JOHANNESBURG – Last week, the United States Supreme Court ruled that detainees at Guantánamo Bay have the right to habeas corpus – the right to challenge the factual and legal basis of their detention in a court of law. I was elated by the decision, having spent four years working on ensuring the rule of law in US detention and interrogation policy, including monitoring military commission trials at Guantánamo Bay. But my happiness is tempered by where I sit, close to the border with Zimbabwe – a country where the writ of habeas corpus and the rule of law have become obsolete.
Habeas corpus, Latin for “you have the body,” is an old English common law principle incorporated into the US Constitution to ensure freedom from unlawful detention by the state. It was and continues to be a critical check against the imprisonment of individuals without oversight by independent courts. In Zimbabwe, this right – like so many other checks and balances – has been torn away by a repressive state.
Just hours before the US Supreme Court ruling, Tendai Biti, the Secretary-General of the opposition Movement for Democratic Change (MDC), was arrested upon his return to Zimbabwe. Despite immediate attempts by his lawyers to locate him, his whereabouts remained unknown for days. The police dismissed an initial court order demanding that Biti be produced before the court.
After Biti was finally produced before the court days later, the government announced that he will be charged with treason – which carries the death penalty – for unofficially announcing the results of the March 29, 2008, elections. Prior to his detention, Biti had responded to such allegations by stating that his only crime was to fight for democracy in Zimbabwe. It is unlikely that he will be able to challenge the basis of his detention in an independent court.