By Dr Tafataona Mahoso
I STARTED working with the late Ambassador Johannes Tomana in 2002, when he was a partner at Muzangaza, Mandaza and Tomana. He became legal counsel for the then Media and Information Commission (MIC). I was one of the seven founding Commissioners of the MIC as well as its executive chairman.
In his roles as legal counsel to public entities in the media sector and later on as Attorney General and Prosecutor General, the late national hero had to deal with legal and Constitutional crises in which his exceptional performance elevated his national and international stature as a patriotic lawyer, as an intellectual, strategist, team player and pro-active tactician.
In this brief tribute, I outline only a few of the situations and missions of national import in each of which he played a critical role. Being an honest team player was one of his heroic virtues.
On Anglo-American sponsorship of journalists and lawyers
In practical terms, the challenge facing Tomana as MIC Counsel and the Government of Zimbabwe as policymaker and policy manager was the Western choice and sponsorship of journalists and lawyers as the leading and ‘morally correct’ professions for spearheading white opposition to the Third Chimurenga and thereby postponing the African land reclamation revolution by prolonging the myth that the African was happy to remain a permanent ‘willing-buyer’ of white-stolen African land while the remaining white inheritor of that same land would remain permanently the ‘willing-seller’ who would, occasionally at his or her convenience, cede land to selected African elites against the landless masses.
This challenge meant that, from the Western and local neo-Rhodesian viewpoint, the ideal of ‘rule of law’ in Zimbabwe would have to exclude new and effective legislation on media, on the judiciary and on land tenure; otherwise any such ground-breaking legislation emerging from the post-war dispensation would automatically be condemned as unjust, draconian and dictatorial. This literally meant the Western powers had put in place a veto by proxy against any progressive Zimbabwean legislation likely to upset the post-independence status quo enshrined at Lancaster House in 1979.
To put into perspective the enormity of the challenge Tomana was to confront (earlier, as the key legal Counsel to media regulating public entities and, later, as the nation’s Attorney-General), it is neessary to explain the supportive enviroment the now late Ambassador Tomana would have relied upon as he embarked on his illustrious career if he had been in Europe or North America. To do that, one can cite Wesley G. Skogan’s ‘Judicial Myth and Reality’ in The Washington University Law Review of January 1971, which states that:
“Like other attitudes and opinions, beliefs about law and the judiciary (in a normal situation) are learned through a complex process of socialisation which begins early in life. Because they arise out of the social and cultural milieu that forms the environment which shapes learning, the attitudes which support judicial legitimacy are closely tied to the general value orientations which characterise a culture at any particular time…individual citizens arrive at their evaluations of the judiciary within the general value framework which constitutes their culture. Although judicial legitimacy in the abstract may perform highly valued social functions, it exists because the citizenry perceives the judiciary as embodying its most valued norms.”
The need for a national mindset supportive of progressive legislation as well as progressive court judgments was a major concern for Tomana, especially after he became Deputy Attorney-General and later Attorney-General.
What our national hero faced between 2002 and 2012 was the exact opposite of what Skogan describes in the passage just cited. Indeed, on March 27 2002, Baffour Ankoma, Ghanaian editor of the Pan-African magazine New African, delivered a lecture which demonstrated the challenges Tomana faced both as legal Counsel for media-related public entities and much later as Attorney-General.
Ankoma said, Britain, the leading power among Zimbabwe’s detractors, enjoyed the protection of more than 50 pieces of legislation which tightly controlled media operations and were clearly harsher than any of Zimbabwe’s new media laws. But despite this fact, the harsh British media laws were not controversial and there were no campaigns inside the UK or abroad to make those laws controversial; instead, the British laws were generally accepted as normal, understandable, regularly enforced and regarded as an important pillar of the rule of law at the very same time British-sponsored and Western-supported media and NGOs in Zimbabwe were, daily, condemning this country’s new media legislation and its enforcement as draconian, undemocratic and unjust.
In contrast, tough British laws regulating media governance were taken as part and parcel of the British tradition of ‘rule of law’ to be obeyed “…precisely because the laws are there and the media obey them, religiously. Those who, on rare occasions, disobey them are duly arrested, harassed, intimidated and at times prosecuted…” and jailed.
Ankomah then proceeded to list examples of both the journalists and the British laws under which they had been arrested, prosecuted and/or jailed.
This is not to suggest that our national hero would have wanted to be born in Europe or North America where the culture would have been in harmony with his legal training.
To the contrary, Tomana recognised the disjuncture between, on one hand, the legislative agenda of the Second and Third Chimurenga and, on the other hand, the foundation of Zimbabwe’s neo-colonial law and its judiciary and Law Society in Roman-Dutch and English law.
He even embarked on an African Living Law project but couldn’t mobilise the required finances and the intellectual support for that project while at the same time attending to pressing legal and Constitutional matters at hand.
Years later, when the Western media war against Zimbabwe had subsided and scholars started to study it closely, the majority of them concluded that most journalists had never read the Access to Information and Protection of Privacy Act (AIPPA). They condemned the law in hundreds of forums at home and abroad solely on the basis of hearsay and the generous availabilty of donor sponsorship for anyone who wished to jump on the bandwagon of the anti-Zimbabwe lobby.
Confronting the Western-sponsored confusion
The imperialist decree imposing sanctions on Zimbabwe in 2001 contains a telling phrase — “economic recovery” .
The decree’s full title is: ‘Zimbabwe Democracy and Economic Recovery Act’ (ZDERA).
Any objective examination of the interests and forces that triggered the decree and how the sanctions have been applied makes it clear that it is not the people’s economy that is supposed to recover through ZDERA. Rather it is the former white settler-farmers who were seen as having lost property in land and having lost income to an African revolution. Therefore, the former white settler-farmers needed to recover both through US imperialist intervention.
Indeed, once the people of Zimbabwe had conclusively shown their determination to reclaim their inheritance in land by occupying the so-called ‘white-owned’ farms, Zimbabwe’s detractors, as avowed detractors of Tomana, escalated their ‘lawfare’ by using bogus court cases outside the country for demonisation purposes. Tomana and his teams were faced with having to explain to the Government and the people the meaning of the bogus Western-sponsored ‘legal precedents’ set by the wayward SADC Tribunal in Windhoek, Namibia, and later adopted by whites in South Africa, who organised as AfriForum and used the SADC Tribunal’s rulings against Zimbabwe to appeal to South African courts.
Therefore, on January 13 2010, The Mail and Guardian reported that: ‘AfriForum wins bid to sue Zimbabwe over land reform’ in the South African Supreme Court, Cape Town. On September 20 2012, The Voice of America also reported that: ‘Zimbabwe loses land appeal in SA Supreme Court’.
At the time of the initial judgment on February 25 2010, VOA had reported thus: “South Africa’s Supreme Court of Appeals has ruled that Zimbabwean Government-owned property in Cape Town should be sold to copensate former white commercial farmers who lost their land during the chaotic agrarian reforms that started in 2000.”
VOA then quoted the spokesperson of the displaced white farmers, who said: “The entitlement (meaning court award) is actually a drop in the ocean compared to what they have actually lost because the losses of each and every farmer amounts to (USD) $100 million per farmer on overage.”
The Supreme Court of South Africa relied on a series of anti-Zimbabwe judgments which the SADC Tribunal had made in violation of its Charter since 2008.
Both the SADC Tibunal in Windhoek and the Supreme Court of South Africa delivered judgments claiming jurisdiction over Zimbabwe’s land revolution which they purported to annul in the name of setting up ‘international best practice’.
The latter awarded compensation to the former white farmers displaced in Zimbabwe. The Government of South Africa was, therefore ,instructed to seize Zimbabwean property in South Africa and hand it over to former white settlers or their heirs.
Looked at in the context of Skogan’s description of the normal desired relationship between judicial legitimacy and culture, one is impressed by the extreme degrees of provocation which Tomana and colleagues had to endure in their pursuit of the ‘rule of law’ as including the right of the people to pursue new legislation and to set judicial precedents affirming revolutionary justice.
Nothing could be more provocative than a situation where a white judge in post-apartheid Cape Town instructed the ANC-dominated Government of South Africa to seize Zimbabwean public property on behalf of former Rhodesian white farmers! An African government elected by a landless and land-hungry African majority to reclaim land for that majority was supposed to take instruction from a white judge to do the exact opposite: Demonstrate the forfeiture of land reform in South Africa itself by helping whites to reverse neighbouring Zimbabwe’s land revolution. Even the purported statistics on how much each displaced white farmer had lost in monetary terms were just as provocative; since no effort was made to acknowledge, let alone assess, what the Africans had lost between 1890 and 2000.
What this scandalous situation shows is that the issues which our hero was seized with were profound, longstanding and far-reaching. They touched millions of lives beyond our borders so much that if South Africans had correct information about Tomana’s career, they too would decorate him as a hero of their own.
Shredding the blanket label of ‘blood diamonds’
The Western demonisation campaign against Zimbabwe reached its peak with the sponsorship and setting up of NGOs and media outlets to help ban the country’s recently unveiled Chiadzwa diamonds from the international market.
A blanket label of ‘Blood Diamonds’ was slapped on Zimbabwe’s gems and the Kimberley Process manipulated to achieve the detractors’ pursuit of a total ban.
To defeat the detractors’ efforts, our hero was tasked to lead Zimbabwe delegations from the mining and the justice sectors who attended various international forums including the following:
λ The June 2010 Kimberley Process Meeting in Tel-Aviv, Israel, where enormous progress was made in putting the foreign-sponsored NGOs in their place and getting delegates to understand Zimbabwe’s side, resulting in favourable findings regarding the country’s interest.
λ The July 2010 Diamond Council Meeting in St Petersburg, Russia, resulting in what came to be known as the St Petersburg Verdicts of both the Council and the KP supporting Zimbabwe’s position.
λ The August 2010 Meeting of the African Diamond Producers Association (ADPA) which also produced a favourable verdict despite the organisation’s infiltration by foreign sponsors of the ‘blood diamonds’ provocation.
λ These interventions resulted in the KP Certification of Zimbabwe’s Chiadzwa Diamonds on August 11 2010.
λ Finally, from December 2011 to January 2012, Abbey Chikane went to Chiadzwa as the Diamond Industry’s designated KP Monitor and produced a report with the help of Mark van Bockstael.
In conclusion, a few points are in order.
The internet is full of wrong information, even hate speech, against our national hero who has passed on probably without producing his own memoirs. This is true of many of our heroes and it is truly regrettable. This tribute is, therefore, an invitation to other compatriots to publish correct accounts of our hero’s life.
A second point is on how intertwined all the major national issues in which our hero was involved.
Issues about national legislation and judicial legitimacy became internationalised through the SADC Tribunal and the Supreme Court of SA until they came back home to the Supreme Court of Zimbabwe under Chief Justice Chidyausiku.
But that happened only after Zimbabwe persuaded the SADC Summit, principals and creators of the SADC Tribunal, to revoke that body’s Charter after determining that condemning Zimbabwe’s African land reclamation and land tenure was way outside the tribunal’s jurisdiction.
The diamond issue was international from the beginning but it also raised many pointers on what Zimbabwe’s overall mines and minerals policy ought to be in terms of balancing foreign corporate interests and the people’s interests, including endowment and transparency of the Sovereign Wealth Fund.
The issue of State regulation of media versus self-regulation by media practitioners has been overtaken by the emergence and spread of so-called artificial intelligence (AI), its large language models (LLMS) and the unleashing of chatbots which are displacing or replacing journalists.
The equivalents of media regulation and AIPPA are now being discussed between giant AI corporations and governments co-ordinated by the UN.
Governments, UN agencies, creators of LLMs, users and alleged victims of AI all agree on the global need for elaborate AI legislation. But it remains unclear what the intended legislation is supposed to achieve.
It is clear that the detractors of Tomana on matters of media and society were driven by the Cold War Orwelian view of dictatorship and information, where society was supposed to be controlled through the denial of information and the banning of books.
But the problem of the late 21st Century will be the dead-end result of digitised neo-liberal inclusivity, where ‘infoglut’ will mean that there is no longer any book or story or information noticed deeply or long enough to be banned, denied or suppressed.
That is the ultimate philosophical outcome of undefined and unlimited inclusivity. People will tolerate so much information and communication that its outcome would be their universal passivity in the name of inclusivity and bored borderless tolerance which won’t actually mean anything because meaningful tolerance can happen only where people have defined what is not acceptable or tolerable.
In other words, all the slogans on pluralism, tolerance, inclusivity and so on will no longer mean what they used to mean in the Orwellian Cold War.
They will be just euphemisms for utter passivity under a culture where LLMs and other AIs will supply everything in unlimited and uncensored quantities and qualities; from films and videos to books and stories for individuals’ passive consumption.
In such a situation, more information cannot lead to change or revolution. To some extent, global television in hands of corporations is already driving societies toward that vision of passivity.
Opening up the airwaves is limited to multiplying digitised channels without much thought being given to content development. Vapid marketing and branding are now the main content.
