One day in 1980 that I receive a call from Judge John Pittman. He wants me to be an assessor in the trial of Edgar Zivanai Tekere[1] in a charge for the murder of a White farm manager, Gerald Adams. The other assessor is to be Peter Nemapare, a Black magistrate. It strikes me that the composition of the court involving a White judge being assisted by one Coloured and one Black assessor is an exercise of "political correctness" undoubtedly on account of the sensitivities of the case and Tekere's importance. I had never been an assessor before. I accept the call to the discharge of an onerous but sacred duty.
On 3 November 1981 I re-enter "A" Court, having slunk out of there in 1964 when the great Sir Hugh Beadleput the fear of God in me with the parting admonishment- "Sergeant - take him away - and I hope to never see him in my court!"
I take my place, sitting on the right side of Judge Pittman, to a jam-packed courtroom, including journalists from all over the world. Before the hearing a journalist radio-calls home base saying- "I am outside the court - and starting to talk to the accused Edgar Tekere- and I am scared shitless - "Advocate Chris Glaumstands up to announce that he is appearing for the State, followed by Advocate Blom-CooperQC, from England, who announces his appearance for Tekereand his seven co-accused. So begins a sensational trial.
That the trial was to be sensational was guaranteed firstly on account of the fact that Tekerewas the President of ZANU, our victorious ruling party. Secondly was the fact that he had killed a White farm manager. During the only recently ended war such people were routinely targeted by the guerrillas and many lost their lives. Now the killing of such a person was to be visited with a trial in which conviction exposed Tekereto a sentence of death by hanging. On the already known facts Tekerehad not behaved as a criminal. He had not killed a man during the course of a robbery or over a woman or for any of the usual criminal motives. The man had been killed by a member of his uniformed platoon as he was embarked on a security sweep of a farm from which gunfire had emanated the night before. Why was Mugabeputting his Commander in Chief on trial in such circumstances? If convicted would Tekerehang? These questions loomed large in the minds of an intrigued new society.
Blom-Cooperwas a flamboyant exponent of the art of advocacy. John Pittmanwas soundly conservative and traditionalist in temperament. Soon there was friction between the two and this subsisted until the end. On several occasions the judge would summon counsel to chambers and the two would have a vociferous verbal confrontation with no holds barred. Pittmanneeded Blom-Cooper to understand who was in charge in court and Blom-Cooper needed Pittmanto understand who was in charge in defending the accused. Thus they talked "across" each other instead of "to" each other and there was never a winner, let alone a solution. The confrontations were somewhat traumatic for Peter and me given our lack of experience of such situations involving legal giants.
When the trial concluded we met in final discussion guided by Pittman. He was absolutely clear in what was, in effect, a directive. In so far as Tekerehad conducted the sweep on the farm he had done so imbued with misplaced revolutionary passion and zeal. The death of Gerald Adamswas a foreseen eventuality in respect of which Tekerecould not have cared much and had been reckless as leader of the sweep. In law the whole operation had been unlawful and therefore inexcusable. Tekerewas therefore guilty of the common law crime of murder.
An important remaining question however was whether or not Tekerewas indemnified against conviction in terms of the 1975 Indemnity and Compensation Act, still on statute books. This had been enacted by the previous Ian Smithgovernment despite considerable opposition from the legal profession and human rights groups. This law was typical of laws passed by governments to protect their troops and security agents from conviction for otherwise criminal actions taken on behalf of the state in good faith. By "good faith" was meant "utter and genuinely held conviction". Instructive is the infamous Mai Lai[2] massacre as reported.
"On March 16, 1968 the angry and frustrated men of Charlie Company, 11th Brigade, Americal Division entered the Vietnamesevillage of My Lai." This is what you've been waiting for -- search and destroy -- and you've got it," said their superior officers. A short time later the killing began. When news of the atrocities surfaced, it sent shockwaves through the U.S. political establishment, the military's chain of command, and an already divided American public."
What happened at My Lai could never have been subject to protection under United States indemnity legislation on account of the total absence of "good faith". The My Lai massacre was an act of pre-meditated, purposeful revenge. The murder of Gerald Adamswas the consequence of impetuous, rash and unreasonable conduct by a man who on account of history and circumstance, primarily not of his own making, was inflamed with revolutionary passion and zeal. In particular Tekereundoubtedly believed that the military style sweep was necessary in order to protect the security of the state, especially as there had been gunshots emanating from the farm the night before.
We scarcely debated the issue, as the central issue had been so clearly exposed in evidence and, in particular by Tekere, as a witness. He was utterly convincing for being unreasonable, intemperate and passionate about what he considered his duty to ensure the security of the newly won state of Zimbabwe and its leaders. That this was "good faith", as envisaged under the 1975 Indemnity and Compensation Act, Judge Pittmanhad absolutely no doubt. Neither had we in accepting his analyses, which, in any event, fully accorded with our view. The meeting did not last long and the judge undertook to write a judgment which he would send to us before resumption, for handing down.
About two weeks before resumption Judge Pittmanphoned me to say he had changed his mind and would be sending me a draft judgment to that effect, convicting Tekereof murder. The document never arrived. When we met on the day the judgment was due to be handed down, 08 December 1980, he purported to make a case for rejection of "good faith" on Tekere's part. It was a rambling explanation that failed to answer an important question which I then put to him more than once.
Why had he changed his mind? What had made him to do it? On consideration of the very same facts, issues and assessment of Tekereas a witness he had previously been satisfied beyond doubt that Tekerehad acted in "good faith" and now he was satisfied on "a balance of probability" that Tekerehad not acted in good faith. I was a mere magistrate. So was Peter. Magistrates held judges in reverence. The situation was extremely confusing to us and we said so. No clear explanation was proffered by this normally eloquent and clear exponent of the art of setting out law and fact.
Instead he uttered words to the effect that, in any event, he was sure that this was "what the top guy wants", clearly referring to Mugabe, then Prime Minister. I was shocked to the core, even accepting that the statement was simply his opinion and not an indication of political interference. Peter and I refused to relent in our stance, despite Pittmanexhibiting annoyance at our intransigence.
What was now a very painful confrontation ended with him ordering me to write a dissenting judgment on the issue of indemnification for Tekereand his men on the basis of "good faith". Having been confused, then numbed, we were shattered when he then said that I was not to be allowed access to court facilities or use of a court typewriter. In addition I had just a couple of hours in which to produce the judgment. Given Pittman's stature as a judge, undoubted gifts as a jurist and depth of experience, his conduct was unfortunate, on a number of counts, starting with his treatment of Peter and I, who had accorded him highest respect throughout.
I left court and went to a florist shop, owned by my cousin Penelope Theunissen, where I borrowed a typewriter and did my best with setting out our reasons. On resumption he handed down a judgment ending with a summary of our view. In an article title"Saved by Ian Smiths law"Time[3]reported the proceedings as follows -
"Flanked by his lawyer in a Salisbury courtroom last week, Tekereglowered menacingly as white South African-born Justice John Pittman, wearing the traditional red robe and curly wig, began reading the verdict. Pittman's dry voice droned on for 50 minutes, but his final words rang out like a shot: "All the accused are acquitted."
The chamber erupted in pandemonium. Tekere, barely fighting back his own tears, fell into the arms of his weeping wife. His jubilant supporters hustled him out of the courtroom and into a cheering throng of well-wishers, many of whom raised their arms in clenched-fist salutes. From upper-story windows of the courthouse, white civil servants gazed stunned and stony-faced at the impromptu fete."
"The trial was conducted according to the best traditions of our inherited judicial system," said Prime Minister Robert Mugabe."
On this occasion Mugabehad regarded the loss of the life of a White farmer as sacred, and had insisted that the law take its course, even though the accused was the President of his party. Time Magazine concluded that a test of the new government had been successfully passed.
One day in 1980 that I receive a call from Judge John Pittman. He wants me to be an assessor in the trial of Edgar Zivanai Tekere[1] in a charge for the murder of a White farm manager, Gerald Adams. The other assessor is to be Peter Nemapare, a Black magistrate. It strikes me that the composition of the court involving a White judge being assisted by one Coloured and one Black assessor is an exercise of "political correctness" undoubtedly on account of the sensitivities of the case and Tekere's importance. I had never been an assessor before. I accept the call to the discharge of an onerous but sacred duty.
