The
first respondent is the ruling party in Zimbabwe. The second
respondent is a minister of Government in charge of primary and
secondary education. He is a member of the first respondent. The
matter before me was an urgent chamber application by the applicants
for an interdict against the respondents.
The
first applicant is a trade union ...
The
first respondent is the ruling party in Zimbabwe. The second
respondent is a minister of Government in charge of primary and
secondary education. He is a member of the first respondent. The
matter before me was an urgent chamber application by the applicants
for an interdict against the respondents.
The
first applicant is a trade union of primary and secondary school
teachers in rural Zimbabwe. It is duly registered. It has corporate
personality, capable of suing and being sued in its own name. The
second applicant is a teacher. He is the current president of the
first applicant. The interdict was sought to restrain the respondents
from certain activities that the applicants considered harmful to
themselves and the school children under their care. These activities
included:
(i)
Coercing school children to attend and participate in political
rallies or other activities of the first respondent.
(ii)
Causing the closure of schools to accommodate the first respondent's
political activities.
(iii)
Compelling teachers to attend the first respondent's political
rallies.
(iv)
Compelling teachers to wear the first respondent's party regalia
and to prepare performances for school children to deliver at its
rallies.
(v)
Compelling teachers to make contributions in cash or kind towards the
first respondent's rallies.
(vi)
Commandeering school premises, school buses, furniture, or other
property for the first respondent's political rallies.
The
chief architect of that abuse was said to be the first respondent,
the second respondent being a willing agent.
The
core of the applicants' evidence was a report by the Zimbabwe Human
Rights Commission, a body established in terms of section 242 of the
Constitution with wide-ranging functions that include the promotion
of awareness; respect; protection; attainment and observance of human
rights at all levels of society, and the protection of the public
against the abuse of power and any maladministration by the State;
public institutions and their officers. The report was compiled at
the instance of the applicants. They had complained to that body
about the desecration of the rights of school children and school
teachers as aforesaid. The report covered the period from July 2017.
It is not clear when it was actually published. Its major findings
were the following infringements:
(i)
A breach of the children's right to education as enshrined in
section 75 and section 81[1][e]
of the Constitution. It was said that children periodically missed
school after being forced to attend the first respondent's rallies
to provide entertainment through, among other things, participating
in provocative dances. Children were said to be exposed to hate
speeches and inflammatory language.
(ii)
A breach of the right to freedom of assembly and association as
enshrined in section 58 of the Constitution and Article 8 of the
African Charter on the Rights and Welfare of the Child. It was said
the children's attendance at the first respondent's rallies was
secured without their parents' consent or knowledge; that they were
being forced to wear the first respondent's regalia, and that not
only were their teachers forced to attend those rallies as well but
also that they had to compose praise poems for recital by the
children and to make financial contributions towards the costs of
holding such rallies.
(iii)
School vehicles, like buses and lorries, being commandeered to ferry
communities to the first respondent's rallies; school equipment,
utensils and furniture such as tables, chairs and sofas being
requisitioned for those rallies.
That
was the skeleton of the applicants' case. The flesh comprised
sample findings. Below are some of them:
(i)
Teachers' forced contributions to the costs of the rallies ranged
from $1 to $10. Failure invited threats of harm or expulsion from
certain districts.
(ii)
At one rally held in Gweru in the Midlands Province, school children
from Grades 4 to 7 walked 11 [eleven] kilometres to the venue and 11
kilometres back. Teachers took turns to walk and catch rides: one
batch walking with the children to the venue whilst the other batch
using public transport, at their own cost, and swapping roles for the
return trip.
(iii)
On 9 September 2017, there was a Youth Interface Rally for the first
respondent that was held in Bindura, Mashonaland Central Province. A
directive was issued by a District Administrator in the then Ministry
of Rural Development, Promotion and Preservation of National Culture
and Heritage which was addressed to primary and secondary schools in
Guruve. It read:
“APPEAL
FOR CONTRIBUTIONS TOWARDS MASH CENTRAL PRESIDENTIAL YOUTH INTERFACE
The
office of the District Administrator, together with ZANU (PF) Youth
League, is appealing for your contributions towards the Presidential
Youth Interface rally on a date to be announced soon.
You
are aware that His Excellency, the President, Cde R G Mugabe, is on a
nationwide tour meeting the youths and from Gweru, on 1 September,
his next destination will be Bindura here in Mashonaland Central. We
are requesting for your contributions to buy food and ferry 12,000
party supporters to Bindura.
The
committee agreed that every civil servant should contribute $1=
towards this memorable event. The deadline for the contributions is 6
September 2017.
For
any further information contact Mr Machobeni on 0782003702 or the
undersigned on 0773022151.”
(iv)
During elections, teachers are treated as illiterate voters in need
of assistance in the casting of the ballot.
(v)
At All Souls Mission School in Mutoko, in Mashonaland Central
Province, the school head forced teachers to create a political party
cell and declare the names of such of their children and relatives as
had reached the voting age.
(vi)
On 1 June 2018, the first respondent held a rally at Chegutu in
Mashonaland West Province. It was a Friday, a school day. Many
schools in the surrounding areas were closed in order to facilitate
the attendance of school children. A journalist present at the rally
took pictures of children clad in the first respondent's party
regalia carrying placards with political messages, and of a school
bus that had been used to ferry supporters. He filed a supporting
affidavit.
(vii)
Another political rally was held by the first respondent on 9 June
2018 at a primary school called Chinzanga in Mashonaland East
Province.
(viii)
Yet another rally was held by the first respondent on Friday, 15 June
2018 in Masvingo. All provincial and district sporting activities
scheduled for that day were postponed indefinitely. A screenshot of
the “WhatsApp” message dispatched by the Provincial Education
Director for the province, to members of the first applicant, two
days before the rally, read:
“Afternoon
colleagues. Be advised that all provincial and district competitions
set for Friday 15/06/18 have been postponed to a date tba since His
Excellence the President of Zimbabwe will be visiting the province.
Please note that your buses may be requested for the function.
Thanks.”
The
applicants averred that they had a reasonable apprehension these
violations were set to continue, especially as the country was
heading for the general elections on 30 July 2018. The violations
were said to be continuing despite the new dispensation obtaining in
Zimbabwe.
In
this regard, I take judicial notice of the seismic changes in the top
leadership of the first respondent, and of Government, in November
2017, when the then first secretary of the first respondent and
sitting President of the Republic, Mr Robert Gabriel Mugabe, resigned
after an un-interrupted thirty seven years in power since the
country's independence from Britain in 1980. He was replaced by one
of the Vice-Presidents. Mr Emmerson Dambudzo Mnangagwa.
The
applicants further averred that the violations were continuing
despite the recommendations by the Zimbabwe Human Rights Commission
in its report. The key recommendation was that political parties in
Zimbabwe should adopt a code of conduct the provisions of which
should include the following:
(i)
The prevention of misuse and manipulation of school children at
political rallies and ensuring that their attendance is free, safe
and well protected.
(ii)
Keeping school premises free of political meetings and other
activities and desisting from the practice of coercing school
children to participate in any political gatherings and
demonstrations.
(iii)
Desisting from abusing school property, such as buses and furniture,
in furtherance of private political interests unconnected to the
schools, the teachers, the children and their parents.
The
applicants argued that their application was a classic case for an
interdict. They said it met all the requirements for that sort of
remedy. These requirements are:
(i)
A prima
facie
right, even if it be open to some doubt.
(ii)
A well-grounded apprehension of irreparable harm if the relief is not
granted.
(iii)
That the balance of convenience favours the granting of an interim
interdict.
(iv)
That there is no other satisfactory remedy.
See
Setlogelo
v Setlogelo
1914
AD 221….,.
The
second respondent did not oppose the application. He promised to
abide by the decision of the court. The first respondent did oppose.
Its grounds were multiple. It first raised technical preliminary
objections. It then answered the applicants' case on the merits….,.
In
summary, the mainstay of the first respondent's argument on the
merits was:
(i)
The events complained of, even if true, were 'a thing of the past'.
The first respondent, and Zimbabwe, are now in a new dispensation
under President Mnangagwa. The violations were probably rife under
the then President Mugabe. Not anymore.
(ii)
The report by the Zimbabwe Human Rights Commission was one-sided. It
contained none of the first respondent's views. As such it lacked
balance.
(iii)
The applicants had conflated the functions of the first respondent
with those of the second respondent. It is not the policy of the
first respondent to require children and teachers to attend its
rallies. The first respondent has a large support base and it does
not need school children and teachers to bolster numbers. But, for
the second respondent, the new schools curricula require the
preservation of traditional culture. This is done through the
compulsory teaching of visual performing arts and mass displays,
components of which involve children showcasing traditional dances
like “jerusarema”,
“mbende”,
“muchongoyo”,
and the like, at mass gatherings such as rallies.
(iv)
Some parents sometimes take their children to the first respondent's
rallies out of necessity if there is no one at home to leave them
with.
(v)
The event at Chinzanga School in Mashonaland East Province, on 9 July
2018, was not a rally but an occasion for the President to donate
computers and therefore one which the school children had to attend.
(vi)
There was no evidence placed before the court, by the applicants, to
show that the first respondent had not paid for the buses and lorries
used in ferrying communities to its political gatherings or that the
equipment; furniture and other property used at such gatherings had
not been donated willingly by the owners or the school/parents
associations.
In
his submissions, counsel for the first respondent stressed that the
first respondent was not at all involved in the perverse conduct
complained of, that if it was the second respondent doing it, then it
was unfair to include the first respondent in the interdict.
Sloppy
drafting aside, the application was well supported by very strong
evidence of abuse by the respondents in the form of sworn statements
by eye witnesses; pictures; media reports; documents; correspondence,
and the like. Undoubtedly, the first respondent's defence was wool
over eyes.
I
was satisfied that the respondents were guilty of the blatant abuse
of the rights and freedoms of the school children; their schools and
their teachers as set out in the application. Among others, the
respondents' conduct infringed on a number of the rights of
children as set out in the Constitution, such as the following:
(i)
The right to education [section 75 and section 81(1)(f)].
(ii)
The right not to be compelled to take part in any political activity
[section 81(1)(h)].
(iii)
The right not to perform work or provide services that are
inappropriate for the children's ages [section 19(3)(b)(i)].
(iv)
The right not to perform work or provide services that place at risk
the children's well-being, education, physical or mental health or
spiritual, moral or social development [section 19(3)(b)(ii)].
The
respondents' conduct infringed on the rights of the applicants'
members as set out in the Constitution, such as the following:
(i)
The right to freedom of assembly and association, and the right not
to assemble or associate with others [section 58(1)].
(ii)
The right not to be compelled to belong to an association or to
attend a meeting or gathering [section 58(1)].
(iii)
[In relation to school premises and assets under their occupation,
custody or control] the right to hold, occupy and use property, and
the right not to be compulsorily deprived of same [section 71(2) and
(3)].
Evidence
placed before me was that the Chinzanga Primary School event was a
political rally by the first respondent at which school children had
been forced to attend. The evidence also showed that it was rampant
practice by the first respondent, either directly, or through the
agency of officials of the second respondent's ministry or other
Government agencies, to commandeer school premises, buses and other
vehicles, and to requisition other school assets such as desks,
chairs and sofas for use at its rallies.
The
argument that the first respondent might have paid for them was
puerile. The first respondent is free to hire these from private hire
companies and leave school assets alone.
The
High Court is the upper guardian of all minor children in Zimbabwe.
No one tramples on their rights and freedoms and expects the court to
look the other way. It will not. A report that grade 4 to 7 children
walked 11 kilometres to and 11 kilometres from a rally should invoke
outrage in any right thinking member of society. Section 81[2] of the
Constitution says a child's best interests are paramount in every
matter concerning the child.
Some
events at political rallies are plainly inimical to the safety,
social development, and moral well-being of children. There was
evidence that violence often flared up at the first respondent's
rallies. People would get injured. Children are impressionable. The
deponent to the first respondent's affidavit admitted an incident
where abusive language was uttered at a rally attended by children,
but said the incident was now only relevant for historical purposes
because the first respondent, under the new dispensation, is now, as
it were, a new creature.
I
did not agree.
Evidence
placed before me showed that the first respondent was still the same
old creature and still perpetrating the same old abuses.
I
found the report by the Zimbabwe Human Rights Commission most
credible. It was balanced. Among other things, it made comparisons of
rallies by the first respondent and those by one of the main
opposition political party. No children were being compelled to
attend rallies of opposition political parties. I also found that
before it published its report, the Commission had invited the first
respondent to comment, but that nobody did.
I
was satisfied the application met all the requirements for an interim
interdict. It was on that basis that, at the end of the hearing, I
granted the relief sought in the draft order as follows:
“Pending
the final determination of this present case and/or the conclusion of
the 2018 election cycle, including any run-off election, whichever
comes first, it is hereby ordered:
(i)
The first respondent is interdicted and restrained from asking,
encouraging or forcing children at schools to attend or to
participate in political rallies or activities or causing the closure
of schools for any of its political rallies or activities.
(ii)
The first respondent is interdicted and restrained from compelling
teachers to attend political rallies, wear party regalia, prepare
performances for children to deliver at rallies, or make
contributions towards rallies whether in cash or kind.
(iii)
The first respondent is interdicted and restrained from using school
property including school premises, buses, furniture, classrooms or
any other property that belongs to the school, the Government or
School Development Associations for any political rally or any other
political purpose.
(iv)
The second respondent and/or any employees of his Ministry are
interdicted and restrained from assisting the first respondent to do
any of the restrained activities above or allowing the first
respondent to use schools for political purposes.”
