The legal world was stunned this week by the news that Harare magistrate, N Nduna, had ruled that a lawyer appearing in a case before him was ‘disqualified’ from continuing to act in the matter. Whatever the case, this would have caused concern because of the drastic nature of the step. But this is not just any case. The accused person is an award-winning investigative journalist, Hopewell Chin’ono, who had been researching government corruption questions before his arrest. And his lead counsel is internationally-acclaimed human rights lawyer, Beatrice Mtetwa. The state’s determined prosecution of Chin’ono, refusing him bail, not allowing him to consult with his lawyer in private and insisting that he appear in court in leg irons, all indicate that he is being made an example of, to frighten off other critics. The case comes amid growing community opposition to the government in Zimbabwe. Nduna's judgment will inevitably be criticised as reflecting the court’s failure to respect the Rule of Law. And questions will be asked about whether it is the magistrate, rather than the lawyer, who has become so identified with a cause as to lose ‘impartiality and detachment’.
Any reader of this story is sure to head over to Facebook to check an essential element of the case. In the search block you should type in ‘Beatrice Mtetwa and the Rule of Law’. You’ll find that the page is actually called, ‘Lorie Conway’s Page about the film Beatrice Mtetwa and the Rule of Law’.
And there is a note prominently placed on the page, addressed to ‘the Prosecutor in Zimbabwe’. It reads, in part, ‘I am the author of this page and write every word of it from my office in Boston, Massachusetts. I am the producer of the film, Beatrice Mtetwa and the Rule of Law.’
‘… I have written repeatedly that Beatrice Mtetwa does not monitor this page and I list her office phone number in Harare for those who are asking to reach her.’
Similarly, says the writer, Hopewell Chin’ono, a journalist and client of Mtetwa, has nothing to do with the posts. Conway then suggests that perhaps she should go to Harare and testify under oath so that she could be cross-examined by the prosecutor [on the question of Mtetwa’s non-involvement in the FB page]. She also stresses that Mtetwa has no social media presence of her own.
The note is signed, ‘Lorie Conway, filmmaker and journalist’.
And just in case anyone doubts Conway’s views on the situation in Zimbabwe, she adds that strong governments do not ‘persecute by prosecution’. Instead, they allow people ‘free speech and actions to participate in the governing process.’ Then she adds a hashtag: #FreeHopewell.
All of it would no doubt infuriate the prosecuting authorities and the government. But in what other country would there have been consequences for Mtetwa herself?
In present-day Zimbabwe, Conway’s FB page had an immediate and negatative impact on Mtetwa and thus on her client. The prosecution team in the high-profile case involving Chin’ono obviously visited the social media site and then hatched a plan to use it in a way that would hamper Chin’ono’s defence and the work of Mtetwa: An application was made to the magistrate’s court in Harare, asking that Mtetwa should be disqualified from continuing to defend Chin’ono. The basis of the application was that Mtetwa had lost a proper sense of ‘detachment’ in handling the case and so should not be allowed to continue acting in the matter.
The magistrate hearing the case, N Nduna, did not decline the chance offered by the application.
The state had pointed to certain posts on FB that were ‘attributable’ to Mtetwa, and that ‘as a result she must be debarred from appearing before the court as she has become personally involved so as to diminish her objectivity as an officer of the court.’
The posts further portrayed a legal system and a court that was perpetuating the abduction of Chin’ono. ‘The posts rebrand the accused [as] a political prisoner and this court [as complicit]’ in dealing with someone alleged to be a ‘political prisoner’.
‘The world is being invited to outrage.’
According to the magistrate, Mtetwa had written a letter to him that contained the same sentiments as those expressed on FB.
As he moved to a consideration of whether to find that Mtetwa had ‘scandalised the court’, he noted that such an offence was extremely rare and that in England there had been no successful case in more than 60 years.
But, he said, letting himself off that particular hook: ‘It is permissible to take into account that in younger democracies, the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court in such young democracies is greater.’
How would he deal with Mtetwa’s denial that she runs the FB page and her claim that she has ‘nothing to do with scribblings on its wall’ as the magistrate put it? Mtetwa and Conway’s FB page were ‘not strangers to each other’, he said. In a confusing paragraph he said that ‘obviously’ Mtetwa had ‘authorised and approved its coming into existence’ and she ‘cannot be seen assuming that Conway is posting to say now this particular post has nothing to do with her.’
‘Because the posts are offensive to the very function of courts in which lead counsel appears, she was expected to have registered her disapproval of that with the said Lori Cornways. She cannot wash her hands like Pontias Pilate of the Bible.’
The final paragraph is also worth quoting: ‘A lawyer who is professional seized with a case does not conduct [it] with such desperation. This moment you are in court arguing the case, the next you are writing letters in bad taste and smuggling them into the record and the next you are posting on social media that the whole trial process is for political expedience and that … your client is a political prisoner and inviting the whole world to show its outrage.’
UN Basic Principles
On these mixed and strange grounds, Nduna granted the application for Mtetwa’s ‘disqualification as counsel’ in the Chin’ono matter. In addition, the court ordered that the prosecutor general consider prosecuting Mtetwa for contempt of court related to a letter and the FB posts on the Conway page.
Among the strong responses to Nduna’s decision is that of the Bar Human Rights Committee of England & Wales. The committee urged Nduna to revoke the judgment adding that the Zimbabwean authorities should ‘ensure full compliance with their duties under the UN Basic Principles on the Role of Lawyers.’
Nduna’s order unduly interfered with and prevented Mtetwa from carrying out her professional duty as a lawyer, and the ruling seems to form part of a pattern of harassment and intimidation by the Zimbabwean authorities against Mtetwa for simply doing her job.
The committee said the UN Principles placed the Zimbabwean government under a duty to ensure that lawyers could perform their professional functions without intimidation or improper interference nor threat of prosecution.