This piece was submitted on 15 December 2019 and was not published at the time due to a system error. Read it, leave a comment and share it with your tribe. The Living Zimbabwe Team.

WR 29: THE DEVILS ADVOCATE: WHAT PRICE FOR MORALITY?

Warmest greetings to you all despite the turbulent weather. In a week where we find ourselves in the midst of a fractious election, a particular topic has captured the imagination of a number of us, the ethics of a criminal defense attorney.

Senior MDC member and [crucially] Masvingo Mayor Collen Maboke is representing Zanu PF youth accused of violently locking a Bikita engineer out of his office recently. The same Maboke who was ordered by President Chamisa to step down as the mayor of Masvingo on allegations that he had defied the party position in which he stood against MDC Alliance preferred candidate Godfrey Kurauone during the mayoral elections.

Maboke was also accused of making a pact with Zanu PF councillors in the elections that saw the ruling party’s Wellington Mahwende coming in as a deputy mayor [The two have since buried the hatchet and Chamisa has since given Maboke the green light to take up his office at the Civic Centre].
ZANU-PF has chided MDC politicians who are lawyers for taking up cases of ruling party officials accused of corruption.

Zanu-PF political commissar Victor Matemadanda expressed concern over the development as it comes at a time when the Zimbabwe Anti-Corruption Commission (Zacc) recently arrested Tourism Minister Prisca Mupfumira over the criminal abuse office.

“At the moment, every person who is accused of being corrupt in Zanu-PF is being represented by an MDC lawyer, not your ordinary lawyers, some who are MPs and one wonders what moral ground they have when they talk about corruption.’’

“Are they really fighting corruption, or they just fight for money,” Matemadanda said.

Zimbabweans have also expressed their concern over the representation of corrupt Zanu-PF officials by the opposition.

Several members of the MDC, who are lawyers, are representing under-fire Zanu-PF officials – from the party’s vice national chairperson Job Sikhala, who has been retained as Walter Mzembi’s lead counsel, vice president Welshman Ncube who is representing former VP Phelekezela Mphoko. Mphoko is now suing Ncube for allegedly “neglecting” to transfer more than US$1.4m (R20.7m), part of an amount awarded to Mphoko and his son Siqokoqela after a protracted ownership battle for retailer Choppies Enterprises Ltd., and Tendai Biti who at one point represented former Reserve Bank governor Gideon Gono.

Now, there is controversy about whether lawyers aligned to the MDC – which is a proponent of punishment for alleged Zanu-PF thieves – can mount a defence as to why the same alleged thieves should not go to jail.

CASE FOR THE DEFENCE

Defense lawyers are ethically bound to zealously represent all clients, those whom they think will be justly found guilty as well as those whom they think are factually innocent. A vigorous defence is necessary to protect the innocent and to ensure that judges and citizens—and not the police—have the ultimate power to decide who is guilty of a crime.

A defendant may have done the act in question, but the client may have a valid defence that would exonerate him. For these reasons, among others, defence lawyers often do not ask their clients if they committed the crime. Instead, the lawyer uses the facts to put on the best defence possible and leaves the question of guilt to the judge or jury.

The things you have to realize are (1) A person is innocent until proven guilty (usually beyond a reasonable doubt), (2) the government has unlimited resources at its disposal to prove a case, (3) prosecutors, judges, juries are all human beings, and not infallible and (4) there is a moral obligation to uphold the rights of all, especially the unpopular.

The job of a lawyer is to ensure the government, from the arresting officer to the prosecutor, follow the rules that govern the criminal justice system. These rules are to protect the citizens from overreaching by the police and prosecutors. It’s a check against government power.

“Whether the client is in fact guilty or not” is a common theme in anti-justice system arguments. First, your client is not guilty until proven otherwise. Second, just because someone thinks you’re guilty does not make them guilty, nor does it make them less deserving of their civil rights.

You might think that shady-looking fellow “looks guilty” and fortunately, that’s not a reason to incarcerate someone. People can be mistaken, they can be wrong, they can have it “in” for your client, they can make errors along the way or they can be so blinded by vengeance, that they will want to punish a likely culprit, even if it’s not the correct person. As the accused’s lawyer, you have a moral obligation, both to your client and to the justice system, to ensure that none of that happens.

‘’It is the duty of a lawyer to accept any briefs in the Court in which he professes to practice provided the proper professional fee is offered unless there are special circumstances which justify his refusal.”
” A legal practitioner is obliged to accept the brief from the client….(he) is not only bound to accept the brief, he should put his best in discharging his responsibilities towards the cause. The rationale behind this rule is that legal practitioners should not pick and choose briefs they should handle in court. As officers of the court, they are not at liberty to select the cases to appear in since the primary duty of a legal practitioner appearing in a case in court is to assist the court in arriving at a just decision.

The fact that a case is unpopular or that a client has a very bad criminal record or public record or that the legal practitioner believes that the accused person is guilty, may not justify his refusal to accept the client’s case. (This) …cab rank rule is mostly applied in criminal cases to prevent accused persons from being denied legal representation by lawyers owing to their bad record… “

Below is an argument presented by my lecturer when l asked him this thorny question:

‘’Say you’re an A&E doctor. Into the A&E one night is wheeled a gang member who has just been shot in a gunfight and is bleeding out. The gang member himself is a bad man, and you hear he shot an innocent person in the gunfight himself. You may feel, morally, that he deserves punishment, deserves the gunshot, maybe even deserves to die.

Do you let him die?

Not if you’re an ethical doctor. You do your absolute bloody best to save the no-good’s life, because that’s your job. Judging him is up to the courts and to God. If you let him bleed out, no matter how bad he is, you have failed him, you’ve cheated him, and you’ve cheated yourself. You’ve even cheated the courts, because it was their right, not yours, to decide his punishment.’’

There’s a reason that Maimonides’ Oath says, “May I never see in the patient anything but a fellow creature in pain.”

Lawyers are the same way. We don’t have to like our clients. We can morally disapprove of them. We can even send them to another lawyer if our dislike of them is so intense that we can’t protect their interests adequately. But so long as we represent them, we do our absolute best, because that’s our moral obligation, just like the doctor with the gangster.

Everyone deserves a fair hearing, even people accused of the most heinous crimes, and whether or not they actually committed those crimes. Even if they did commit them. So the ethics of defence lawyers, if you want, are the defence of liberty, of everybody’s right to due process, equal protection, and other technicalities, namely, the fundamental law of the land and the rules for a fair hearing involved in the rules of criminal procedure, evidence and the like.

MORAL ARGUMENT

For those in private litigation practice, no lawyer has to take the case of any client if they do not wish to. If the lawyer doesn’t believe in the client’s case, they shouldn’t take it on — in fact, doing so might run them at risk of violating one or more of our professions Rules of Professional Conduct, since it’s hard to provide someone with the best representation if you honestly believe them to be in the wrong in the matter.

Disclosure of interest

When lawyers are consulted about matters in which they have a personal interest, they must explain that interest to the client. This will let the client decide whether or not they want the lawyer to continue working for them.

If the personal interest is significant and a lawyer’s advice could be affected by it, the solicitor must decline to work for the client and advise them to look for another solicitor.
I would argue that corruption, embezzlement, murder, terrorism and wholesale violation of human rights, is of significant personal interest to all democrats in the MDC and in particular its leadership.

Conflict of interest

Equally, a lawyer cannot work for a client when there is a conflict between the interest of the client and the lawyer. This also applies to other organisations that lawyers work for. Where there is a conflict of interest, lawyers must inform all of the clients involved. Even where there is only a possible conflict of interest, lawyers should be very careful.

There is an obvious and powerful argument that unjust advocacy is morally wrong: as a general rule, one should not knowingly pursue injustice.

The ethical dilemmas facing a lawyer with a guilty client appear frequently in popular drama, where the ethical resolution is often supposed to be for the lawyer to betray his client by intentionally sabotaging the case.

I propose a less extreme means of avoiding contributing to injustice: The lawyer should inform his client up front that he will refuse to advocate for a position that he, the lawyer, finds to be unjust. If the client wishes to retain the lawyer’s services after being informed of this condition, the lawyer then does no wrong by following through on the stated condition and indeed would do wrong by failing to follow through.

Equating the bad acts of the accused with the lawyer representing them is a natural human impulse, especially when the crimes alleged are heinous and the defendants are unpopular.

While we respect that every accused person has the right to legal representation of their choice, I would like us to be aware that people like Walter Mzembi are accused of corruption and it was Deputy Vice Chairperson Sikhala who took up the case.

We once had Gono being a client of Vice President Biti and also of late Professor Ncube taking up Mphoko’s battles with the government.

The masses out there are not so sophisticated that they see the difference between Biti the lawyer and Biti the politician. To them, they are seeing a top opposition leader defending a man accused of corruption, accused of murdering and maiming their relatives.

The same people who you purport to fight as part of a system that has ruined their lives decimated their livelihoods and caused unimaginable suffering.

The principle that one is innocent till proven guilty does not exist in the court of public opinion.”

Have a wonderful weekend.

By Tim Mutsekwa: Political Science and International Relations[University of Greenwich]
Secretary for Party Business & Investments [MDC UK & Ireland]
Twitter: @tsumekwa

This has been a submission by Tim Mutsekwa.
I am a honours graduate in Political Science and International Relations from the University of Greenwich[UK].l write a weekly piece called the WR [ Weekend Read] ,which is found on the MDC Southend Blog, as ”Weekend Read With Tim”, details l have supplied below. lt is also published on all relevant Whatsapp platforms and on the MDC London Facebook pages.l have been published in the online publication Nehanda Radio. link l provide below:
https://nehandaradio.com/2019/11/28/tim-mutsekwa-mnangagwas-repression-a-case-for-a-peoples-revolt/ I am also the Secretary for Party Business and Investments [UK & Ireland] for the MDC.