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
EsinIslam.Com Add Comments |