As a young lawyer fresh from law school, whenever I encountered a problem my first instinct was to consult the law to see what it said regarding that challenge. Law school had given me the impression that the law had an answer to everything, well, a lot of things, anyway. The idea that the law must have a solution to every problem and if not, then a law must be enacted to take care of it was a strong influence. As a teacher of law, I often see the same type of thinking in my students. Unsurprisingly, the recommendations chapter of many a law essay or dissertation is often filled with numerous propositions on how the law can be reformed to solve identified problems. There is little appreciation of the fact that solutions to identified problems may in fact, lie in other fields, far away from the law.
I’m a little older now, with some experience and having read a bit more than when I was a fresh-faced rookie from law school. I have travelled and seen how the law works in my country and in other countries. I appreciate its limits more than I did twenty years ago. I have interacted with and listened to scholars and professionals from other disciplines and realised that some of the challenges to which we prescribe legal solutions are in fact better dealt with using different tools and techniques outside the domain of law. Certainly, my elevated view of the law has gradually diminished over time.
This does not mean the law is less important than it was back then. On the contrary, the importance of law and the rule of law cannot be overstated. It is just a realisation that some challenges require different approaches. After all, the law itself is a human construct. It can and does fail sometimes. It can change and is changed many times, to suit human desires, usually the desires of the powerful. In any event, society’s challenges come in various guises – some are political, others are social, and others are of an economic character. The law is helpful, but sometimes, it is better to look to other disciplines and fields of human endeavour.
This realisation of law’s limits is important. These days, more often than not, lawyers work in collaboration with professionals from other disciplines. They borrow and use tools from other disciplines in their research. While regulation is often presented through the prism of the law, it is now well-known that regulating society can be done in more ways that through law. When a local authority wants to stop homeless people from sleeping on public park benches, it might put up a sign saying, “Do Not Sleep on Park Benches”. But that might seem insensitive and embarrassing. It might even be ignored. The local authority’s purpose will however be achieved by simply installing narrower benches on which is it uncomfortable if not impossible to sleep. The local authority would have solved the problem not by application of any law but by simply using techniques from the field of product design and landscaping.
My interest in the last decade has been around the confluence of law and politics – where the two meet and how one impacts upon the other. With Zimbabwe as a case study, I have been drawn to the manner in which law is an instrument of politics and yet all too often it has also been presented as a solution to political challenges. I have also observed, and participated in legal efforts to challenge injustices and retrogressive political decision-making. This article is therefore a cautionary tale on the limits of law. It highlights the limits of law in political struggles and posits that more investment must be put into political efforts and processes in order to solve Zimbabwe’s perennial political crisis. To put it more bluntly, the political crisis will not be solved through the courts of law, but through political action. The challenges are inherently political and they require political solutions. The challenge is not to win the hearts and minds of judges, but the hearts and minds of the people. The strategic direction of the struggle must focus more on the court of public opinion, rather than restrict it to the court of law.
Law, politics and the liberation struggle
This lesson is not new, certainly not in the short history of Zimbabwe. The early African nationalists in the 1950s and 60s thought the political challenges they were facing could be solved through negotiating spaces with the white minority regime. However, the colonial regime could only offer very limited concessions and balked at the demands for majority rule and associated rights for the black Africans. As most nationalists testify in their personal accounts, in the early 1960s they realised that their demands were not going to be met through the methods they were employing. The initial trades union-based movements gradually transformed into fully-fledged political parties in the early 60s as they began to agitate for greater and more comprehensive political changes. They realised it was necessary to organise politically. Later, when the political route failed to yield results, the nationalists took a more radical approach and adopted the armed struggle. The final outcome achieved at the Lancaster House Constitutional Conference was the result of a combination of struggles on the political, armed and diplomatic fronts.
This metamorphosis of the struggle is best illustrated by the career of Herbert Chitepo, the first black African barrister in the country when he qualified in 1954. Since Salisbury was designated as a white area under the Land Apportionment Act, 1930, a special amendment had to be passed by the government (the Chitepo Amendment) to allow him to open his barrister’s chambers alongside his white colleagues in the city. Chitepo practiced law, often representing arrested and persecuted African nationalists. But even he suffered severe racial treatment at the hands of some judicial authorities. One account records that he was forced by one Native Commissioner to defend his clients while sitting cross-legged on the floor. Chitepo later became one of the most radicalised African nationalists and a chief advocate of the armed struggled. After his stint in Tanzania where he became the country’s first Attorney General after independence, Chitepo moved to Zambia from where he led ZANU’s armed struggle as the party Chairman at a time when most of the leaders were in detention. Chitepo could have had a long and distinguished career as a lawyer, but he realised the limits of law and decided that the political struggle had to be fought politically. Another early nationalist who went through a similar experience was Edson Sithole, the first African to earn a doctorate in law. Sadly, both men died in 1975, Chitepo assassinated in a mysterious circumstances in Lusaka, and Sithole who was abducted and disappeared without trace along with his secretary Miriam Mhlanga.
The history of the struggle demonstrates a realisation that court battles were not enough to win what was essentially a political struggle.
Law, politics and the current struggle
In recent months, this interplay between law and politics has been evident. True to form, faced with citizens’ protests, the government has responded with its array of tricks – arresting protestors, banning protests, restricting social media usage, banning use of the national flag, using violence through the repressive arms of the state, etc. In return, citizens have challenged the legality of the government’s actions in the courts of law. When the government announced the introduction of bond notes, there were protests by citizens but there was also a lawsuit challenging the legality of the bond notes. When the government issued a threat and warning against use of the national flag in protests, the legality of this move was challenged. When government banned demonstrations in central Harare, this move was also challenged in court. When protestors were arrested during demonstrations, naturally, legal challenges were made to secure their release. By far the response of the opposition and civil society to the government’s repressive measures has been overwhelmingly legal, rather than political.
These legal challenges are an important part of the struggle against a repressive state. However, while legal challenges are essential in the case of arrested persons, it is important not to lose sight of the fact that they are only some of the trees in a vast forest of potential solutions to the problem. It is important not to be consumed by the pursuit of legal solutions to what are essentially political challenges requiring political solutions. The ruling party is using the law in order to make political statements. While there is need for a legal response, it is important not to lose sight of the political aspect of the measures.
Uneven ground
The greatest problem with the legal route is that matters are placed in the province of the courts, which may be compromised. In a normal country, this would be most ideal, as courts are generally regarded and often act as neutral arbiters of disputes between parties. The position is completely different, however, where courts are compromised and judges lack independence. In a jurisdiction where the judiciary is captured by the ruling party, taking political matters to the courts amounts to asking the ruling party to rule in its own cause. In most cases, this is an exercise in futility. With a few exceptions, the performance of the Zimbabwean judiciary in political matters has left a lot to be desired, giving the impression that it lacks independence.
The situation is made worse by a generally hostile relationship between the opposition parties and the judiciary. During the constitution-making process, it was not a secret that the opposition parties and civil society wanted a complete overhaul of the judiciary because they did not believe it was independent of ZANU PF. The judges and ZANU PF resisted this. The opposition failed to achieve the reforms it wanted, banking on winning the 2013 elections, after which they would bring in reforms. The loss of the 2013 elections left the opposition in a quandary. It had to face a Constitutional Court whose judges they had openly sought to remove and replace. There is no love lost between the two and it is naïve for the opposition to expect a sympathetic ear from the same judges. This is partly why the presidential election petition after the 2013 elections was a futile exercise. Tsvangirai and the MDC-T were never going to get a fair hearing from the Constitutional Court, whatever the merits of their case against the elections.
It is true that some judges of the High Court have been progressive, issuing remarkably bold judgments in defence of fundamental rights, and against the government, but they are by far in the minority. The positive decisions are the exceptions rather than the norm. One judge who has been a consistent beacon of light is Justice Nicholas Mathonsi, one of the younger generation of judges who has even earned praise from the Chief Justice on account of his evidently impressive performance at the High Court. In recent weeks, he issued a positive judgment, holding that there was nothing wrong with citizens using social media to mobilize in order to exercise their right to demonstrate peacefully.
However, such bold decision-making does come at a price, as the treatment of another judge, Justice Priscilla Chigumba during interviews for Supreme Court vacancies demonstrates. Justice Chigumba faced unusually hostile questioning from the Judicial Services Commission (JSC) during her interview, as the interviewers enquired into an alleged case of bribery against her. It was highly improper for the JSC to put Justice Chigumba on trial during a public interview, when there are proper channels to investigate such a serious matter. In effect, the judge was being asked by her superiors in a job interview to answer a criminal allegation without the benefit of due process, itself one of the cardinal rights enshrined in the Constitution. If Justice Chigumba has a case of impropriety to answer, there are proper channels to bring her to account. These channels are written in the Constitution and they do not by any account include a job interview where she cannot call upon legal representation or even exercise the right to silence or even the right against self-incrimination without jeopardising her job prospects. It was patently unfair and improper for the JSC to raise such issues in that forum. But they did. Naturally, most observers have interpreted Justice Chigumba’s treatment as harsh and probably having a link to a recent decision in which she ruled against the government and made bold comments in defence of judicial independence. She invalidated a police ban against demonstrations in central Harare, a decision which was hailed by citizens. Observers believe she is being punished for that decision and that her humiliating treatment is being used as an example to other judges who might be inclined to behave in similar fashion. The conduct of the JSC does not do it any favours in the court of public opinion. It lends credence to long-held suspicions that the upper echelons of the judiciary are subject to capture by the ruling party.
Judicial rulings in favour of the opposition are also a double-edged sword. In the first place, they are hailed by the opposition as a blow against the government and a show of judicial bravery in the face of executive hostility. On the other hand, such judgments are hailed by the repressive regime as a show of judicial independence. The regime argues that such decisions show that the Zimbabwean judiciary is independent and that the executive does not interfere. The government propaganda machine uses those judgments, which are rare, as indications of judicial freedom. Therefore, positive rulings from the judiciary are to be viewed with caution. They are not to be over-celebrated as they are not representative of the state of the judiciary. No doubt brave judges who refuse to toe the line must be commended and encouraged, but they are by no means the saviours in the political struggle.
Reluctance to deal with the “political”
Another problem is that courts are generally reluctant to deal with what are essentially political issues. The Land Question was as much a legal issue as it was political. Up until the Gubbay bench, the Supreme Court handled the issue in purely legal terms – invoking the existing legal rules, which generally protected the rights of white landowners against expropriation of land. Thereafter, when the Chidyausiku bench took over, it decided that this was a political matter which needed a political solution. While they delivered legal judgments, it was clear that the judiciary sought to wash its hands off the land issue and leave it to the politicians.
Presidential election petitions have been victims of the same approach, with the courts deferring to the politics. During the constitution-writing process, much was made of the new procedure for presidential election petitions. We designed provisions with the intention of creating a quick, efficient and fair system of resolving presidential election disputes. However, it was plain that the success of the system depended on the existence of independent judges. However, even so, with hindsight, I think the emphasis on this procedure was based on a misdirected assumption that judges could actually overturn the outcome of an election – essentially a political decision.
As already pointed out, it was clear in 2013 that Tsvangirai and the MDC-T would not get a fair hearing before a judiciary which they had fought to remove and replace during the constitution-making process. Once the opposition had succumbed to the retention of the judiciary during the constitution-making process, they had also closed the door to any fair hearing in the future. Their only hope was to win elections and thereafter lead a transformation of the bench. A quick survey of presidential election petitions in the region is a depressing sight. Apart from Zimbabwe, Ghana, Uganda, Kenya, Zambia and most recently Gabon presidential election petitions have yielded nothing. It will take something extraordinary for courts to overturn a presidential election result. If anything, that route has become a useful tool for ruling parties to seek confirmation of their legitimacy by getting a ruling from the Constitutional Court either dismissing the challenge or ruling that the election was free and fair.
Bond notes case
This is what the Constitutional Court appears to have done on the bond notes case brought by ZimPF President, Joice Mujuru. Mujuru challenged the proposed introduction of bond notes by the Reserve Bank of Zimbabwe. When the matter was argued before the Constitutional Court on 28 September 2016, it was dismissed on the grounds that it was premature and that as the bond notes were still to be introduced, the case was speculative. This reasoning is at odds with section 85(1) of the Constitution which permits legal action to be taken where a person believes his/her rights are likely to be infringed. This position was reaffirmed by the same court in the case of Jealousy Mawarire v Mugabe and others (2013), in which Mawarire argued that failure by the President to promulgate election dates posed a threat to his rights. Chief Justice Chidyausiku boldly stated that the Court does not expect an applicant to have already suffered rights and that where he is likely to suffer a violation of rights, the Court would accept jurisdiction. “Certainly, this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. The Court will entertain even those who calmly perceive looking infringement and issued a declaration or appropriate order to stave the threat …” wrote the Chief Justice.
However, in a move that appears to disregard these words and the Mawarire precedent, the Constitutional Court dismissed the bond notes application. The fact that there is no law authorising bond notes is precisely why the legality of the bond notes was being challenged. The Court was supposed to make a ruling of illegality on that basis, but instead, it chose to dismiss the application rather than confront the illegality of bond notes. What the Constitutional Court does not say is that it simply avoided dealing with a difficult political and economic issue.
Devolution case
This avoidance of political issues is now a familiar pattern. When former MDC-T legislator and Minister Sam Sipepa Nkomo brought a constitutional application challenging government’s failure to implement the devolution provisions of the Constitution, his case was also dismissed. This was notwithstanding the fact that in principle his argument was no different from the argument that had been advanced by Mawarire, namely that the President’s failure to comply with the Constitution was violating the Constitution and his rights. The Court allowed Mawarire’s case on elections to be heard but refused to hear Sipepa Nkomo’s argument on devolution. The inconsistency in the application of the rules has no basis at law and can only be explained by the Court’s reluctance to deal with a political issue where the government is clearly at fault. Where the ruling party desires a certain outcome, the Court will readily accept jurisdiction as it did in the Mawarire case, but it will shy away where the government is clearly at fault, as in the devolution case.
Winning while losing: the paradox
A discernible pattern in the courts’ decisions against government is that they are designed in such a way that they do not hurt the government. Instead, they ensure that the government wins while it is losing. There are four cases which provide a stark illustration of this paradoxical phenomenon.
Voters’ Roll case
The first is a 2013 case between the MDC-T and ZEC and the Registrar General of Voters regarding disclosure of the electronic copy of the voters roll. The RGV had failed to deliver the electronic copy of the voters roll as required by the Electoral Law. The MDC took legal action demanding that ZEC and the RGV must honour their legal obligation and deliver the voters roll. In the first case, the judge ordered ZEC and the RGV to provide the voters roll to candidates as required by law. However, when the ZEC and the RGV failed to comply, the applicants went to court again seeking an order to compel them. The matter was heard by Justice Mafusire who once again reaffirmed the order of compliance.
However, in the same order, the judge also gave the RGV a reason to perpetuate his illegal conduct. The RGV had argued that he could not comply with the order because his computer system was broken. The judge’s order deferred to this explanation and made compliance conditional upon the fixing of the RGV’s computer system. This was an easy way for the RGV to avoid compliance as the judge’s order recognised the fact that his computer system was broken. In theory, the applicants had won their case, but in reality the RGV had not lost at all. It was an order which gave the RGV a legitimate justification to avoid compliance with the law. As the RGV did not wish to disclose the voters roll in the first place, this order worked to his advantage. Therefore, far from being a real victory for applicants, the court order had legitimised an illegality. The government had actually won, while it was seemingly losing.
Voter registration case
In 2014, Dumiso Dabengwa and his party, ZAPU took action against ZEC to compel it to register voters in compliance with its constitutional obligations. ZEC was given powers to register voters, to compel and maintain the voters roll by the new Constitution adopted in 2013. These functions previously used to be carried out by the RGV. The matter was handled by Justice Bhunu at the High Court. Justice Bhunu gave an order in favour of the applicants, holding that ZEC had a duty to carry out voter registration on a continuous basis. However, the judge also qualified his order by stating that ZEC had to perform this constitutional duty within the resources available to it. Justice Bhunu wrote, “It is an established principle of our legal system that the law does not compel the impossible. The Commission wiII not be expected to carry out its functions beyond what is feasible within the confines of available resources. It is necessary for this court to issue a mandatory order directing it to do so within the confines of the available resources using the methods in its view best suited for the purpose.”
This essentially gave ZEC a reason to restrict voter registration. It could always state that it could not carry out its constitutional duty because it had no resources and according to Justice Bhunu’s judgment, that would be perfectly legitimate. The effect of the order was to water down the ZEC’s mandatory duty to carry out continuous voter registration. The judge invented a qualification to ZEC’s mandatory constitutional obligation. The Constitution does not qualify ZEC’s peremptory obligation to register voters by making reference to available resources as it does in other provisions. If the framers of the Constitution wanted to qualify ZEC’s duties, they would have done so.
In tying mandatory constitutional duties to the “confines of the available resources”, the court gave ZEC an easy excuse to avoid performing its constitutional obligations. This is precisely what ZEC has done. Three years after the new Constitution was adopted, ZEC has not been registering voters on a continuous basis. ZEC has the comfort of the High Court judgment by Justice Bhunu, which gave the applicants with one hand, but took away with another. Once again the law had given the appearance of victory, but in reality the state had not suffered any defeat at all. The government had actually won, while it was seemingly losing.
Demonstrations ban
At the start of September 2016, the government issued a ban on demonstrations in central Harare. The order was challenged in court on the basis that it was unconstitutional and unlawful. The matter came before Justice Priscilla Chigumba, who agreed with the applicants that the ban was invalid. If the judge had left it there, it would have nullified the ban and allowed citizens to continue with their demonstrations. However, the order given by the judge was qualified. She suspended her order invalidating the statutory instrument for seven working days, giving the government an opportunity to correct the procedural irregularities. This meant that in the interim, although she had declared it invalid, the ban on demonstrations in central Harare would continue to hold for at least another seven days. As the government’s initial ban was for two weeks, the suspension of the invalidation order effectively legitimized the prohibition against demonstrations in central Harare for the period that the government wanted. The judge had invalidated the government ban, but had kept it alive by suspending the invalidation order. The government duly complied with the order, issuing another ban on demonstrations on the same terms but this time extending the ban for 4 weeks.
While the judge’s order was hailed by citizens when it came out, it soon became clear that it was a Pyrrhic victory. The citizens had shown that the ban was unconstitutional and the judge had agreed with them, but she had also kept it alive by suspending her order. The judge’s action was within the terms of the Constitution but it gave the government what it wanted, which was to ban demonstrations in central Harare for two weeks and that is precisely what they got, notwithstanding the fact that the High Court had found the measure to be unconstitutional. The judge had simply designed her order in a way that catered for the interests of both parties – citizens were happy that she had made a bold decision to declare the ban unconstitutional when they least expected it, but the government was also happy that its ban on demonstrations had remained operational notwithstanding the declaration of illegality. Once again, despite seemingly losing, the government had really won because its purpose was achieved. Still however, this careful balancing of interests has not spared Justice Chigumba the wrath of the Establishment, as evidenced by the harsh and unfair treatment she received from the JSC during the Supreme Court interviews.
2008 delay in presidential results
Back in 2008, Justice Tendai Uchena was called upon in the immediate aftermath of the March elections to rule on the issue of the delay in announcing the presidential elections. The law was clear on how vote recounts were done. ZEC was arguing that the delay was due to a vote recount. They could only be requested by a candidate but such a recount could only be done after, not before the announcement of election results. Since results had not been announced, there could not have been a recount as none of the parties would have known the results. The only logical conclusion was that ZANU PF had been advised of the results secretly and had influenced ZEC to perform an illegal recount. Despite finding that there was no ground for a recount before the announcement of results, Justice Uchena went on to invent a rule that ZEC could order a recount when it did not have such power and it had made no such argument in court. That case gave ZEC ground to continue delaying the results, a delay which went on for 6 weeks. Once again, despite the clear legal rules, the court had allowed the government to win while it was losing.
Common thread
The common thread in these selected cases is that where the government is clearly at fault, the courts have interpreted the law in a manner that does not detract from the government’s objectives. Rather, the courts’ decisions have been designed to further the government’s objectives, regardless of illegality. The RGV did not want to provide the electronic copy of the voters roll before the 2013 elections and the Court gave him a legitimate basis to perpetuate the illegality. In the voters’ registration case, ZEC did not want to register voters and the Court also gave it a legitimate basis to perpetuate the illegality. In the case of the demonstrations ban, the police wanted to ban demonstrations in central Harare and despite finding that the ban was invalid, the Court still kept it alive by suspending its order of invalidity. In the presidential results case, the judge allowed ZEC to continue delaying the announcement of elections results, which allowed the gross manipulation of results. In all four cases, the law gave an illusory victory to the applicants but in effect reaffirmed the government’s position and interests. The applicants did not get the electronic voters’ roll, there has been no continuous voter registration and the police got the two week ban they desired. All this notwithstanding the fact that government conduct in each case was found to be unlawful.
What is the point of law?
These cases raise questions over the practical effectiveness of law in essentially political matters. What is the point of the law if it simply takes you back to the status quo? What is the point of relying on the legal route if the courts are reluctant to confront political questions? What is the point of law if the government does not respect it? But more importantly, given the political configuration of the courts, is it not naïve for the opposition forces to place faith in the legal route? Save in a few exceptional cases, the judgments of the courts are almost always predictable. Even where they rule against government, they try to design the judgments in a way that does not hurt government.
The High Court is better because it is diverse and matters are presided over by single judges. If a matter comes before an independent-minded judge, the stock of whom is very limited, there are better prospects of success and a progressive judgment. The Supreme Court and the Constitutional Court which are populated by the same judges decide matters on majority basis and these courts have generally taken a conservative and pro-Establishment approach. The poor quality of jurisprudence at the highest levels of the judiciary is demonstrated by weak and poorly-researched written judgements to which all other judges often simply agree without any substantiated reasoning. There are no reasoned dissenting judgments to show diversity in views on important constitutional issues.
A general assessment of the judgments in recent years demonstrates that the legal arena is very weak ground for the opposition because the critical decision-makers are not impartial or independent. Given a choice between the opposition and government, the judiciary tends to defer to the government. The opposition has very slim chances of success in the legal arena. In any event, it is highly unlikely that the judiciary will be moved to make decisions on political matters. They will either avoid political matters or make rulings that do not hurt the government and the ruling party.
Yet against this bleak and dire background, the opposition and civil society continue to rely on the legal route. Part of the reason is the abiding belief in the rule of law, notwithstanding the reality that it is in serious jeopardy in Zimbabwe. Yet as Professor Lovemore Madhuku has warned in the past, the law often follows the politics, not the other way round. This is evident in Zimbabwe, where legal developments often mirror the political developments, with the Fast Track Land Reform Programme being a key example. The police simply ignored court orders issued by the High Court and the Supreme Court in 2000. The government simply changed the law, which was designed to operate retrospectively, legitimizing the land takeovers which had already taken place. When the matters came before the newly constituted Supreme Court, the new legal developments were confirmed as lawful, legitimizing the illegalities of the past. In those cases, as Madhuku has pointed out, the law followed the politics. The courts made it clear that these were political matters which required political solutions.
What then is to be done?
The point is not to dismiss the legal route, but to demonstrate its limitations and to urge refocus and emphasis on the political route. ZEC’s failure to register voters or the government’s proposal to introduce bond notes and the police ban on demonstrations or the resurgence of rules banning use of the national flag are legal issues but they are, more importantly, also political decisions that must be confronted politically. Likewise, the rigging of elections is a legal issue but more importantly, it is a political issue requiring political pressure. This is political conduct on the part of the ruling party, via the agency of government, and the best response to it is political conduct. There is an elaborate procedure in the Constitution for challenging the outcome of presidential elections, but it is highly unlikely that the courts will ever overturn a result once it’s declared. Yet this is the route that aggrieved parties are expected to take, when it is so obviously an exercise in futility. In such cases, the most appropriate response is for aggrieved parties to defend their vote politically.
Defending the vote politically can take various forms, but actually, Zimbabwe has a recent precedent of a political solution to a political problem. On 27 June 2008, Mugabe was controversially re-elected as leader of the country in what was a one-man race after his rival, Morgan Tsvangirai pulled out before the presidential run-off election on grounds of gross political violence and intimidation against his supporters. Tsvangirai could have gone to court to challenge the legality of Mugabe’s election. Given the configuration of Zimbabwe’s courts, most probably he would have lost, just as he did in 2002, notwithstanding the overwhelming evidence that the election was not free and fair. After all, ZEC, the election supervisor, came to the ridiculous and improbable conclusion that the election had been free and fair, even when the rest of the world and other observers who are normally sympathetic to the Zimbabwean government dismissed it as illegitimate. Tsvangirai did not go to court. This was a political matter which required a political solution. The most important decision had been made before the election, when Tsvangirai withdrew from the race, rendering the whole process illegitimate. That withdrawal was a tactical defence of the vote which he had won in the first round of elections in March. If he had participated in the 27 June elections, he would have undermined his case for challenging the election both legally and politically.
Later, the AU and SADC realized that this was a political crisis which required a political solution. It was futile to ask Tsvangirai to approach the courts for a legal solution, as the laws required. On that occasion the law was effectively suspended and it gave way to politics. The negotiation of the Global Political Agreement and the subsequent Inclusive Government were political processes that were carried out without the need for legal sanction. Instead, Constitutional Amendment No. 19 was swiftly drafted by the political actors, incorporating the political agreement – the GPA – into the Constitution. Thereafter, the Inclusive Government was formed. All this happened without the intervention of the courts. In fact, the whole GPA arrangement is the clearest illustration of the law following the politics. The law followed the political arrangements concocted by the political actors.
What the GPA shows is that it is possible to pursue a political route without being boxed into the traditional channels of the legal route. However, political solutions need conditions that render them possible. The GPA did not just happen because it was planned. Political conditions were created in order to make it happen. Although I have not as yet addressed the notion of the National Transitional Authority (NTA), which has been proposed by some actors, this is something that ought to be taken into account in their deliberations. They are proposing a political solution to a political problem. That it does not fit into the current laws is not the problem, because I already stated generally the law follows the politics. The creation of political conditions for that political instrument is their greatest challenge and most urgent task. However, that is a discussion for another time. For now it suffices to say that while legal challenges matter, political challenges and instruments are the most important.
Conclusion
One of the risks of the rare court victories for the opposition is that they lull them into a false sense of success and progress when real political power and control remain in the hands of ZANU PF. The system occasionally throws sweeteners to give an impression of fairness and hope that the legal route works when in fact it does not deliver any tangible political results. The system knows that the real battles for political power is not in the courts of law but in the court of politics. Legal defats might be an occasional embarrassment, but they know they do not affect their political power. In any event, even if they lose in court, they recover very swiftly , by ignoring unfavaourable judgments or amending the law or by humiliating and persecuting errant judges , reminding the rest of the bench where real power rests.
One of the consequences of law’s dominance in the political field is that the field is dominated by members of the legal profession. It is not a healthy domination as it results in a linear view of political strategy. It marginalizes alternative perspective. My observation is that lawyers have a disproportionate influence on politics and strategy as the rest tend to unnecessarily defer to us. The cost of this is that other perspectives which might yield better results in terms of strategy are marginalized. It is not surprising that even in ZANU PF, politicians are scurrying to acquire qualifications in law, probably believing that it yields advantages to lawyer-politicians. There is a real need for other skills sets to contribute more actively in our politics.
All this is not because I hold a dim view on my profession. No, I do not dismiss the law. It is critical. But perhaps we place too much faith in an institution which the regime has little regard for beyond its own parochialinterests. I must conclude with a quote from the work of a famous American jurist, Justice Learned Hand, who wrote in his famous speech, “The Spirit of Liberty”:
“What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”
I have often returned to this quote on several occasions. To my mind, it is an instructive and cautionary statement on the limits of law in political struggles. Faced by the futility of legal action against an intransigent regime which has no regard for the law except when it works in its favour and a judiciary which will do its best to avoid politically-sensitive cases or will go out of its way to interpret laws in such a way so as to avoid hurting the government, the words of Justice Learned Hand couldn’t be more appropriate. Liberty lies in the hearts and minds of men and women. The struggle is political and its most natural terrain is in the court of politics, not the courts of law. The system knows this too well and the democratic forces must come to terms with it and strategise accordingly.
waMagaisa
