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Procedural Liberties Versus Personal Restraints: Rhodesia Where Colonials Never Left

19 June 2010

By Reason Wafawarova

THERE is this spangle about the law and the constitution preached by tonguesters currently engaging themselves with Zimbabwe’s process of coming up with a new constitution, and sometimes people are led to believe that a constitution in itself has the supreme ability to create a society of unbridled happiness.

Constitutions in general, whether it is the United States of America constitution, the Russian constitution, or the one put together by polarised Zimbabweans, are usually beautifully made documents at face value.

However, the sad reality about constitutions is that they ultimately become elitist documents.

This is why the political system of the United States is determined by the will and desire of a few powerful corporations, and it is for the same reason that being anti-Capitalist has become synonymous with being un-American, or anti-West.

Constitutions generally guarantee procedural liberties but they do not guarantee substantial individual liberties. This means that a constitution guarantees that certain measures will be followed that people will go to court; that people will be heard before a jury and that natural justice will prevail.

There is no constitution that guarantees freedom from hunger, that guarantees housing for everyone, health care for all, land for all, education for all, clean water for all and so forth.

Is Zimbabwe making a constitution that guarantees a non-polluted Earth for example?

Or are we coming up with a constitution that guarantees equality and equal distribution of wealth and resources?

Are these not the kind of things ordinary people would want to ratify?

Rather, we want to consult our people on procedural rights and rules.

We want them to ratify abstract freedoms and liberties and to ratify how elites are going to exercise privileged political power over them.

There is no address to the aspect of personal restraints on the attainment of the said procedural liberties and freedoms.

Procedure is not the same thing as what actually happens on the ground.

Procedure discriminates on the basis of who has got money to afford paying good lawyers, on the basis of who belongs to the right or wrong ethnic group, and on who belongs to the right or wrong class.

Going through procedure is therefore not a guarantee for justice. In many countries the justice and legal establishments become the very sources of injustice and illegality.

This explains why there is a black majority in the US prison system and a black minority outside.

It explains why an Aboriginal population that only makes up two percent of Australia’s population suddenly makes up the majority of Australia’s prison population.

It explains why those opposed to ruling political powers across the world stand the best chance of joining the prison population.

Often the law and order written in a constitution becomes a double standard, and that is the contradiction that people across the world face today.

The freedom of the Press for example; is exclusively owned by those who own the Press, and it does not belong to the Press itself, or to the people the Press is supposed to serve.

National constitutions are barely neutral instruments, and scholars like Amos N. Wilson and Noam Chomsky have argued that the law belongs to those who write it, and to those who use it to control the resources of a society.

We all know that business crime is more damaging than all working-class and lower-class crime combined. But we are made to see business crime not as crime in itself, but as mere violation of codes, as failure to follow procedure, even though its repercussions may be dire on the majority of the people.

Who was arrested and jailed when Nestle killed hundreds of thousands of African infants through contaminated infant feeds?

Who has been arrested for the Gulf of Mexico BP oil spill?

Who was arrested when Shell contaminated the environment of the Niger Delta in Nigeria? Was it not one of the victims, Ken Saro Wiwa, who was arrested and executed instead?

Crimes like robbery, burglary, auto theft; larceny and con account for about 15 to 20 percent of crime against property globally.

Embezzlement, fraud, forgery, corruption and commercial crime account for about 80 percent of crimes against property, and of this, about 78 percent is publicly owned property.

The first group of offenders will always make the majority in prisons across the world while the later group are only jailed in very exceptional cases that often make media headlines.

It is difficult for ordinary people to see a business executive as a criminal.

The concept of a criminal has an image attached to it.

In Western societies, that image is often non-European, non-middle class and non-upper class.

In Africa, the image is often non-intellectual, non-upper class and it also excludes political elites and their surrogates.

So an elite can steal millions of dollars and will get away with being forced to resign or paying a fine; while our ordinary youths from the lower class suburbs who may steal pants and shirts are sent to jail, beaten, executed or just get brutalised by the police.

These are the contradictions that any constitution worth the praise must address.

These are contradictions that breed disrespect for the law, and for those who enforce the law.

This is not a problem isolated to a few so-called pariah states, or lawless states.

It happens in the United States, in Australia, in Nigeria, in South Africa, in Zimbabwe, in Argentina, Brazil, and everywhere else.

In fact, the US is quite famous for writing beautiful laws, not so much for international law, but domestic law.

The enforcement of the law is however, notoriously non-equal in fashion in the Unites States.

It is not a matter of the law being written in neutral terms but whether or not that law is enforced non-discriminately.

We come to realise that a policeman is not merely an officer of the law, not merely there to enforce the law, but that the policeman has discretion in enforcing the law, and can determine when and under what circumstances the law will be enforced, and against what people; regardless of how that law may be written.

So the execution of what appears to be non-discriminatory law can in reality be very discriminatory or selective.

You have a situation where a police officer makes a determination of who is to be arrested based on the individual’s race, social class, political background, ethnicity or even religion — depending on the country in question.

It has been proven that laws, even though written in neutral terms, may be used for the purposes of intimidation, harassment, and a means to immobilise individuals.

When charges against individuals may depend on the racial nature, the class, and the politics of the individual’s background; then we have these contradictions that destroy the personalities of our people; that destroy self-confidence, and that destroy our self-concept as a people.

This is the whole problem with the West’s so called anti-terror laws.

It is an effort based on a neurosis and psychosis meant to maintain a political doctrine, and to sustain the political views of a few elites whose sole interest is safeguarding the future of a capitalist system upon which they depend for survival.

The anti-terror laws are used to enforce thought control and people have been arrested for conspiracies for what they may or may not have thought.

This is a system of law enforcement that has expended great time and energy into eavesdropping into people’s personal lives, placing electronic bugs all over the homes of these people, wire tapping these people’s telephones; including telephones of all those who may have called these people for various other reasons.

So you have the US Congress passing a law that says you can now detain suspects of terror-related crimes without bail; or the Australian Parliament passing a law that ASIO can now detain suspected terror activists for at least seven days (renewable) without informing anyone about their whereabouts, not even family and spouses, and regardless of the age of the suspect — and soon after such laws are passed groups of Middle East origin people get arrested in New York and a teenage terror suspect of Middle East origin is arrested in Australia.

This means the new law gets passed and it goes out prepared to destroy a targeted group of people.

In reality, what is in the US and many other countries is a legal system that is not so much concerned with defending the individual as defending the prerogatives of the state and making certain that the state has a monopoly on the weapons, that the citizens are disarmed, not so much to prevent the citizens from killing each other — but as a means to keep the people from killing the government that rules over them.

This is what those in power refer to as "people who take the law into their own hands".

Of course, it is often the police and the elites themselves who take the law into their own hands.

When the police become vigilantes for political elites; for racial privileges, for political domination of certain groups; and for maintaining an establishment that safeguards elitism at the expense of the poor masses; then it is the police itself that is taking the law into its own hands.

The law therefore may often not be the problem. It does provide the procedural liberties, but cannot in itself secure freedom from restraints to personal liberties and to fairness and justice.

The law must not feel threatened by people who seek to change the social system, and the law must not guard a kind of peace that is limited to the interests of a few powerful and rich people.

Thinking in different terms and talking about a different type of arrangement must be viewed as progressive but we have seen people being labelled terrorists, their rights taken away, and their right to bail and access to lawyers denied because the system deems them threats to "national security" or to the "national interest".

We cannot have this guise for defending democracy, when we seek to deny those opposed to our political thinking the democratic right to exist.

This is why the whole idea of trying to exterminate Zanu-PF by criminalising affiliation and support to this organisation is discordant to democratic values.

This is why the sanctions list containing names of Zanu-PF officials and supporters are a mockery to the concept of democracy and must be discarded by Western governments that hold them.

These governments are punishing individuals for concerning themselves with a more equitable means of distributing the wealth of their own nation; for reclaiming the stolen lands of their own country; for questioning the current global system of inequality, and for seeking justice and freedom from the jaws of imperialism.

To do so is viewed as being undemocratic and tyrannic; and for seeking independent nationalism these individuals from Zanu-PF are viewed as fair game by a ruthless imperial force that presents itself as a respecter of the law and human rights.

For Zimbabwe, the law must be for the equality and freedom of all. The law must be for fundamental rights and not only procedural rights. The law must give us land, must give us shelter, must give us clothing, jobs and must equally and fairly distribute the wealth of Zimbabwe among Zimbabweans.

Zimbabwe we are one and together we will overcome. It is homeland or death!

Reason Wafawarova is a political writer and can be contacted on wafawarova@yahoo.co.uk or reason@rwafawarova.com or visit www.rwafawarova.com

 

 

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