Mashudu Netsianda, Senior Reporter
WHEN Zimbabwe attained its political independence from the repressive government of Southern Rhodesia on April 18 in 1980, the day marked the end of racial segregation after a protracted war of liberation.
The liberation struggle claimed many precious lives of dedicated men and women who tenaciously fought for the country’s freedom.
Nationalist leaders such as the late former President Robert Mugabe, the late Vice-President Dr Joshua Mqabuko Nkomo, Cdes Josiah Tongogara and Lookout Masuku among others who were at the fore-front of the liberation struggle come to mind.
The list of the country’s liberation war stalwarts would not be complete without mentioning lawyers who worked behind the scenes through offering legal representation to nationalists in their endeavour to free Zimbabwe from social injustices and racial segregation.
The late Cdes Edison Sithole, Herbert Chitepo, Advocate Lot Senda, the late High Court judge Justice Washington Sansole and retired High Court judge Adv Siwanda Kennedy Mbuso Sibanda popularly known as SKM are some of the luminaries who played that role.
In interviews, some of the prominent lawyers who played a crucial role during the liberation struggle, narrated how the country’s judiciary landscape has changed for the better compared to what it was during Rhodesian times.
Advocate Honour Piniel Mkushi, one of the veteran lawyers who represented nationalists during the liberation struggle, said the Rhodesian legal system promoted white supremacy.
“At that time during the Rhodesian era, there was no black attorney in practice, no black judge in the High Court or any black prosecutors at that time because the situation was really badly influenced by the racial attitudes and white supremacy,” he said.
Adv Mkushi said it was a struggle for blacks to practise as lawyers in Rhodesia despite being holders of law degrees.
“I could not get employment as an article clerk in order to join what was known as the bar at the time because the legal profession was kind of a reserve for the minority white community as it was completely sealed profession. A lot of us who were trying to get into the profession found it almost impossible to break until I managed to get articles of flagship with one of the legal firms,” he said.
Adv Mkushi said it was only after he got a job as an article clerk at one of the law firms that it became easier for him to work with other qualified law graduates and be able to give them work and carry out the work of a legal practitioner.
“We are talking about a situation where there was a single article clerk in the whole country until people like Steven Mapfava, Patrick Chinamasa and other black lawyers eventually managed to join. It was a closed profession and it was difficult to make it in the market as we encountered many hurdles and difficult situations because the general attitudes were slanted against black legal practitioners,” he said.
“The nature of the profession was such that entering it at that nascent age meant handling the full criminal cases, the small family, law cases, which were normally done at what was then called the district commissioner’s courts as well as handling a few commercial clients in particular black businessmen,” he said.
Adv Mkushi said when they managed to break into the profession, it became possible to engage the likes of the late Chief Justice Godfrey Chidyausiku, Advocates Sylvester Maruza and George Chinengundu.
Maruza and Chinengundu were the first African graduates from the University of Rhodesia to be admitted to the bar of the Rhodesian High Court.
Maruza was one of the two first Africans to become advocates of the High Court in Rhodesia.
“During that time, we were now entering the stage of the liberation struggle era of the legal profession and during those days it was not easy because there was a lot of highly sensitive matters, involving liberation war fighters who unfortunately were captured and some of them injured. We were handling many cases of distinguished people in the country who were charged with assisting what were called terrorists at the time,” he said.
“These included, chiefs, village heads, war collaborators who were just picked and charged with supplying liberation fighters with food, water, cigarettes, overalls, gumboots and so forth.”
Adv Mkushi said he worked with former High Court judge Adv Sibanda whom he described as one of the few living legendary black lawyers of the Rhodesian era, who played a key role in the liberation struggle.
“Adv SKM Sibanda used to handle quite a number of matters in Matabeleland and we used to brief each other in those matters, which were also highly sensitive politically,” he said.
Adv Mkushi said there is now a completely different picture in the country’s judiciary in the sense that there was now a majority of judges and magistrates who are black.
He said during the Rhodesian era, the laws were crafted in such a way that it was difficult for a black to establish law firms.
“We now have a proliferation of black law firms throughout the country and to some extent we now have an oversupply of lawyers practising throughout Zimbabwe. Independent Zimbabwe has opened up the profession generally to law graduates. In terms of the law, we are also looking at a situation where 40 years ago, we were operating under the repressive laws such as the Law and Order Maintenance Act (LOMA) and a number of other instruments used by the Rhodesian regime to clobber any political sentiments and to suppress any elements of discord within the society,” he said.
Adv Mkushi said independence brought in new laws that are democratic, progressive and representing the interests of the generality of society.
“Those repressive laws are gone and we now have different laws in operation, which are a lot more transparent, more democratic and allowing space for people to air their views and go to court and be defended adequately. In fact, there are many laws which have changed and reflect on human rights issues and these laws are progressive as they represent the interests of the generality of society, personal rights interests and gender issues, which progressed very well since independence,” he said.
Adv Jacob Mudenda, the Speaker of the National Assembly said black lawyers of the time played a crucial role during the struggle for independence.
“We have black lawyers who represented our nationalists during the course of the liberation struggle. They performed beyond expectation and in many instances, they saved nationalists in difficult situations,” he said.
Adv Mudenda said the Rhodesia justice system was segregatory and biased against blacks.
“The judiciary interprets the law that would be in existence and now the legal system prior to our independence was segregatory against the blacks, and obviously the judiciary then interpreted the law according to the trite law which promoted white supremacy,” said Adv Mudenda.
He also paid tribute to Cde Chitepo who became the first black citizen of the then Rhodesia to become a barrister.
Cde Chitepo became the then Rhodesia’s first black lawyer in 1954 after completing his studies in South Africa.
Upon his return to Rhodesia in 1954, he practised as a lawyer and defended African nationalists
such as Cde Deboning Sithole in court.
In 1961, he served as a legal advisor to the late Father Zimbabwe, Dr Nkomo at the Southern Rhodesia Constitutional Conference in London.
In May 1962, Zapu was banned because of militarism and Cde Chitepo was persuaded to go into voluntary exile to escape possible race detention.
Great Zimbabwe University has christened its law school “Herbert Chitepo Law School” after the country’s first black lawyer as part of honouring his legacy, which carries symbolic value.
Cde Chitepo was also a famous legal representative of the late VP Simon Vengesai Muzenda who was arrested by the colonial Rhodesian authorities after reciting Solomon Mutsvairo’s poem, Nehanda Nyakasikana.
Cde Chitepo died in Zambia on March 18, 1975 when a car bomb planted in his garage of his Lusaka home exploded.
The late struggle icon was buried in Zimbabwe on August 11 in 1981.
Retired Bulawayo High Court judge Justice Lawrence Kamocha, who worked as a court interpreter during the Rhodesian era before he became the first crop of black magistrates when Zimbabwe attained its independence, said:
“I was court interpreter during Rhodesia and that time as blacks we were not getting the same treatment as our white counterparts who were interpreters and all magistrates were white. It was only white interpreters who had offices and blacks didn’t have offices to operate from save to sit in court.”
Justice Kamocha said current laws have been changed to suit the current situations unlike in Rhodesia when the laws were discriminatory against blacks.
“There are certain laws, such as LOMA, which have completely been repealed as they were enacted solely to victimise blacks. There were certain laws, which discriminated blacks and, in our time, blacks were not allowed to live in the eastern suburbs,” he said.
Justice Kamocha said after independence, he was one of the first blacks in Bulawayo to buy a house at Richmond suburb, which was previously a preserve for the white community.
“During the Rhodesian era there were bars in the central business district for blacks, but there was a time limit. You couldn’t drink after 5PM and during weekends you could only drink up to 1PM after which you go and drink at what were then known as black townships where we were only allowed to drink for as long as we wanted,” he said.
The popular bars, which were a preserve for the black community in Bulawayo’s black townships (now western suburbs) included Marisha Cocktail bar in Magwegwe, Khwezi Beer Garden in Pelandaba and Happy Valley.
“Those are some of the discriminatory conditions that blacks were subjected to. When I was a court interpreter, we used to have whites but as blacks we were treated differently. Most interpreters were blacks but the principal interpreter in Bulawayo was white.
“That man could speak a bit of Shona and Ndebele. The chief interpreter, the man who was in charge of all interpreters in the country was also white. I was an interpreter at the Bulawayo High Court and there are so many cases, which involved nationalists who were being tried there for violating sections of the LOMA,” he said.
Justice Kamocha said notable nationalists who were tried at the High Court during his time there included the late Cdes Dumiso Dabengwa, Lookout Masuku and Edgar Tekere.
“In my view, the judicial system has tremendously changed. We now have our own people trying their own people and you know if you are being tried by your peers, they will understand you better,” he said.
Justice Kamocha was a court interpreter between 1970 and 1980. He was among the first group of black magistrates at independence, which included the likes of retired Supreme Court judge Justice Misheck Cheda and former Zimbabwe Council of Churches president, Bishop Peter Nemapare.
He rose through the ranks to become chief magistrate before he was later appointed to the High Court bench.
Adv Senda is also one of the first black advocates in Zimbabwean history. He died at the age of 94 in December 2016.
President Mnangagwa, who was then Vice-President, paid tribute to Adv Senda whom he described as a seasoned lawyer who contributed to the country before and after independence.
Adv Senda was also influential in the Lancaster House talks in 1979.
He was also a former Member of Parliament for Bulawayo South and Deputy Minister of Local Government. He worked closely with Cde Chitepo and other nationalists. He witnessed the nascent stages of nationalism, its internal intrigues with the crude and repressive racism of white Rhodesia.
Adv Senda and the Retired Justice Sansole set up a law firm, Sansole and Senda Legal Practitioners in Bulawayo which is still in existence but now run by a new breed of legal minds.
Dr Sithole was the first black in the entire Southern and Central African region to obtain a Doctor of Laws (LLD) degree from the University of South Africa in 1974 at the age of 39. He was the first black person in the then Rhodesia to hold such a qualification and one of the founding fathers of the liberation struggle against white minority rule.
Dr Sithole was abducted together with his secretary Miriam Mhlanga by Rhodesian state security agents on October 15, 1975, and both were never found.
He was eventually declared dead when Zimbabwe gained its independence in 1980. A cenotaph monument was installed at the National Heroes’ Acre in his memory in 1999. Dr Sithole was part of the early crop of African nationalists who spearheaded Zimbabwe’s struggle for [email protected]