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.