Saturday 10 August 2019


"A lie can travel halfway around the world while the truth is still putting on its shoes."

In the last week, there has been a lot of excitement around my professional involvement as an advocate in a legal case which commenced last year. Consistent with the table manners of the Bar and the legal profession, I was extremely hesitant to pen this piece. This is because I am not given to discussing my legal briefs publicly. To do so, especially where the matters involved are not on public record, is unethical.

This said, I am firmly aware that in addition to being a legal practitioner, I have assumed a public political role which must be finely balanced with my professional endeavours - in the courtroom and in the classroom. What guides me in both my professional and political endeavours is a strict adherence to a value system where the rule of law and justice are at the fore and ethical conduct sacrosanct. I entered politics not because I need a pay cheque or a nice car. I believe strongly in the importance of driving social change to ensure that we can have a society where freedom, fairness, justice and opportunity are available to the many, not the few.

Coming to the matter at hand, my political sojourn thus far has been exhilarating. I have no regrets about entering the political fray. Zimbabwe's problems are predominantly political and unless we resolve the problems at that level, we will drown in technical fixes that only tinker on the edges. The root cause of our malaise requires resolution. Added to that, every citizen must participate so we can be the change we wish to see in Zimbabwe. With this role, comes the challenge of having to deal with disinformation and the tendency by the media (traditional and new) and commentators to pursue a salacious narrative as opposed to being true to the facts. My involvement in the NSSA v Metbank case has been one such incident. It is therefore important to set the record straight.

Metbank engaged me last year in 2018 to act in the NSSA v Metbank case. The dispute was an ordinary contractual one. It wasn’t a corruption case. The comparisons that have thus been made about whether Chitepo would defend white settlers in a land dispute against Chief Rekai Tangwena or whether Mandela would not have represented a pro-apartheid functionary simply do not arise. Those comparisons are inapposite to this case.

To date, there has only been one arrest related to the NSSA corruption, namely the arrest of Prisca Mupfumira. I am not her legal representative. It is worth highlighting that the criminal offence of criminal abuse of office cannot be carried out by a corporate but has to be carried out by a natural person, normally one in public office. Additionally, in 2018 when I was engaged to deal with the NSSA v Metbank matter, I wasn’t a member of the MDC. I received a brief to act for a bank in a contractual dispute which is what I did, consistent with the rules of engagement at the Bar. No sensible conflict of interest can be pointed to arising from my engagement. There were no special circumstances precluding me from taking on the case. I am yet to see a legal practitioner who goes beyond the clinical requirements of contract in a legal matter and starts inquiring into the corporate culture of their clients. This is not the case nor should it be as that extends beyond the ordinary role of a legal practitioner - more so when one is an advocate.

To put the question of conflict of interest to bed, I respectfully point out that the matter was set down and argued well before the NSSA Report was made public - something which has been conveniently overlooked. Neither I nor any ordinary member of the public could have prophesied that there was an audit underway or what would emerge from the report. As a matter of law, a conflict of interest cannot arise before any interest exists. This nuance is absent from the analysis and discourse thus far.

When all is considered, it is demonstrably false that I "defended corruption arising from the NSSA report" as has been suggested by certain journalists and in social media. One of the advocates who was contacted by a journalist and who commented on the matter later retracted the earlier suggestion of impropriety he had made against my conduct. He stated in a public post that he had assumed I was acting in the recent corruption case but had later learnt that what was in issue was a purely commercial matter. This is likely to happen where we comment based on assumptions and we do not hear the other side or have a full appreciation of the facts. The journalist did not proceed to correct his earlier position as would have been expected as a matter of journalistic ethics. This is possibly because it was inconvenient to the salacious narrative that 'an MDC lawyer who speaks out against corruption was now representing alleged criminals implicated for corruption.'

Regarding the NSSA v Metbank case I have made reference to, that narrative is simply not true - that is if we are still concerned with being factually correct.

It is worth stating that when an advocate is engaged, he or she does not undress the consultant to evaluate what their religion, internal beliefs or political affiliation is. This is consistent with the ideals of access to justice and the rule of law. It would explain why I represented Sunday Mail journalists who were prosecuted for exercising their journalistic freedom in exposing the cyanide poaching of elephants - notwithstanding extreme vitriol form their sister paper, The Herald attacking my person an involvement in activism when I was part of #ThisFlag. It explains why I have acted for telecommunications companies in some cases and for their regulator in others. I have acted for and against NSSA. I have a feminist outlook but I have represented both husbands and wives in divorce cases, no matter who is at fault and regardless of how egregious the conduct of the respective parties may be. I have acted for employers and employees even though I have a strong interest in labour rights. As a Christian, I am opposed to killing but I have represented women on death row. This approach and the importance of access to justice, fair trial rights and the rule of law would also have informed David Drury and Beatrice Mtetwa in 2017 when they represented war vets who were being prosecuted for the anti-establishment stance they had taken. This was notwithstanding the fact that war vets had been notorious in their involvement in violence during the land reform program and other human rights violations.

Every profession has its own rules which must be adhered to. As advocates, we have the cab rank rule which is premised on the principle that everyone must have access to justice in order for the rule of law to flourish. Associated with this is the notion that a lawyer is not associated with their client’s cause. If this were not the case, alleged criminals would never be represented for fear of backlash and unpopular litigants would never have a fair trial due to the lack of representation. This rule can only be excepted to when there are special circumstances. We have to be sure that they do before we suggest unethical conduct on the part of a practitioner in representing a possibly unpopular litigant.

I say this not because I have to defend myself for"defending corruption". The facts I have shared above show that I did not.

I say it because in the free, progressive Zimbabwe we want to build, Lady Justice must be blind. Due process must always matter. The rule of law must always be upheld, even for unpopular litigants and people we don't like. Politicians must continue to hold the government accountable and they must safeguard public trust. When criticism is due for dishonesty or impropriety, politicians must account for such dishonesty and their actions. Criticism for double standards must only be made when the facts of the matter are known and not based on salacious narratives or half-truths.

"Whoever fights monsters should see to it that in the process he does not become a monster. And if you gaze long enough into an abyss, the abyss will gaze back into you."

God bless Zimbabwe. Fadzayi Mahere via Facebook


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