Individual Freedoms & State Security in the African Context: The Case of Zimbabwe

By John Hatchard | Go to book overview

9 Protection
of the Law

It is widely recognised that every person is entitled to the protection of the law. 1 Thus anyone charged with a criminal offence has the right to a fair hearing within a reasonable time by an independent and impartial court established by law. Also included is the presumption of innocence, the right to be informed of the nature of the offence charged and a prohibition on the creation of retrospective offences or punishments. There is also a right to legal representation throughout the criminal process starting at the time of the arrest or detention. These basic rights are particularly liable to abrogation or curtailment by authoritarian governments, and this is especially so during times of emergency.

In Zimbabwe, the constitutional right to protection of the law is fully protected and is not subject to abrogation even during a period of public emergency. Nevertheless, State security considerations jeopardised the exercise of this right and five areas of conflict are now examined.


Legal Representation

Access to legal representation is vital to those deprived of their liberty. Without it, an individual is left unprotected and liable to suffer considerable prejudice and, as noted in an earlier chapter, this is especially so in the case of detainees. The importance of the right is recognised in many international documents. The African Charter provides that:

Every individual shall have the right to have his case heard. This comprises ... (c) the right to defence, including the right to be defended by counsel of his choice.

In Africa, south of the Sahara, virtually every current national constitution contains the right to defence in criminal cases whilst almost half of the Anglophonic African nations specifically refer to the right of a person charged with a criminal offence to representation by a lawyer of his own choice. 2

In Zimbabwe, every accused has a statutory right of access to a lawyer. 3 Even before independence, this was seen as an inherent right available to all accused persons. 4 This is now reinforced by the Constitution which provides that throughout the criminal justice process, an accused is entitled, at his own expense, to obtain and instruct without delay a legal representative of his own choice and to hold communication with him. 5


The Right in Practice

The Air Force 6 case neatly illustrates the approach of the courts towards the protection of

-89-

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