By Alex Magaisa
The arrest and detention of one of Zimbabwe’s most recognisable names in the legal profession, Advocate Thabani Mpofu, is a most worrying circumstance in the story of a troubled nation. It is indicative of the ignominious depths to which the Mnangagwa regime has sunk.
Adv. Mpofu presented himself to the police on 1st June 2020, following an alleged raid at his Harare residence by 11 armed officers the previous day. He was in the company of his lawyer, renowned human rights defender, Beatrice Mtetwa and a team of lawyers which has rallied around his cause. For most lawyers, the arrest is an attack on the profession.
The charges against Adv. Mpofu and the circumstances of his arrest and detention are bizarre given his functions as an advocate. He is being charged with obstructing the course of justice. The allegations are that he connived to draft and have commissioned an affidavit for a non-existent applicant, one Simbarashe Zuze. The information is that the said Zuze exists. The lawyer who commissioned the affidavit in question has not been arrested. Furthermore, the attorney who instructed Adv. Mpofu in the matter has not been arrested, despite presenting himself to the police upon learning of the advocate’s arrest. The police reportedly say they are not interested in them.
Another charge, which is even more bizarre, is that he acted in connivance with another person to apply to the Constitutional Court and that this application had material duplicated from the application first submitted by Simbarashe Zuze. On the face of it, this is odd because it does not disclose an offence and it is hard to believe that a lawyer would be arrested for it.
These offences supposedly took place in early 2019 concerning a challenge against the appointment of the Prosecutor General. This might indicate the prosecution authority’s interest in playing hardball. The current Prosecutor General was not among the first choices of the Judicial Services Commission following public interviews. Adv. Mpofu was counsel to applicants who were challenging the appointment process.
At the time of writing, the state had reportedly added a third charge, concerning the payment of fees for services rendered in a separate matter. The lawyer with whom Adv. Mpofu is alleged to have connived with has also not been arrested.
The arrest has been condemned by lawyers groups, including the Law Society of Zimbabwe, the professional body that regulates the practice of law in the country. They have defended their member whose arrest for offences allegedly committed in the course of discharging his duties is unusual and suspicious. As the LSZ states, a lawyer should not ordinarily be associated with his client’s cause and the detention poses a threat to the independence of lawyers in the performance of their duties.
Other entities that have raised alarm are groups representing lawyers by their religious affiliation such as the Catholic and Adventist lawyers organisations. The Zimbabwe Lawyers for Human Rights, the premier human rights defender has also weighed in with a condemnation of the arrest of Adv. Mpofu. The collective effect of their representations is that the treatment of Adv. Mpofu poses a threat to the independence of lawyers. From across the Limpopo, top South African lawyer, Adv. Dali Mpofu SC has weighed in with an opinion which is highly critical of the Mnangagwa regime. “Mnangagwa has lost all his marbles”, tweeted the South African lawyer.
As noted by the lawyers’ groups, apart from the substantive weaknesses concerning the alleged offences, it is apparent that there is procedural selectiveness by the state. The nature of the alleged offences suggests that he could not have committed them alone. Yet he has been singled out for arrest and detention. The regime has typically used the law as a shield for allies and as a weapon against perceived opponents. The concern is that this is yet another instance of a strategy of selective application of the law.
In any event, even assuming the remote possibility that there is a case for prosecution, the detention of one of Harare’s most high profile lawyers for two consecutive nights is not only over the top but it also smacks of punitive intent. These offences allegedly took place in early 2019, more than a year ago. It’s not as if they have suddenly come to the state’s attention warranting the urgency leading to arrest. Indeed, there is hardly any risk that a man of his station and circumstances would pose a flight risk.
In any event, handing oneself over to the police upon learning of their interest is hardly the act of a man who is likely to flee the claws of justice. There is no serious reason to detain him apart from the state flexing its muscle and humiliating the man. It won’t be a surprise if they deny him bail at the first instance. Even though admission to bail is a constitutional right, denial of bail has been routinely used as punishment without trial especially in politically-motivated cases. It means even if there is an acquittal or if charges are dropped at a later stage, the accused would have effectively served a sentence whilst on remand.
The profile of Adv. Mpofu and his association with the opposition party lead observers to suspect that selective treatment is a case of political targeting by the regime. Already a successful litigator, Adv. Mpofu’s profile rose in August 2018 when he represented the country’s main opposition leader, Adv. Nelson Chamisa when he challenged the presidential election results. Although the Constitutional Court ruled against Chamisa, Adv. Mpofu endeared himself to opposition party supporters with a valiant performance when the odds were heavily stacked against his client.
While his talent means he has built a diverse legal practice, for opposition supporters, Adv. Mpofu has become one of their heroes. In him, they see one of the pillars for their leader and party, the MDC Alliance. Unsurprisingly, they see his arrest and detention as a politically-motivated act. That the law is being applied selectively by targeting him in an alleged offence that involves more than one person only fortifies their suspicions.
This is not the first time that a lawyer has been arrested and detained by the regime during the course of performing their duties. Beatrice Mtetwa, who is representing Adv. Mpofu was herself arrested in 2013 ironically for allegedly obstructing the course of justice. The police arrested and detained her for a week alleging that she had called them “imbwa dzaMugabe” (Mugabe’s dogs).
Mtetwa’s arrest and detention attracted international attention and condemnation. She was acquitted of all charges but the regime had achieved its objective of punishing and harassing her by detaining her for a week and denying her bail. Other human rights defenders have fallen victim to similar harassment by the state as they conducted their work. As in the Mtetwa case, this current case does nothing to enhance the regime’s reputation. If anything, it is counter-productive, a further blot at a time when the country is reeling after the abduction and toruture of MDC Alliance politicians, Joana Mamombe, Netsai Marova and Cecilia Chimbiri.
The decay of democratic institutions is usually slow and subtle. As political scientists, Steven Levitsky and Daniel Ziblatt say in their acclaimed book, How Democracies Die, “The erosion of democracy takes place piecemeal, often in baby steps. Each individual step seems minor – none appears to truly threaten democracy.” There is much that has happened over the past three years since the coup which when viewed individually seems innocuous. Even when it’s negative, the impact is never truly clear until everything is considered cumulatively.
The arrest and detention of Adv. Mpofu is just one of those “baby steps” in the consolidation of authoritarian rule. This is because the impact of the arrest and detention affects the entire profession, the very reason why the Law Society and other lawyers groups have issued statements that are highly critical. The regime is seen as going after the legal profession, one of the key elements that holds power to account. If they are not vigilant to defend the lawyers, citizens will one day wake up to find that there will be very few lawyers willing to stand up for them in human rights and politically senstive cases. It all starts with an arrest and detention like this one.
Veneer of legality
Regime enablers will argue that the law must be allowed to take its course and that there is nothing special about Adv. Mpofu. They will argue that he is not above the law. That is true. No one is above the law. But that is precisely why this is a problematic case because there seems to be a deliberate and purposeful targeting of one person in alleged offences that would naturally involve more people. Available information shows that two of the lawyers who were involved in the cases have presented themselves to the police but the police have said they are not interested in them.
This selective approach to the cases exposes the veneer of legality. As Levitsky and Ziblatt point out, authoritarian regimes like to use the strategy of doing things that have a facade of legality. “Indeed, government moves to subvert democracy frequently enjoy a veneer of legality: They are approved by parliament or ruled constitutional by the supreme court,” they warn. The government will claim that this is all in accordance with the rule of law but this only provides a veneer of legality which is not enough to obscure the dubious approach.
Facade of legitimate public purpose
Apart from the veneer of legality, authoritarian regimes also use the strategy of proclaiming a legitimate and popular public purpose for their actions. The nefarious agenda is hidden behind that legitimate public purpose. One of these legitimate public purposes is that they are waging an anti-corruption fight. This is the legitimate purpose that the state is using in this case which is why the regime is using an anti-corruption unit of the police as the arresting authority. It is meant to pre-empt criticism, as any critics would be accused of double-standards, demanding as they often do that the government should fight corruption but crying foul when an opposition-related figure is under investigation. However, even this veneer of a legitimate public purpose does nothing to obscure the blatantly selective targeting of Adv. Mpofu.
Sidelining the star players
Finally, to understand what’s happening, it useful to draw upon the analogy offered by Levitsky and Ziblatt. They invite the reader to imagine a game of football. “To consolidate power, would-be authoritarians must capture the referees, sideline at least some of the other side’s star players, and re-write the rules of the game to lock in their advantage, in effect tilting the playing field against their opponents”, they write. Sidelining the key players might include breaking their legs, whatever it takes. If this were a football game, it is more than probable that Adv. Mpofu would make Nelson Chamisa’s starting line-up. It is not surprising that the regime is going for a bone-crushing tackles.
The regime is keen to not only break his spirit but also to demoralise and instil fear into other lawyers. In the grand scheme of things the regime sees other lawyers pausing to ponder; if they can do that to someone of Adv. Mpofu’s stature, what will be the fate of others? The impact of this “baby step” in authoritarian consolidation becomes more apparent when one considers the chilling effect it will have on the human rights defenders. Others may choose to self-sensor, avoiding opposition cases for self-preservation. This is why they have to strengthen their resolve.
The regime has already captured most referees that would restrain it, including some former opposition politicians who have become its newfound favourites. This attack on Adv. Mpofu is part of the authoritarian scheme to neutralise one of the last bastions of protecting citizens’ rights – the legal profession. More similar targeting of lawyers and likely, the targeting of Nelson Chamisa, who is in the same professional stable with Adv. Mpofu may not be far off. If it happens, it will be done under the veneer of legality and in pursuit of an apparently legitimate public pupose, such as fighting corruption.