The rapid breakdown of standards of law in white Rhodesia has been dramatically illustrated in recent weeks through the setting up of special "mobile courts" in the operational areas to try offences under the Law and Order (Maintenance) Act. The Emergency Powers (Criminal Trials) Regulations 1976 provide for impromptu trials to be convened in which the right to legal defence has been virtually extinguished and the rules of procedure reveal some drastic departures from accepted legal conventions.
The purpose of the special courts, as set out by Ian Smith at a press conference announcing the new regulations on 30 April, is to clear a backlog of "terrorist cases" while placing a new propaganda weapon in the hands of the security forces. "We believe it is important", he said, "that justice should be seen to be done, particularly in the areas where the crimes are committed". It is clear that the trials of captured guerillas, in particular, and those accused of assisting them, are to be made much greater use of as a warning to local residents.
Under the Regulations, a special court sitting may be convened by its president at any place and time of his own choosing, and may try an accused person regardless of where the offence with which he is charged is alleged to have been committed. This inherent unpredictability clearly raises grave problems as far as arrangements for a defence counsel are concerned, quite apart from the impediments to a fair trial built into the rules of court procedure. The first sitting of a special court to be reported in the press opened in Umtali Magistrate's Court in the last week in May and since then, sittings are known to have been held in Nyanga, Chiredzi and Salisbury.
The special courts are empowered to impose the same range of punishments as the General Division of the High Court, including the death penalty. Under Section 3 of the Regulations they may try any offence under Part III of the Law and Order (Maintenance) Act (which is by no means confined to offences connected with guerilla activity), plus any offences "connected directly or indirectly with the furtherance of the aims and objects of terrorism". There is no further definition of this vague category.
In the space of a week at the end of May, eight people are known to have been sentenced to death by special courts. Although provision is made for appeals against conviction and sentence "the execution of any sentence of imprisonment or a fine shall not", under Section 12, "be suspended by the noting of an appeal".
Sittings may be open to the public but, as in existing court proceedings, may be held entirely in camera for security reasons at the request of the prosecution.
Each special court is to consist of a President appointed by the Minister of Justice, Law and Order in consultation with the Chief Justice, and either two or three other members selected by the president from a panel of persons appointed by the Minister for the purpose. The president need have no further legal qualifications than those required to practise as a magistrate, advocate or attorney despite the fact that the courts have powers of life or death. The other members need have no formal qualifications at all. So far, Mr Justice Beck, Mr Justice Baker and Mr Justice Smith are reported to have served as Presidents at special court sittings.
The Rhodesian public has been assured that "standards of justice are going to be maintained" in the special courts. Under Section 7, the accused is entitled to be represented by an advocate or attorney of his own choice. However this right can be overruled by the President if in his opinion getting a defence counsel to the court would result in "undue delay." There is no definition of "undue delay", an omission made all the more serious by the powers available to the President to convene hearings at short notice and in remote areas subject to strict security.
The rules of court procedure are also highly unorthodox. Under Section 7, the President may authorise any deviation from normal practice if "exceptional circumstances" — undefined — exist or if he is satisfied that such a move "will not result in a substantial miscarriage of justice". By implication, minor miscarriages may be permitted. It would appear from the Regulations that an accused may be called before the court having had little advance warning of the charges against him or time in which to prepare a defence. Under Section 7, he shall merely "at the commencement of his trial, be provided with a written charge containing sufficient information to inform him of the allegation made against him and to enable him to plead thereto" (emphasis added).
Before the case for the prosecution is presented, an accused who has pleaded not guilty shall be invited "to make a statement outlining the material facts on which he relies for his defence." If the accused opts to do so, but fails to mention any fact considered relevant, the court may use this as corroborating and hence incriminating evidence. The provision appears to give free rein to the court to pressurise the accused to reveal his defence in its entirety at the outset of the hearing.
Once the prosecution case has been put, the accused is obliged to give his own evidence first, losing his traditional right to decide the order of defence witnesses. The right to silence has also been eliminated, in that even if the accused elects not to give evidence, he can be questioned by the prosecution and the court. If he refuses to answer any question, the court may draw an adverse inference and treat his refusal as corroborating evidence. It would appear that he can be forced to answer any question which may incriminate him even if it is irrelevant to the charge under consideration, or indeed if it incriminates some other person.
Also prejudicial to the accused is the provision that if he fails, before coming to court, to volunteer information relevant to his defence to the police on being questioned, charged or merely informed that he might be prosecuted for a particular offence, the President may draw an adverse inference. This obligation to reveal information to the police before the full details of charges are known puts any suspect in an impossible position: whatever he does under interrogation is liable to convict him later.
In striking contrast to the reaction to the new Indemnity and Compensation Act in the autumn of 1975, scarcely a word of protest has been raised in Rhodesia at the introduction of these new measures.
