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MDC-s
legal route leads to a dead end: The problem is political
Promise Mkwananzi
November 25, 2010
In the last elections
of this decade 2000, 2002, 2005, the MDC has taken ZANU PF to court.
I do not remember any of those judgments fundamentally providing
a remedy to the MDC. The MDC itself, has repeatedly bemoaned the
lack of independence of the judges, and duly understand how constrained
these judges are in terms of what they can do to administer justice
under the authoritarian framework put in place by ZANU PF. Numerous
other cases provide perspective on the manner in which our courts
have operated especially in light of cases involving not just the
MDC but any other actors who are perceived to be critical of the
Regime. Taking Mugabe to court presents a number of contradictions,
paradoxes and challenges:
The first one
is that ZANU PF will now use this case in the same way they have
sought to use the sanctions to militate against the full implementation
of the GPA.
It is a known fact that ZANU PF has tied progress of the GNU to
the removal of sanctions as their benchmark. What this means is
that ZANU PF will not implement its end of the bargain until the
western countries have removed sanctions. In the example of the
court case opened by the MDC, ZANU PF will simply invoke the doctrine
of "exhaustion of domestic remedies" before SADC can
effectively intervene. This is a very convenient excuse for the
already intransigent SADC bloc. Not that there is much to expect
from SADC anyway, but this is just trying to illustrate how ZANU
PF will manipulate this case to further its own agenda.
The second problem relates to the erosion of the
MDC`s moral high ground. In my view, it is almost a foregone conclusion
that the courts will not make a judgment which is in favor of the
MDC. The case will most probably be delayed in such a manner that
it becomes pointless to have opened it in the first place. For example,
assuming that the GNU would be terminated and new elections held
in June 2011, would this case still be relevant. If the courts would
do the unimaginable and speed up the case but pass a judgment which
is not in favor of the MDC, the MDC can no longer turn around and
say that the they knew that the decision would not be in their favor,
or that the very courts which they approached at their own volition
is unable to deliver justice. The best case scenario is if the court
would actually determine the case in favor of the MDC. Would ZANU
PF comply with the judgment? I have my reservations. This appears
to me to be an endorsement of Mugabe`s courts as credible stations
of remedy, which they clearly are not. That is why Jonathan Moyo
was at pains urging the MDC to go to court if they felt aggrieved
knowing full well that that would be the end of the case as explained
above. The last problem is that this case is a typical case in which
you, for example, report Emmerson Mnangagwa or Robert Mugabe to
the police and expect the police to act. This will not happen, if
anything, you might end up removing your shoes and spending the
night behind bars yourself. There is no viable rule of law system
in Zimbabwe to approach the courts with such a case.
In conclusion,
there is need to draw some lessons from the Kenyan democratic struggles
as led by Raila Odinga. After the 2007
general elections, international observers declared the elections
free and fair, congratulated Mwai Kibaki, packed their bags, check
out of Hilton, Panari and other five star hotels in which they were
observing the elections from and left the country. But Odinga, his
Orange Movement and the people of Kenya would have none of it. During
the ensuing calamity, Odinga was urged to approach the courts if
he felt that the election results had been manipulated. He refused,
retorting that "my court is the people of Kenya". I
have no doubt that the context of Kenya is somewhat different from
that of Zimbabwe, particularly in two ways: one is that unlike in
Zimbabwe, the coercive state machinery conducted themselves and
remained relatively impartial and professional. Secondly, the tribal
dimension of the Kenyan election dispute gave Odinga the advantage
of being able to construct a 'them versus us" scenario.
In this, he manipulated a tribal dynamic in the sense that he could
argue that Kikuyus who have ruled the country since independence
wanted to stay in power for good and distribute resources unfairly,
thus short changing other tribes. This helped him alienate Kibaki
and incite the other aggrieved tribes to unite behind his cause.
The Zimbabwean
case is certainly different; the coercive state machinery is neither
impartial nor professional. They have made threats to crush any
attempts at peaceful demonstrations. Difficult as it is, it is my
contention that the MDC must mobilize the generality of the Zimbabwean
populace to test this threat in the coming elections. I portend
that despite all the difficulties, the MDC will still win the election
next year because ZANU PF is basically finished. What they must
budget for however, is the need to locally initiate a series of
activities which will make it impossible for ZANU PF to govern after
losing elections. I believe that such a process if given due diligence
can be dispatched. Winning the election however is the pre-condition
which will weaken ZANU PF`s arguments for example of overthrowing
the government illegally etc. Such a post-election strategy will
force SADC, AU to act. However, it must be premised on election
victory-which is why it is important for MDC to win the next election.
If the election would be won, the job would be more than half done.
It would need a watertight response immediately after elections
to finish off ZANU PF. The courts-as they are presently constituted
are a mere ZANU PF circus when it comes to political matters. In
spite of the difficulties, Intensive mass mobilization is the only
viable option. There is need for deliberative engagement.
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