Author: TSA Press

A federal court has dismissed a defamation lawsuit brought against the Splinter website by a former Trump staffer. Jason Miller, a Trump campaign spokesman, sued after Splinter published an article that included allegations made by another Trump staffer Miller had an affair with. The allegations being sued over weren’t your normal allegations. These allegations were made in court by A.J. Delgado, Miller’s affair partner who later had Miller’s child.

Whether or not the allegations made by Delgado were true is irrelevant. Miller may have been correct his reputation had been damaged by the publication of these court documents (but $100 million-worth?), but the fact remains they were court documents. Filing a defamation lawsuit over reporting on court documents is per se stupid.

The thing about allegations made in court is that, while they can be defamatory, they cannot be sued over. Miller understood at least this much, it appears, because he didn’t sue the staffer he had an affair with. He instead sued Splinter, which published an article containing the court document with the allegations in it. Miller may have thought he had found a softer target. But he was wrong, as the federal court points out.

Reporting on court documents is protected under New York law. Splinter invoked this law to defend its reporting. The court agrees the law applies. Because it does, it has no reason to examine any other of Miller’s claims. From the decision [PDF]:

Under New York’s fair report privilege, codified in section 74 of its Civil Rights Law, “A civil action cannot be maintained against any person, firm, or corporation, for the publication of a fair and true report of any judicial proceeding . . . .” N.Y. Civ. Rights Law § 74 (alteration and emphasis added). The purpose of the statutory privilege is to protect reports of judicial proceedings “made in the public interest.”

Because Splinter was honest about how it obtained this document and, crucially, included the document itself in its post so readers could draw their own conclusions about the contained allegations, the court finds it fulfilled the requirements of the state law on court document reporting.

With the summary judgment standard in mind, review of the record shows the Article: (a) states the allegations come from an “explosive new court filing” in the “ongoing custody battle” between Plaintiff and Delgado (Article 2); (b) describes the “acrimony” between Plaintiff and Delgado (id. 4); (c) describes how Delgado obtained the information (see id.); (d) quotes the victim’s alleged reaction to the journalist, exactly as it is quoted in the Supplement (see id. (quoting Jane Doe stating: “Yes, that happened to me — how did you know? Who told you?” (internal quotation marks omitted)), see also Supplement 9 (same)); and significantly (e) embeds a full copy of the Supplement, so readers can review the Supplement without leaving the webpage (see Defs.’ SOF ¶ 91). Considering these undisputed facts, the Article is a substantially accurate report on the Supplement under New York law.

Always post documents. It’s amazing how many reporters treat court records as privileged information, limiting readers to the journalist’s interpretation of a ruling or filing. More generally, suing over reporting on court documents is a bad idea. If you can’t sue people for what they say about you in court, it would seem to follow that suing for reporting on what people said about you in court is a non-starter.

Court Tosses $100 Million Defamation Suit Brought By Former Trump Spokesman Over Reporting On Court Documents

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Listen… typos happen. I get that. After all, I churn content daily for a blog, so I am well aware that that these small mistakes often happen in the rush to publish. Sometimes your brain just moves faster than you can type, or you mishit a key, or a sentence gets badly mangled in the self-editing process. All of which is to say, I really do sympathize and acknowledge that mistakes shouldn’t be a big deal.

But…

But when a publication is THE authority on legal citations that the law school perfectionist/overachievers known as gunners worship, well, then we’re going to take notice. After all it isn’t the first (or likely last) time Above the Law has documented a slew of errors in these pages. There’s just something so satisfying about seeing a a mistake in the tome that causes so much angst in law students. So we just had to post about it when an eagle-eyed tipster sent us a picture of a clear error in the Bluebook.

Now, is it a giant mistake? No, of course not. But it still elicits a smirk when I see it.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Robert Mugabe, who led Zimbabwe for almost four decades, has died aged 95, leaving behind an indelible stain on his country’s human rights record, said Amnesty International.

His early years as leader of Zimbabwe, following the transition from British colonial rule, saw some notable achievements through his heavy investment in social services. Areas including health and education saw dramatic improvements, with the country still enjoying one of the highest literacy rates in Africa. However, he later eroded his own track record.

During his 37 years in power, he presided over the brutal repression of political opponents and established a culture of impunity for himself and his cronies, while his government implemented a series of policies that have had disastrous consequences.

“While casting himself as the saviour of Zimbabwe, Robert Mugabe inflicted lasting damage upon its people and its reputation,” said Muleya Mwananyanda, Amnesty International’s Deputy Regional Director for Southern Africa.

As a leader of the resistance to the white minority government of what was then known as Rhodesia, Mugabe began his political life fighting against injustice. Imprisoned and later exiled for his political activities, he was one of more than 900 prisoners of conscience adopted in Zimbabwe by Amnesty International between 1965 and 1979.

Boosted by his image as a champion of the victims of imperialism, Robert Mugabe became Zimbabwe’s first post-independence prime minister in 1980 on a platform of reconciliation.

However, shortly after taking office, he deployed the repressive machinery of the state against political opponents. During the 1980s, in a military crackdown, known as Gukurahundi – loosely translates as “the early rain which washes away the chaff before the spring rains”, that widely targeted suspected opposition supporters, some 20,000 people were killed in Matabeleland and Midlands provinces. Many of the dead were unarmed civilians.

Amnesty International’s calls for the prosecution of suspected crimes committed by his supporters and by the security services went unheeded. In a warning that would prove prophetic, the human rights organization said at the time that a failure to hold anyone accountable for the Matabeleland and Midlands violations would set a dangerous precedent.

Though he came to office on a wave of popular support, Mugabe’s tenure as prime minister, and then as president, was defined by a stubborn determination to hold on to power – an end to which he sacrificed Zimbabwe’s economy, institutions, and society.

Throughout his presidency, general elections were marred by spikes in serious human rights violations and abuses by state security agents and ZANU-PF activists. Opposition supporters suffered torture, harassment, intimidation and even death. Some were disappeared without a trace.
In 2008, following his first-round ballot loss to the Movement for Democratic Change (MDC) candidate Morgan Tsvangirai, the army unleashed a wave of violence in which more than 300 people were killed and thousands injured or tortured on suspicion of having voted for the opposition. The response saw opposition MDC leader, Morgan Tsvangirai, withdrawing from the second round of voting.

Again, Amnesty International called for the crimes to be investigated. Again, the call went unheeded.

“Whenever Mugabe felt under pressure he defaulted to sanctioning human rights violations, publicly defending the actions of his officials’,” said Muleya Mwananyanda.

The early progress made by Mugabe’s government on economic, social and cultural rights was wiped out by a series of disastrous government policy decisions.

In 2000, Mugabe sanctioned a violent land reform programme, ostensibly to redress skewed land distribution resulting from 90 years of colonial rule.  While the need for land reform was legitimate, Mugabe used the redistribution programme as a system of patronage, rewarding his supporters with land while denying those considered political opponents. The programme was also used as a front to disguise the violent targeting of farm workers who had supported the opposition.

In 2005 Mugabe presided over one of the most disastrous forced eviction campaigns in African history. Known as Operation Murambatsvina – a Shona word meaning “drive out trash” – it targeted urban shack dwellers. The United Nations estimated that 700,000 people had their homes, livelihoods, or both, destroyed.  The evictions drove most of the affected people deeper into poverty, with many continuing to live without access to health, education and other basic services.

An increasing reliance on his security services to suppress dissenting voices within and outside his party became a hallmark of the latter years of his rule. Opponents including human rights defenders, journalists and opposition party activists were locked up on politically motivated charges or under draconian laws. The less fortunate were killed. Mugabe was also uncompromising in his opposition to LGBT rights, saying that they were “worse than dogs and pigs”, and favoured more anti-homosexual legislation.

Escaping repression and a shrinking economy, an estimated three million Zimbabweans have left the country since 2000.

Finally forced to resign in November 2017, his long-time lieutenant Emmerson Mnangagwa – later his political rival in the jostling for the control of Zimbabwe with the ruling ZANU-PF – engineered his exit from the presidency with the backing of the army.

“Mugabe leaves behind permanent scars of his brutal rule. Going forward, those who come after him must forge a national healing programme, beginning with accountability for the past human rights violations. Zimbabweans deserve the truth,” said Muleya Mwananyanda.

Post published in: Featured

The end of an era in Zimbabwe’s history has come. Robert Mugabe died in Singapore on 6 September 2019 aged 95. Ironically he did not die in his own country which he ruled for 38 years or in a Zimbabwean government hospital where doctors are on strike and where hospital staff were last week reprimanded at Chitungwiza Hospital for eating patients’ food.  He did not die in a Zimbabwean hospital where patients must pay cash upfront for everything from medicines, splints, bandages, syringes and needles to drips, injections, anaesthetists, specialists and surgery.

Robert Mugabe   21 February 1924 – 6 September 2019.
Prime Minister and President of Zimbabwe  April 1980 – 21 November 2017.

17 April 1980 on the eve of Zimbabwe’s Independence, Robert Mugabe said: “An evil remains an evil whether practiced by white against black or by black against white. Our majority rule could easily turn into inhuman rule if we oppressed, persecuted or harassed those who do not look or think like the majority of us. Democracy is never mob-rule.”

About the massacre of 20,000 people in Matabeleand by the 5^th Brigade of the Zimbabwean army between 1983 and 1987, Robert Mugabe said:” it was a moment of madness.

2000: Referring to white Zimbabweans during the invasions of commercial farms by Zanu PF supporters and war veterans: “You are now our enemies because you really have behaved as enemies of Zimbabwe. We are full of anger. Our entire community is angry and that is why we now have the war veterans seizing land.”

2006 on the arrest and torture of fifteen trade union activists in Zimbabwe: “Some are crying that they were beaten. Yes you will be thoroughly beaten. When the police say move you move. If you don’t move, you invite the police to use force.”

2008 in Bulawayo, Zimbabwe: “Only God who appointed me will remove me, not the MDC, not the British.”

2010 in Zimbabwe about gays and lesbians:  “Worse than pigs and dogs… Those who do it, we will say, they are wayward. It is just madness, insanity.”

Cathy Buckle, Zimbabwe.  6 September 2019. www.cathybuckle.co.zw

Post published in: Featured

The spousal privilege is the privilege I understand the most. It’s the privilege that, to me, seems most grounded in real, equitable concerns. Sure, the attorney-client privilege is necessary from a pure “process” standpoint. Other privileges allow other professional classes to their jobs free of criminal concerns. But that spousal privilege just seems like a thing that gets to the heart of keeping the state out of your life. The fact that nothing you say to your spouse can be used against you in a court of law makes me feel safe. If you ask me, I think the spousal privilege should extend to Alexa.

According to the state of New Mexico, not only am I wrong, but I am advocating for a misogynistic anachronism that no longer tracks with the real world. The New Mexico Supreme Court has become the first court in the nation to abolish the spousal privilege! The fact that this isn’t somehow front page news leading the entire legal press perhaps shows just how out of touch I am. From the ABA Journal:

The court said the privilege “has outlived its useful life,” report the Legal Profession Blog and the Associated Press. Justifications that have been cited for the privilege “seem little more than soaring rhetoric and legally irrelevant sentimentality,” the court said in its Aug. 30 opinion.

“We believe that the privilege is a vestige of a vastly different society than the one we live in today and has been retained in New Mexico simply through inertia,” the court said in a majority opinion by Chief Justice Judith Nakamura.

I mean, sure, the spousal privilege can be abused. So can all privileges. And sure, it comes from an inherently flawed view that a “wife’s” legal existence was inseparable from her husband’s. That’s bad. If that was sum total of the privilege’s continued existence, we should burn it to the ground. But the court goes this far:

But the privilege rests on assumptions that spouses are aware that the privilege exists, and that they rely on it when deciding how much information to share, the New Mexico Supreme Court said. Those assumptions are untested and do not survive scrutiny, according to the court.

Look, if we judged privileges by whether people know they exist and how they work, no privileges would exist. Whether a person knows that post-coital pillow talk (with your spouse) is inadmissible should be irrelevant. The issue should be whether people have a reasonable expectation that their communications are private. I’d argue that the confines of one’s relationship is where the expectation of privacy is the strongest. I don’t have to know how it works to know, and justifiably rely upon the fact, that when I fantasize with my spouse the six people I’d like to see die in a structure fire, that’s not going to come back on me if one of those people ends up falling down an elevator shaft in our building. I don’t think that because I went to law school, I think that because I know the difference between private and public speech.

We don’t need to abolish the marital privilege because it started from a place of sexism and traditional relationships, we need to expand it to include all of the private relationships we now have that aren’t officially licensed marriage. I can think of nothing more relevant to the modern world than expanding the scope of privacy that we can justifiably rely upon, given technology’s ever present encroachment on our private lives. You shouldn’t have to be “married” to expect that the things you say to your partner while you’re both getting ready for work are subject to some basic legal privileges. I mean, as long as you keep it to yourselves and don’t act like social media is also private, the privilege should extend to a wider array of relationships and choices.

On the other hand:

The court also noted that the privilege was adopted at a time when the wife’s legal existence was deemed to be suspended during marriage or incorporated into the husband’s legal existence. Critics point to that history and say the privilege creates a disparate gender impact because it is more often invoked by men than women and is often used to isolate families from state interference, the court said.

“The misogynistic history of the privilege is obvious and odious,” the court said.

I mean, they’re not wrong. I’m arguing about how the privilege should be used, the court is arguing about how the privilege has been used. The court has the right of that battle.

And if people would like to agree with me, maybe the New Mexico state legislature could re-write this thing along more progressive and modern lines.

Spousal communication privilege ‘has outlived its useful life,’ state supreme court says [ABA Journal]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

LeClairRyan, once a 400-attorney firm with offices across the country, has filed for bankruptcy. The filing has been expected ever since the firm’s dramatic, highly public meltdown began in July with the departure of its founding partner, Gary LeClair, which I’ve been tracing in this column for the past month.

For this last of three pieces about LeClairRyan, I spoke with former firm partners who were there for a key transitional point in the firm’s management culture. The portrait they painted was one of a firm culture that shifted from openness to secrecy, and from meritocracy to patronage, and from smart growth to a desperate search for cash to cover for past mistakes. But more than anything, the story that starts to emerge is one that reads more like that of a would-be emperor imperceptibly and unwittingly transforming into an ersatz Bernie Madoff. Gary LeClair aggressively pursued growth for his firm, at first for its own sake, but later because that growth may have been all that was keeping the firm afloat. When that unsustainable growth stopped, the wheels came off, and the knives came out.

 The Golden Era

Business was booming throughout the legal industry in the mid-1990s, and LeClairRyan was taking advantage. According to former partner David Nagle, Gary LeClair was successfully growing his firm by luring over young business generating partners from throughout Virginia with his mantra of “mutual trust and respect.” A primary selling point was a transparent, open compensation system. “It had one of the most appealing and novel approaches to compensation, called the ‘consensus exercise,’ where all of the equity partners essentially took the total compensation budget, calculated by Gary, and submitted their own charts as to how it should be divided amongst the various partners.” While not binding, this open forum for discussion made sure every equity partner felt heard, and understood why final compensation decisions were made.

Another former partner, John Fitzpatrick, referred to the LeClairRyan of the 90s as a “true meritocracy,” one where the people who produced got rewarded for their effort, far better than they would have at older firms that were more interested in maintaining the older partners’ salaries.

The tech bubble collapse of 2001 was what first put those ideals to the test. Both Gary LeClair and the firm he built relied heavily on servicing entrepreneurial tech companies. LeClair’s book was reportedly decimated, seemingly overnight, and the firm’s financial bedrock was shaken. Firm lawyers, including LeClair, who once commanded top-tier compensation, faced a far more uncertain future.

In response, the old open-compensation system was progressively closed, and compensation decisions were increasingly vested in the hands of LeClair and his compensation committee. Per Nagle, “we went from a real meritocracy, where compensation was based on full disclosure of numbers, to a system that, by the time I left, had evolved where there was very little input from anyone beyond the core leadership group, and there was very little tolerance for dissent or desire for disclosure.”

With decisions now made behind closed doors, the mutual trust LeClairRyan was built on started to erode. A perception began to arise that LeClair and his favored lieutenants were keeping their salaries buoyed by the profits of more productive partners. Not only did the move toward a functionally closed system make lawyers, who are skeptical by nature, concerned about what was happening with compensation, but it seems that it contributed to driving away lawyers and practices that were profit centers for the firm. When rainmakers don’t see the benefits of their own hard work and growth, they become poised to leave for a new firm more willing to pay them what they’re worth. LeClairRyan found itself vulnerable to the same poaching of profitable attorneys it had been so successful at just a few years earlier.

The Band-Aid of Growth

Rather than make the hard choices such as cutting unproductive partners’ salaries (or his own), LeClair instead made a play for growth. In the short term, the plan was to take in existing practices, bringing in new profit centers to shore up declining profits elsewhere. In the long term, the hope was to expand the firm’s national footprint and top-line numbers to entice a fat corporate buyout once state bars began to allow non-attorney ownership of law firms.

The long-term plan fizzled when the predicted sea change in legal ethics rules never came to pass. But the short-term effects of this rapid expansion were also more detrimental than helpful. LeClairRyan expanded aggressively, bringing in small practices with questionable profitability on guaranteed, multi-year salary contracts. Small offices are notoriously expensive, and rarely benefit from the economies of scale that larger law firm satellites enjoy. LeClairRyan’s top line kept expanding, as did Gary LeClair’s empire, but expenses kept pace, and in some cases exceeded the new revenue brought in.

In the last few years, it appears LeClairRyan found itself chasing endless cash infusions to cover the losses its prior decisions had wrought. The ill-fated preferred stock plan, discussed in my last column, kept funds flowing for a while on the promise of a big payout once the firm was bought out. LeClairRyan received a $20M cash injection when it announced its partnership with alternative legal services provider UnitedLex, which I profiled previously. That partnership is now listed as being owed $8M plus interest in LeClairRyan’s bankruptcy schedules.

I don’t believe Gary LeClair set out with anything but the best of intentions in mind. But by the end of the road, LeClairRyan stumbled into being both the perpetrator and the victim of an inadvertent Ponzi scheme. It made bad decisions that cut into its profits, and so made more bad decisions to bring in new sources of funding to cover the shortfall. Then it needed more funding to replace the new funding it brought in, and on, and on, until the company had grown itself into a sudden and thunderous collapse.

Why This Matters

These past few pieces have been close to my heart. I manage a law firm that, up until a few weeks ago, I would have considered a peer of LeClairRyan. I needed to understand why and how such a seemingly forward-thinking firm, one that in some respects seemed to be a model of the forward thinking and experimentation that I champion, could go so wrong so quickly.

While we’ve only gotten a glimpse of the problems LeClairRyan faced, it’s apparent now that their biggest enemy was ignoring an unsustainable present by hoping for a possible future. A firm that doesn’t compensate and retain its dollar-producing partners isn’t going to last. Accurately valuing and pricing the contributions, both monetary and intangible, of each partner is more crucial than ever in a legal market poised for further contraction and more ruthless competition. Similarly, a firm needs confidence in the good faith of its leadership, and leaders need to earn that over time. A partnership needs to know that its leaders will make the tough choices — even when those choices are unpopular or difficult. Some decisions have to be made behind closed doors. When those decisions spawn fear and skepticism, rather than trust, nothing good can or will follow.

LeClairRyan forgot the lessons it built itself on, and died as a result. The only question remaining is how many of us left behind will learn from this collapse, and how many will continue marching proudly toward catastrophe.

James Goodnow

James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

* “I like sex. Sex is fun and I can get paid for it. You can make a job out of this? That’s fantastic.” Sears said. “Why would I not do this?” Of course we’ve heard about the lawyer who’s also working as a prostitute. We’ll have more on this incredibly interesting story later today. [KCCI Des Moines]

* Will 2019 be a year without a blockbuster Biglaw merger? With the A&O/O’Melveny combo off the table, it could be. “There were so many mergers the last couple of years that we are seeing a slowdown.” [American Lawyer]

* Lawyers for Paul Manafort are trying to get a mortgage fraud case against him in New York dismissed, citing double jeopardy law. He doesn’t want to have to do more jail time, even if Trump pardons him. [Reuters]

* Lawyer staffing company Axiom will no longer be pursuing an IPO thanks to an infusion of cash from private equity firm Permira Funds. It would have been one of the first publicly traded legal businesses in the country. [Big Law Business]

* Remember the Jussie Smollett controversy where the actor claimed he was involved in a racist and homophobic attack? His lawyers say he shouldn’t have to pay Chicago six figures for the investigation into the hoax because how was he supposed to know so much time would be spent on it. [ABC 7 Chicago]

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

But the hope that accompanied independence in 1980 dissolved into violence, corruption and economic disaster.

President Mugabe became an outspoken critic of the West, most notably the United Kingdom, the former colonial power, which he denounced as an “enemy country”.

Despite his brutal treatment of political opponents, and his economic mismanagement of a once prosperous country, he continued to attract the support of other African leaders who saw him as a hero of the fight against colonial rule.

Robert Gabriel Mugabe was born in what was then Rhodesia on 21 February 1924, the son of a carpenter and one of the majority Shona-speaking people in a country then run by the white minority. Educated at Roman Catholic mission schools, he qualified as a teacher.

Winning a scholarship to Fort Hare University in South Africa, he took the first of his seven academic degrees before teaching in Ghana, where he was greatly influenced by the pan-Africanist ideas of Ghana’s post-independence leader Kwame Nkrumah. His first wife Sally was Ghanaian.

In 1960, Mugabe returned to Rhodesia. At first he worked for the African nationalist cause with Joshua Nkomo, before breaking away to become a founder member of the Zimbabwe African National Union (Zanu).

In 1964, after making a speech in which he called Rhodesian Prime Minister Ian Smith and his government “cowboys”, Mugabe was arrested and detained without trial for a decade.

Mugabe (l) with Nkomo (r) in 1960. The relationship between the two would sour after independence

His baby son died while he was still in prison and he was refused permission to attend the funeral.

In 1973, while still in detention, he was chosen as president of Zanu. After his release, he went to Mozambique and directed guerrilla raids into Rhodesia. His Zanu organisation formed a loose alliance with Nkomo’s Zimbabwe African People’s Union (Zapu).

During the tortuous negotiations on independence for Rhodesia, he was seen as the most militant of the black leaders, and the most uncompromising in his demands.

On a 1976 visit to London, he declared that the only solution to the Rhodesian problem would come out of the barrel of a gun.

Conciliatory

But his negotiating skills earned him the respect of many of his former critics. The press hailed him as “the thinking man’s guerrilla”.

The Lancaster House agreement of 1979 set up a constitution for the new Republic of Zimbabwe, as Rhodesia was to be called, and set February 1980 for the first elections which would be open to the black majority.

Fighting the election on a separate platform from Nkomo, Mugabe scored an overwhelming and, to most outside observers, unexpected victory. Zanu secured a comfortable majority, although the polls were marred by accusations of vote-rigging and intimidation from both sides

A self-confessed Marxist, Mugabe’s victory initially had many white people packing their bags ready to leave Rhodesia, while his supporters danced in the streets.

However, the moderate, conciliatory tone of his early statements reassured many of his opponents. He promised a broad-based government, with no victimisation and no nationalisation of private property. His theme, he told them, would be reconciliation.

He initially promised a programme of reconciliation

Later that year he outlined his economic policy, which mixed private enterprise with public investment.

He launched a programme to massively expand access to healthcare and education for black Zimbabweans, who had been marginalised under white-minority rule.

With the prime minister frequently advocating one-party rule, the rift between Mugabe and Nkomo widened.

After the discovery of a huge cache of arms at Zapu-owned properties, Nkomo, recently demoted in a cabinet reshuffle, was dismissed from government.

While paying lip service to democracy, Mugabe gradually stifled political opposition. The mid-1980s saw the massacre of thousands of ethnic Ndebeles seen as Nkomo’s supporters in his home region of Matabeleland.

Confiscation

Mugabe was implicated in the killings, committed by the Zimbabwean army’s North Korean-trained 5th Brigade, but never brought to trial.

Under intense pressure, Nkomo agreed for his Zapu to be merged with – or taken over by – Zanu to become the virtually unchallenged Zanu-PF.

After abolishing the office of prime minister, Mugabe became president in 1987 and was elected for a third term in 1996.

The same year, he married Grace Marufu, after his first wife had died from cancer. Mugabe already had two children with Grace, 40 years his junior. A third was born when the president was 73.

Farms were occupied by Zanu-PF supporters

He did have some success in building a non-racial society, but in 1992 introduced the Land Acquisition Act, permitting the confiscation of land without appeal.

The plan was to redistribute land at the expense of more than 4,500 white farmers, who still owned the bulk of the country’s best land.

In early 2000, with his presidency under serious threat from the newly formed Movement for Democratic Change (MDC), led by former trade union leader Morgan Tsvangirai, Mugabe lashed out against the farmers, seen as MDC backers.

His supporters, the so-called “war veterans”, occupied white-owned farms and a number of farmers and their black workers were killed.

Foreign aid

The action served to undermine the already battered economy as Zimbabwe’s once valuable agricultural industry fell into ruin. Mugabe’s critics accused him of distributing farms to his cronies, rather than the intended rural poor.

Robert Mugabe – key dates

1924: Born. Later trains as a teacher

1964: Imprisoned by Rhodesian government

1980: Wins post-independence elections

1996: Marries Grace Marufu

2000: Loses referendum, pro-Mugabe militias invade white-owned farms and attack opposition supporters

2008: Comes second in first round of elections to Tsvangirai who pulls out of run-off amid nationwide attacks on his supporters

2009: Amid economic collapse, swears in Tsvangirai as prime minister, who serves in uneasy government of national unity for four years

2017: Sacks long-time ally Vice-President Emmerson Mnangagwa, paving the way for his wife Grace to succeed him

November 2017: Army intervenes and forces him to step down

Zimbabwe moved rapidly from being one of Africa’s biggest food producers to having to rely on foreign aid to feed its population.

In the 2000 elections for the House of Assembly, the MDC won 57 out of the 120 seats elected by popular vote, although a further 20 seats were filled by Mugabe’s nominees, securing Zanu-PF’s hold on power.

Two years later, in the presidential elections, Mugabe achieved 56.2% of the vote compared with Mr Tsvangirai’s 41.9% against a background of intimidation of MDC supporters. Large numbers of people in rural areas were prevented from voting by the closure of polling stations.

MDC activists were attacked around the country in 2008

With the MDC, the US, UK and the European Union not recognising the election result because of the violence and allegations of fraud, Mugabe – and Zimbabwe – became increasingly isolated.

The Commonwealth also suspended Zimbabwe from participating in its meetings until it improved its record as a democracy.

In May 2005, Mugabe presided over Operation Restore Order, a crackdown on the black market and what was said to be “general lawlessness”.

Some 30,000 street vendors were arrested and whole shanty towns demolished, eventually leaving an estimated 700,000 Zimbabweans homeless.

Squabbling

In March 2008, Mugabe lost the first round of the presidential elections but won the run-off in June after Mr Tsvangirai pulled out.

In the wake of sustained attacks against his supporters across the country, Mr Tsvangirai maintained that a free and fair election was not possible.

Zimbabwe’s economic decline accelerated, with inflation rates reaching stratospheric levels.

After hundreds of people died from cholera, partly because the government could not afford to import water treatment chemicals, Mugabe agreed to negotiate with his long-time rival about sharing power.

Image copyrightGETTY IMAGESImage captionThe power-sharing agreement was undermined by arguments

After months of talks, in February 2009 Mugabe swore in Mr Tsvangirai as prime minister.

It came as no surprise that the arrangement was far from perfect, with constant squabbling and accusations by some human rights organisations that Mugabe’s political opponents were still being detained and tortured.

Mr Tsvangirai’s reputation also suffered by his association with the Mugabe regime, despite the fact that he had no influence over the increasingly irascible president.

The 2013 election, in which Mugabe won 61% of the vote, ended the power-sharing agreement and Mr Tsvangirai went into the political wilderness.

While there were the usual accusations of electoral fraud – UN Secretary-General Ban Ki-moon asked that these be investigated – there was not the widespread violence that had marked previous polls in Zimbabwe.

Successors

It was an election that saw Robert Mugabe, at the age of 89, confirm his position as the undisputed power in the country.

His advancing years, and increasing health problems, saw much speculation as to who might replace him.

But the manoeuvring among possible successors revealed how fragmented Zimbabwe’s administration was and underlined the fact that it was only held together by Mugabe’s dominance.

Mugabe himself seemed to delight in playing off his subordinates against each other in a deliberate attempt to dilute whatever opposition might arise.

With speculation that his wife, Grace, was poised to take control in the event of his death in office, Mugabe announced in 2015 that he fully intended to fight the 2018 elections, by which time he would be 94.

Image copyrightAFPImage captionHe was the undisputed power in Zimbabwe

And, to allay any doubt remaining among possible successors, he announced in February 2016 that he would remain in power “until God says ‘come’”.

In the event it wasn’t God but units of the Zimbabwe National Army which came for Robert Mugabe. On 15 November 2017 he was placed under house arrest and, four days later, replaced as the leader of Zanu-PF by his former vice-president, Emmerson Mnangagwa.

Defiant to the end Mugabe refused to resign, But, on 21 November, as a motion to impeach him was being debated in the Zimbabwean parliament, the speaker of the House of Assembly announced that Robert Mugabe had finally resigned.

Mugabe negotiated a deal which protected him and his family from the risk of future prosecution and enabled him to retain his various business interests. He was also granted a house, servants, vehicles and full diplomatic status.

Ascetic in manner, Robert Mugabe dressed conservatively and drank no alcohol. He viewed both friend and foe with a scepticism verging on the paranoid.

The man who had been hailed as the hero of Africa’s struggle to throw off colonialism had turned into a tyrant, trampling over human rights and turning a once prosperous country into an economic basket case.

His legacy is likely to haunt Zimbabwe for years.

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Robert Mugabe will not be remembered as the freedom fighter who helped liberate Zimbabwe, but as a man who whose 40 years in power was anything but admirable, writes Melusi Nkomo.

In the future, when history is written about Robert Mugabe, it will not be about a black man raised by a single mother, who defied all odds in racially segregated Southern Rhodesia to pursue an education at the highest level.

Neither will it be a history of an articulate black African teacher turned politician who spent around a decade in prison for challenging white colonial racism and working for the betterment of black Zimbabweans.

It will be about the four decades that Robert Mugabe was at the helm of power in post-colonial Zimbabwe, in which his rule was anything but admirable.

As a young politician in the late 1950s and early 1960s, Mugabe was by no means the most prominent of black nationalists who were fighting white colonial rule. Neither was he the most motivated. He was, however, the most eloquent, if not sophisticated.

For a clique of educated black elites, whose political and societal outlook was fashioned in mission schools, Mugabe was the man of choice to convey the message to white rulers – in voice and comportment – that blacks were no longer “uncivilised tribesmen”. They were sophisticated enough to deserve the franchise. In everyday manners and air, Mugabe was an “English man” who spoke their language in the shapely tone of an eloquent and “cultured” gentleman.

It is no wonder that when he arrived on the nascent nationalist scene, fellow nationalists noticed his gift of the gab and he was assigned the job of publicity secretary in their organisation, the National Democratic Party (NDP).

Then, Mugabe had come back home, presumably for holidays, from Ghana where worked as a teacher, with the intention to go back to West Africa. He may never have wanted to stay in Rhodesia for long. His entry into national politics, it seems, was made of anything but personal resolve. He became the reluctant latecomer who went on to dominate Zimbabwean politics for almost half a century.

Much of what people from outside Zimbabwe know about Mugabe started on April 18, 1980, when the colonial tether on Zimbabwe snapped, and the country gained independence from Britain. The popular story is that Mugabe, as a Marxist revolutionary, ushered in a new era of liberation and social progress, exemplified by the early enthusiasm in expanding the education and health delivery system for black people.

Even that narrative is misleading. Mugabe was neither a socialist nor a revolutionary.

When juxtaposed with other African post-independent social and political revolutionaries – Julius Nyerere, Kwame Nkrumah, Kenneth Kaunda, among other luminaries — Mugabe makes for an awkward comparison. For his time in Ghana, he indeed learnt very little from Nkrumah’s quest for a holistic social transformation backed by strong ideological convictions. Mugabe was a rebel, however one who wanted to replace white rulers for a self-interested political project. He tactfully did so, but not without copious doses of Machiavellism, if not outright wickedness.

He hated revolutionary talk, the same way he hated revolutionary garb. When he “talked revolutions”, it was expedient for his narrow political ascendancy to life presidency. When he donned revolutionary garb (even then, very briefly in the early 1980s for picture poses), he always unseemly added a tie to a safari suit. That is the furthest that he went. One could easily separate a nerdy Mugabe, socially distancing himself from his “less sophisticated”, but hands-on, peers who did not mind getting their hands dirty leading ideologically abutted socialist programmes.

A story is often told that Mugabe was quick to express his displeasure at the invitation of Bob Marley to perform at the Independence celebrations in 1980. It’s said he had wanted a pianist, preferably British, possibly Cliff Richard. Mugabe never hid his disdain for pot-smoking and dreadlocked black men, he instead marvelled at European classical musicians, especially Beethoven. I may sound like someone majoring on the minors.

As an intellectual, Mugabe was never a serious one, unlike his peers, Nyerere and Kaunda. His idea of intellectualism was confined to the uninspiring accumulation of certificates, academic or otherwise. His much-vaunted “seven university degrees”, many achieved through correspondence, were a testimony to this.

A cursory Google search of his “works” shows one collection of his speeches titled Neither our war of liberation: Speeches, articles, interviews, 1976-1979, but nothing intellectually intriguing.

His politics, therefore, lacked ideological robustness and many of his party and national programmes were not designed to outlive him. For that reason, he loathed any discussion about succession, and was violent to anyone posing any kind of threat to him as the Oberführer of the killing machine that his party, ZANU-PF, turned out to be.

It is easy to point out the expansion of social programmes, such as the education system and health services during the independence euphoria of the 1980s, as an example of Mugabe’s commitment to black people and socialism.

But people are usually quick to forget that throughout the 1980s, and with “Britain’s wilful blindness”, now we know, Mugabe sought to create a one-party dictatorship in the mould of the Kims’ North Korea.

He, in fact, invited North Korean military supervisors to help him create a private army brigade that hounded the opposition and committed one of the worst atrocities against African people in independent Africa. In the end, an estimated 20 000 civilians, most of them isiNdebele-speaking black men, women and children, lay dead in unmarked mass graves.

He thus had a bizarre “populism” that relied on force rather than the support of the masses. It was expedient for a self-interested political ambition but simply unsustainable. It began tottering from the 1990s onwards.

Faced with a fast-changing global political economy and louder demands for change at home, Mugabe’s “socialism” was exposed as a clumsy fraud that it was. Western donors who had footed part of his bills started isolating him, corruption in his government sprouted. The perceived glories of the 1980s went down the drain and with them went the social programmes.

Epidemic after epidemic also exposed the weak foundations of the healthcare delivery system; from HIV and Aids in the late 1990s, to cholera and typhoid in the 2000s.

Educated Zimbabweans hopped in desperation from one country to another, carrying wads of certificates that usually gave them minimum wage jobs if not “bullshit jobs”.

The Mugabe era education system specifically, was bad for the country. With it, he stifled critical minds and killed innovation. Schools taught people to cram for examinations and follow instructions down to a tee.

The most famous teacher in the village or township was one who whacked the hell out of children for failing a test. Most schools were a mirror image of Mugabe’s political modus operandi; whacking dissenters and ruling the country with a huge stick in hand.

Decidedly, in such school pupils passed with high grades, but out of fear. Fear of the teachers’ reprisals or in the case of college students, fear of being left behind when others got enough “qualifications” to skip the border after graduation.

Mugabe, a teacher trained in the 1940s and 1950s, when blacks weren’t expected or allowed to think critically, managed to oil and expand what his Rhodesian predecessors had left behind.

He flaunted this education system whenever he got the chance. It churned out a politically compliant population that loved instruction manuals and textbooks. Individuals recited what they memorised under the watch of an angry teacher – and ended up doing it with glee. That of course, was sometimes seen as a “sign of intelligence” among Zimbabweans.

In the early 2000s when I enrolled at the University of Zimbabwe, the campus was severely intimidated. Criticisms of the president and the ruling party were sporadic and minimal. Student activists and professors were cowed and afraid. Undoubtedly, some of the student activists were angered by the Mugabe regime, but a fair share, I suppose, took activism as an opportunity to, occasionally, get a decent meal, a T-shirt and an allowance at some NGO-organised students’ workshop. Or quite strategically, for a few, to find the easiest way out of the country through a “persecuted students” scholarship.

And I don’t blame them. Everyone was leaving, the country was on its knees, even government ministers’ children were scarpering.

Those who managed to skip the border to escape the hellhole that our country had become, made for lovely, smiling and articulate butlers and waiters that attended to tourists in places like Dubai and Cape Town.

Zimbabweans could, of course, read and cram the menu, enough to explain food recipes to visitors in impeccable English. They also made for the best implementers of NGO projects – whether or not they believed in their employers’ philosophies (most of the times we didn’t). They became the best foremen and machine operators on farms in South Africa’s Limpopo and Mpumalanga provinces – because they could read and follow instructions on seed and pesticide packages.

Most never uttered any criticism, come rain come sunshine. Sadly that “culture” extended to politics of our nation. And Robert Mugabe knew that.

** Melusi Nkomo has a PhD from the Graduate Institute Geneva (Switzerland) and is a former fellow at the Center for African Studies at Harvard University.

** This was first published on Africa Is A Country in November 2017 and is published under a common creative licence.

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