracy itself and the concept of basic human rights.

The current Zimbabwean Constitution provides for the protection of freedom of Expression and freedom of Assembly and Association guaranteed in Sections 20 and 21 respectively. These basic rights are critical in enabling the citizens to exercise and enjoy political rights guaranteed in section 23A of the Constitution. Regrettably, there exists in the Zimbabwean legislative spectrum, some laws that undermine the interrelated and indivisible relationship between sections 20, 21 and 23A of the Constitution to the extend that the political rights granted in section 23A of the constitution end up being applied for instead of them naturally accruing to the citizens of this country. Perhaps, politicians are either irrational or selfish individuals who are only concerned with their own individual interests and not those of the citizens at large and yet the power and legitimacy to govern is given by the people. The relevant provisions of section 23A read:

‘(1) Subject to the provisions of this Constitution, every Zimbabwean citizen

shall have the right to;

(a) free, fair and regular elections for any legislative body, including a local

authority, established under this Constitution or any Act of Parliament;

(b) free, fair and regular elections to the office of President and to any other

elective office;

Constitution or an Act of Parliament.

(2) Subject to this Constitution, every adult Zimbabwean citizen shall have the

Right;

(a) to vote in referendums and elections for any legislative body established

under this Constitution, and to do so in secret; and

(b) to stand for public office and, if elected, to hold office. ‘

What lies at the core of political rights under our constitution are two profound values and freedoms. Firstly, these provisions accord to every citizen the right to vote in regular elections and referendums that may take place within the country and to do so freely and fairly. Secondly, they further accord to every citizen the right to stand for public office and if elected, to hold office. Inability by citizenry to enjoy and exercise any of these core constitutional values fundamentally undermines what should make us an organised and progressive people that is, the freedom to respect each other’s personal choices within the context of our constitution. To put is crudely, any constraint that any Zimbabwean administration may impose on the exercise of section 23A rights is an affront to the very essence and ideals of our liberation struggle. At the centre of the liberation struggle was the fight for the restoration of our dignity and power to self govern that our colonial oppressors had denied our ancestors. Our forerunners could neither vote nor stand for public office and such was the evil of the colonial past and yet as aptly put by Sachs J in August v Electoral Commission ‘the vote of each and every citizen is a badge of dignity and personhood’[1]. Voting is an end which certifies the citizenry with dignity and personhood, however, what is equally important is the process that yields this profound end.

Without free speech and assembly, political rights are meaningless. Within, the context of the theoretical framework of human rights that identifies them as inherent, their nature of is such that there must never be a time when they are asked for even in terms of any legislation because human beings are born with their basic rights. Regrettably,

Zimbabwe

continues to retain the very legal instruments that were defeated on the 18^th of April 1980 when the Union jack was pulled down at Rufaro Stadium. The uplifting of our beautiful flag when the Union Jack was coming down symbolises the legacy of freedom, dignity and personhood that the contemporary generation as well as the future ones got from our Liberators. It is invaluable symbolism that should not only bind us as one people but that also commands and obliges us to respect each other as human beings no matter how different our political views may be. It is symbolism that should make every Zimbabwean jealously guard the spirit and the values that united those who fought and shed their blood for this country. At the centre of their unifying spirit was a ‘natural consensus and acknowledgement’ that they were ‘one people’ united against one common enemy regardless of their different tribes, religious beliefs and languages. This is what cemented their resolve and gave them their badge of unity in the fight against the colonial powers. ZANLA and ZIPRA forces certainly differed in political ideologies and leadership but that did not detract these nationalist forces from fighting the common enemy that is the Ian Douglas Smith’s oppressive regime. Their common task was to eliminate the oppressor for the common good of

Zimbabwe

. Differences in political views or ideologies have always existed and that is what makes societies develop and prosper in pluralism and the natural duty to respect each other must therefore act as a beacon to remind us that even though we differ in political views we remain one people who must freely express themselves, associate and assemble in pursuance of the common good of this country. Furthermore, that in our free political debates and engagement, the citizenry will eventually make the right judgment by voting into public office a political party or parties and individuals who are going to best advance the common interests of the people of Zimbabwe. In other words, when free speech is allowed to take place, it will unite the people to chase away the bad, thus with time the good will eventually overcome the bad. Such is the proven rationale for free speech. Free political participation is therefore an indispensable condition for a people to achieve self-fulfilment which embodies the dreams of a nation.

The greatest risk that we now face as a nation is that our ‘dignity and personhood’ that should be personified in free political participation is ‘under siege’ from some elements within our populace that are revolting against what the Zimbabwean Flag represents. Nobody needs to be reminded that the political freedom that we now have was bought by the blood and sacrifices of the courageous sons and daughters of this country and as such, our political freedom must never be requested or begged for from anyone ever again. It belongs to every citizen and every citizen is born with them. Our political freedom is now an inherent legacy that was bestowed on the current and future generations of this country and no one person has the authority or qualification to give licences, permissions or authority to any citizen to exercise their political rights as individuals or groups. We are born with such rights and it is, therefore, an unforgivable misnomer for any black Zimbabwean to purport to grant permission to any person before they can exercise their rights. It is inconceivable that any rational administration would require citizens to apply for permission to exercise basic rights that they were born with. This is not to say that the natural rights we have are absolute because as individuals or group exercise their political rights they are also naturally bound to respect other citizens’ rights too. The contention here is that any law that requires any political party or individual to seek permission to exercise their political rights is unconstitutional and is an affront to the inherent entitlement that human beings have to basic fundamental rights. The duty of the state is therefore ensure that those that will be exercising their fundamental rights do so freely and the State must only intervene to maintain order in the unfortunate event of disorder arising. The citizens must, therefore, never beg for what belongs to them from birth.

In this respect, therefore, to the extent that the Public Order and Security Act requires political parties to apply for permission from a police officer to assemble for political purposes is reminiscent of our oppressive past and surely stands against what the our badge of freedom, the Zimbabwean Flag represents. The detention centres at Hwahwa and Gonakudzingwa were evil shrines that epitomised the cruel disenfranchisement that our people suffered at the hands of imperialist forces. The constraints and restraints imposed on our people by the oppressive white minority government, in power then, from freely associating, assembling and speaking their political views symbolised revoltingly disgust political misconduct which was anathema to human civilisation. The purchase price paid for our political freedom was sacrificially exorbitant and was paid through the lives and blood of the sons and daughters of Zimbabwe and therefore, no one must ever deny any citizen of this country the freedom to exercise their political rights, that is to freely engage others in political discourse, join or belong to a political party of one’s choice, freely campaign for public office and to compete for election into any public office against anyone because this is what the Zimbabwean flag, which is our badge of freedom, dignity and personhood, stands for. POSA is therefore a curse on the lives and blood of those that sacrificed their lives for our liberty because it reincarnates the Law and Order Maintenance Act that was used by our oppressors to torment and frustrate our liberators. Political violence and intimidation are cancerous to the bones of our political struggle as a nation. Our beautiful flag must cover us as one people who accord each other natural respect even in the beauty of our diverse political opinions and the exercise of basic political rights must never be begged for at Police Stations or from anyone or anywhere else because the Bill of Rights is our natural legacy that we are all inherently entitled to enjoy from birth. It is that which gives us our individual dignity and personhood.

Lyndon T. Nkomo

Institute of Free Speech and Democracy in Zimbabwe

http://ifsdz.blogspot.com

http://twitter.com/TheMediaProf

[1] August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) at Para 17.

POLITICAL RIGHTS AND DEMOCRACY IN ZIMBABWE

IFSDZ Paper 9 July, 2011

Political Rights and Democracy

‘(1) Subject to the provisions of this Constitution, every Zimbabwean citizen

shall have the right to;

(a) free, fair and regular elections for any legislative body, including a local

authority, established under this Constitution or any Act of Parliament;

(b) free, fair and regular elections to the office of President and to any other

elective office;

Constitution or an Act of Parliament.

(2) Subject to this Constitution, every adult Zimbabwean citizen shall have the

Right;

(a) to vote in referendums and elections for any legislative body established

under this Constitution, and to do so in secret; and

(b) to stand for public office and, if elected, to hold office. ‘

Zimbabwe

Lyndon T. Nkomo

Institute of Free Speech and Democracy in Zimbabwe

http://ifsdz.blogspot.com

http://twitter.com/TheMediaProf

[1] August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) at Para 17.

Tuesday, 28 June 2011

Institute of Free Speech & Democracy in Zimbabwe: Minister Chombo’s Application for Prior Restraint ...

Institute of Free Speech & Democracy in Zimbabwe: Minister Chombo’s Application for Prior Restraint ...: "IFSDZ PAPER The application by Minister I. Chombo to bar the media from reporting the proceedings pertaining to his divorce trial raises ver..."

Minister Chombo’s Application for Prior Restraint vs The Open Justice System: An Academic View.

IFSDZ PAPER

The application by Minister I. Chombo to bar the media from reporting the proceedings pertaining to his divorce trial raises very interesting legal issues pertaining to the concept of open justice system, public interest and freedom of expression which includes both the right to impart and to receive information and how these concepts can be balanced with the right to privacy that Minister Chombo is claiming in his application.

The reason why there was so much outcry over the possibilities of secret military trials at the Guantanamo Bay is that the very core of criminal justice system which demands that criminal trials must be held in public for the whole world to see, learn, opine and criticise where necessary was under threat. These same principles apply to civil matters as well, especially where it involves a well known and important person in our society such as Minister I. Chombo. It is important to remind Minister I. Chombo that over the years he has survived in politics because of the public support and the faith that his constituency has always had in him. He has thus succeeded in politics on the basis of public support and it is that very same public that has an interest in these legal proceedings and as such puts this matter and even some of his private affairs within the domain of public interest. Therefore, it is not only a matter that is interesting to the public but one that the public has an interest in because of the public status of Minister I. Chombo in this country.

The principles of open justice and the public interest provide important guidance for the courts when attempting to balance the right to privacy with the right to freedom of expression. What is critical in this process deeply rooted in our judicial system is that it must ensure that Justice is not be done in a secluded corner or ‘in a covert manner’ but in the open for the public to see. Thus, in the words of the Chief Justice of the New South Wales, the honourable JJ Spigelman ‘The principle that justice must be seen to be done –which I will refer as the principle of open justice – is one of the most pervasive axioms of the administration of justice in our legal system.’ As noted above, it is important to reiterate that if judicial proceedings are conducted in secrecy it naturally brews public suspicion, whether negative or positive coupled by great anxiety which may be followed up by public ventilation of their disgust to secret trials or as a demonstration of their abhorrence of secret trials and the offences committed. Justice Burger aptly summed up this thought in the matter of Richmond Newspapers, Inc v Virginia in the following manner, “People in open societies do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

The concept of the open justice system has for centuries given public confidence in our judicial system and this has protected the integrity of our courts in the eyes of public scrutiny that is why even the traditional Chief’s Court is convened in public. This principle protects not only the courts by ensuring that the ‘…judge whilst judging keeps himself or herself under trial’ but Minister I. Chombo as well being a very powerful politician and influential member of our society. The concept of a fair trial is both objective and subjective. Objective from the perspective of the court itself, in that it will not pass judgments that have no legal reasoning based on the law and facts and subjective from the public perspective because of the access they have to the courts they are able either individually or as groups to judge for themselves how our courts handle and judge on legal disputes.

Section 18 (10) of the Constitution of the Republic of Zimbabwe provides for open trials even in civil proceedings and the relevant provision reads ‘ Except in the case of a trial such as is referred to in subsection (14) or with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.’ This, however, does not mean that the doors of the Courts may not be closed to the public. The constitution provides for circumstances under which this right may be curtailed and the exceptional circumstances are provided for in section 18 (11) as follows;

(i) where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of persons under the age of twenty-one years or the protection of the private lives of persons concerned in the proceedings.

(i) may by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the State;

The interest of justice referred to in paragraph (i) refers to the concept of a fair trial. Minister Chombo’s fear is that he will be judged in the media and as such he will not have a fair trial. Surely, our judges are well trained professional individuals who have tried even more complex matters than a mere divorce dispute and as such, they will not be easily swayed by public opinion on a matter which should be technically judged on its facts and evidence available before the court. Furthermore, no one has applied for the proceedings to be broadcast live in which event Minister Chombo may say that he will not be free to give evidence in the face of live cameras. That leaves the print media journalists who will sit in the court just like members of the public. Surely, Minister Chombo is not a person who can be intimidated by crowds or the media. He has addressed very large crowds during his successful political career than that expected to attend his trial and he has given countless interviews to journalists. I do not believe that the interest of justice will be under threat at all. This matter does not raise any issues that may affect public morality and in fact, the private life of Minister I. Chombo is a matter of public interest because of his status as a long-serving government Minister and recognised academic and that makes it an even more compelling for this case to be heard in open court. Public figures feed and succeed in their popularity and as such the public has a right to know what they do away from the glare of the public eye. This trial may also reveal how he has been conducting his public duties as a Minister in government and as such gives the public an opportunity to judge for themselves as to whether Minister Chombo is fit to continue representing the people who have been electing him into public office. In my view, this is a matter in which public interest issues far outweigh the Minister’s claim for privacy and there is no compelling ground to indicate that he will not receive a fair trial. The work of the court must be done in the open. If there are persons under the age of twenty one then instead of censoring the media in this case, the court can simply issue an order that the names of such person shall not be disclosed to the media in order to protect their identity and welfare.

This leaves us with the issue of whether Minister Chombo is entitled to the protection of his privacy. Minister Chombo is prima facie entitled to the protection of his privacy under the Constitution of Zimbabwe just like any other citizen of this country. There is no consensus on the definition of privacy but I tend to align with the view that regards privacy as a form of power to control the information that one has about himself or herself. The right to protection of this information is not absolute and the sphere of protection tends to weaken the more the individual concerned interacts with the public and how much information that individual exposes to the public about himself or herself. In other words, one cannot claim privacy over information that is already in the public domain. With regards to privacy protection of politicians and celebrities, a South African court in the matter of Mantombazana Edmie Tshabalala-Msimang and Another v Mondli Makhanya Case No. 18656/07 noted at Paragraph 38 of that judgment that ‘The public has a right to be informed of current news and events concerning the lives of public persons such as politicians and officials’ and further held that the court held that there was an overwhelming public interest for the public to know about the health condition of the Minister Tshabalala Msimang, because she was a public figure and that her life and affairs had become public knowledge notwithstanding that information had been brought to the public by unlawful means. Thus the overriding factor before publication of any private aspects of a public figure or celebrity is the element of public interest and this element must be overwhelming for any private facts to be disclosed. A lot has been said about Minister Chombo’s private life in the public media and one wonders whether there will be anything new from what the public already knows about him and as such there may be very little to protect. The test of whether one is a public figure was given in the Msimang judgment (Supra) that ‘…the test whether a person is a public figure should be: has he by his personality, status, or conduct exposed himself to such a degree of publicity as to justify an intrusion into or a public discourse on certain aspects of public life? However non-actionable intrusion on his private life should be limited to those aspects that are in the public interest or for public benefit so that unjustified prying into personal affairs unrelated to public life may be prevented.’ There is certainly no doubt that Minister Chombo’s public position, status and exposure makes him a public figure and as such very little protection must be given to his private affairs. In any case, if the issues that he is worried about are his assets and how they were acquired such information is available at the Registrar of Deeds and it is public information for the whole world. What the public may not be aware of is how he may have acquired some of his assets and that is certainly a matter that is in the public interest.

This matter must, therefore, be heard in public to uphold the integrity of our courts, respect the right to freedom of expression of the journalists as they pursue their profession and the right of the public to receive not just information but one that concerns a celebrated politician and public figure. The court must refuse to censor its proceedings and allow the matter to be heard in open court for public good and for the media to be present and report on the proceedings of that trial. The duty of the journalists is simply to report accurately and fairly and not to pass judgments on a matter that is still pending before the courts. Prior restraints are a form of censorship which must be refused by our courts. This is a matter in my view where public interest outweighs the privacy of an individual public figure and politician.

Institute of Free Speech and Democracy in Zimbabwe.

28/6/2011.