Constitutional Court saga lawyers

Their Literature teachers must be proud

MY ADVANCED Oxford Learners dictionary says, ‘saga’ means a long story of heroic deeds, events or adventures especially involving several generations of people. It goes further to give the adjective thereof: ‘sagacious’, which means showing wisdom and good judgement.

Were all the lawyers in the just ended Constitutional Court not a glorious pride for Zimbabwe and indeed Africa and the whole world? What a show-off of legal prowess and orderly argument!

I have full evidence of how the just ended Constitutional Court legal marathon was a saga. It was long. It was both an event and legal adventure. Of course it made an indelible historical mark in the annals of the Zimbabwean story, past, present and future. It made unforgettable heroes and heroines, did it not?

I also have full evidence my Lords and Ladies, how the adjective ‘sagacious’ is also an apt description of exactly what happened and what each one of the erudite lawyers was. The saga exhibited great overall wisdom and good judgement...and of course good does not mean good for everyone. No courts are good for everyone involved but that does not mean something is wrong or amiss.

The above soft but straight remarks cannot be easily comprehended objectively by those who followed the ConCourt proceedings with a political eye or through political lens, for politics pushes adrenalin in one emotional direction, the one you want. But the great wisdom and prodigious knowledge of law exhibited by all parties who this or that side or none of the legal contestations, is unquestionable in the eyes of academics that refuse to be emotionally placed here or there but remain calm, objective and thoughtful. Noisy charlatans who are easily overexcited and drunk with either delight or disappointment are many and will always be as short-sighted and squintyeyed about what things are and what they are not. Some cheap and noisy critics do not even realise that this new dispensation means opportunity to hard work, not opportunity from hard work; freedom TO work hard, not FROM hard work and freedom indeed not to expect handouts from Government all the time. But let us go back to Concourt Saga.

The teachers of these colourful lawyers...all of them, this or that side of the war of legality and non-legality which publicly turned into a legally furious battle of wits, must have watched their products with awe and exclaimed, “Wow, did we produce such enviable trouble? Did we produce these typical legal Trojan horses? ”

I, as a Literature teacher and independent consultant with clearly what can be described as a chronic obsession for Literature, also passionately watched the proceedings, with all intellectual oomph in my little head, I must say. The difference though with many who were watching the same could have been of purpose influenced by specialisation. I am a literary analyst and pedagogic critical thinker, not a politician in whatever sense. (You will excuse me for the similarity of my language with the lawyers’ favourite jargon.)

This is why I keep on saying what I witnessed was a high standard of representation from everyone who took part. The world must have seen and acknowledged the finest of lawyers at their business. Indeed from the Plaintiff’s lawyers, to the Defendant’s council, and ultimately to the judges. Everyone...absolutely everyone, exhibited the highest level of legal wisdom and knowledge imaginable. It may not make sense to someone who had direct interest in what was happening, and who did not, but certainly from The Solomonic Chief Justice to Uriri and Kanengoni and the Fulcrum-Pith legend, charismatic and eloquent Thabani Mpofu, who can still doubt the power of Zimbabwean education? It was clinically demonstrated in that court. The last I saw such scintillating legal warfare was the Pistorius- Reeva Steenkamp court block buster on South African television three, four years ago. The other legal thrills would be the old legal entertainment LA Law television moot-court series. Superb legal stuff!

And to imagine all these firebrand legal juggernauts we saw in the ConCourt come from schools, and specifically the whole ‘psychosomatics’ begins in the Literature classroom where critical thinking is nurtured! At every turn of events I followed with skin-deep scholarship how every little detail resembled what we teach in our classroom: identifying the point but not forgetting to supply evidence to persuade the teacher, examiner and marker to concur with you (Law says ‘concur with’-not ‘agree with’).

You can say the set book is a microcosmic-representation of student prostitution and a chilling portrayal of the vulnerability of the girl child to sexual abuse and the grave consequences that result from moral decay... fine! You can also argue the story, the play or set book is a brutal expose of male chauvinism; an exposition of reversal of values, abortion of justice and democracy, the theme of Appearance versus Reality, a clash of Public Self versus Private Self, a satire on the falseness of political theories, futility of religious hatred, the precariousness of blissful romance preying on reason and understanding; whatever statement of judgement or conclusion you are subscribing, but always remember this: Do not end up shrouded in verbal allure or charm(enjoying yourself with rhetoric and colourful words-syntactical and lexical) at the expense of evidence, proof and fact. These must be enjoyed simultaneously like bread and butter or music and a warm shower in a biting winter month. Verbal magnetism must always be accompanied by factual evidence. This is the mark of an intelligent literature student.

You will need this weapon soon in real law practice. Why are you saying what you are saying? Why are you saying a character is cheap and rebellious, is a hedonist, is principled, is noble, is brave, is permissive and promiscuous, is calm and calculating, ambitious, is a shrewd contriver etc? You are not prophesying, are you? So prove your point! Give evidence! You cannot rely on the marker’s common sense. He or she cannot come to your rescue using common sense. It does not work like that. Do not assume he/she knows what you know. Tell him or her. Reveal what the facts and the evidence are. Show the evidence. This is critical in any argument, especially if the onus is on you as indeed it is with every student writing a Literature essay. Like in Literature, indeed as it is in court, it is not the adjudicator’s job to give supportive evidence. It is your task in the examination room to do it and do it clearly and convincingly. Is this not what we teach our little lawyers in our Literature lessons? Critical thinking is not prophecy and accusation. It is reasoning. And whatever you are saying or writing, it is your task and yours alone, to convince the adjudicator, the teacher, the marker, beyond any reasonable doubt that you are correct, even if you may be lying or indeed fabricating a story. Even if you may be saying what the adjudicator knows, does not know or does not want to know!

There is one obvious and remarkable difference with the adjudicator in the just completed saga. He wanted to decide who was wrong or unlawful and who was right. In Literature the adjudicator (the ZimSec trained ‘Chief Justice’) does not for one minute think anyone is wrong or unconstitutional. That is the difference. Once you are a registered candidate, you are constitutionally duly ‘elected’ to sit the exam and give your argument without anyone saying you are unconstitutionally positioned; so long as you can bring evidence, you are correct and within ‘the law’. The marker will award marks on the strength of one’s argument and how able one is to support it. No one is dismally wrong and no one is divinely correct.

You get marks according to your sensitivity to the question asked and how deep you are able to go to sustain your own idea of correct and sensible. If for example all these lawyers were being adjudicated or assessed by a competent Literature teacher, all of them would get distinctions including the honourable bench...each one awarded an ‘A’ and asked to go to the top of the class.

I am sure Zimbabwe now knows the class of our honourable legal practitioners; real firebrand; world class lawyers. It makes us all good Literature teachers know and feel proud that we do our work thoroughly creating tomorrow’s lawyers, some of them ultimately becoming no-nonsense Solomonic judges who stick to facts and refuse to be overshadowed by legal charisma.

As teachers of Literature, not as anything else, I am sure we stand with our heads high that we have created these firebrand advocates and judges from our humble classes from as early as Form 3 and 4, Form 5 and 6 where the legal appetite is whetted in the way the little future lawyers study this great subject (Literature). It nurtures them to be intelligently observant, to reflect, to imagine and to judge wisely and according to the law, not personal whims.

I hope the teachers of these great Zimbabweans were watching. I could see them in my mind smiling intelligently and with satisfaction; I mean those who taught the brave and judicious CJ Malaba, the sticklers to meticulous detail and analysis-Uriri and Kanengoni, the colourful and legally romantic Thabani Mpofu. All of you made Zimbabwe proud.

It is unfortunate that someone had to lose and someone had to win and sadly for some this ConCourt brought far-reaching consequences. For us as Literature teachers who plant this critical-thinking seed into these lawyers from an early age, we thoroughly enjoyed the proceedings and were at every turn feeling proud we make these legal ‘bombs’ in our factories at school.

I called one of these lawyers who passed through my hands and asked, “But why do you call each other learned friends? Who is really learned, your friends in the legal fraternity or us your teachers who initiated you into the joy of Law and critical thinking on the basis of evidence? He replied instantly “hahaha Mr Mtisi!” to which I answered ‘angrily’ in a legal way, “You are a lawyer. Is that an answer?”

Before he could become a respondent, I enquired (not asked), “Why on earth do you call CJ Malaba ‘My Lord’ when you know for sure there is one Lord in heaven? You have suddenly become blasphemous you guys because you are in court?” To which he answered still laughing, “Sir the Law compels us to address every judge like that,” he answered.

“Yes every judge, but he is not Lord for heaven’s sake? Besides, where is the proof, the concrete evidence, that every judge is Lord? The fulcrum or pith of your answer is quite precarious. You have lost this argument, with costs. Mi-Lord I end my case.” And indeed thus ended my case with my former student. I love Literature that prepares firebrand critical thinkers! I love it to the hit, I dare say. Well done all teachers who had a hand in birthing these great minds! Well done teachers of Literature who every day labour to produce great minds as we saw in the just ended historic Constitutional Court.

And finally, lest we forget or we do not know! All lawyers are hired to do their job and they work on the evidence and facts supplied by those who hire them. They bring no magic into the court rooms.

The only talisman in legal matters is to go to the war fully prepared and armed. Empty or spent cartridges do not inflict any injuries. Lawyers need adequate and effective arsenal to win legal battles. Most importantly, remember, lawyers may be on different sides of the legal battle but they are always friends, learned friends, they call themselves. When they call each other that, they mean it. So while we may think they are bitter with each other, they are not. While we may waste our time begrudging each other and foolishly feeling bitter about and against each other and thinking courts have created successful enemies-they have not! They do not. The deed was done.

The game is over. All civilised and busy Zimbabweans have accepted what happened. A new political dispensation has been affirmed and confirmed legally and finally. An authentic President was legally declared and constitutionally inaugurated. What he needs is little noise around him and support to allow him to turn around this country into a jewel of Africa that it deserves to be. What progressive minds do now is to allow life to go on and support the new Government. After all it is all we have, and nothing else.

Foolish students waste time hating those who teach them, those who set examinations, organise them and adjudicate them.

Wise ones sit down to learn from their failure and mistakes and read hard again for the next examinations.