The Age, Australia
David Coltart
January 15, 2008
Oppositions should continue to use the rule of law in their struggles.
KENYA’S opposition must challenge disputed election results in the courts if
it wants to strengthen democracy, weaken autocracy and defuse violence. Even
in Zimbabwe this has shown our citizens and the world that there is still
hope for that very foundation of freedom, the rule of law.
Our experience applies wherever elections cannot be trusted and wherever the
rule of law is shaky.
Court proceedings do not have to replace peaceful street action. Martin
Luther King said: “Direct action is not a substitute for work in the court
and the halls of government … Pleading cases before the courts of the land
does not eliminate the necessity for bringing about the mass dramatisation
of injustice in front of a city hall. Indeed, direct action and legal action
complement one another; when skilfully employed, each becomes more
effective.”
Courts are slow and frustrating in any country and are unlikely to remove
the party in power. But cases do have to be filed to demonstrate a
commitment to legitimacy. In Zimbabwe, of the 39 parliamentary election
challenges after the June 2000 election, not one had been concluded by the
end of that term in 2005. The same applied to the 2002 challenge to Robert
Mugabe’s election — his term ends in March this year and that case is
nowhere close to being concluded.
Was going to court a pointless exercise? I do not believe so: through the
systematic presentation of facts before courts over several years we were
able to show all neutral observers that Zanu PF did not enjoy a mandate from
the Zimbabwean people. All this has helped create international pressure
against the Mugabe regime.
The decision to use the courts also underlined our commitment to using
non-violent methods and gave us the undisputed moral high ground domestically and internationally.
We publicised in great detail and in summary what had been filed in court.
We issued press releases. When we obtained judgements, we printed them out
in full and posted them on the internet. Where the judiciary subverted the
legal process, we exposed the judiciary. We converted all paper records into
electronic copies. We persuaded academics to write about the judgements. We
used these papers to lobby diplomats, governments and the UN.
Mugabe expected to steal the election and then wait for the world to forget
about the circumstances. I believe the court proceedings, more than any
other single factor, were responsible for denying him that.
I recognise that the mention of “years” is not encouraging — a very close
election in Kenya seems to have been stolen and, understandably, the
opposition wants to take office now. We understand that: we in the Movement
for Democratic Change should have come into government in June 2000 and are
still waiting. But think of the alternatives — we have seen some of them in
Kenya this past week.
Corrupt regimes do not give way easily, but in Kenya, I do not think that
the opposition’s struggle will be anything like as long as ours has been.
Incumbent President Mwai Kibaki does not have land and race as excuses for
justifying his fraud as Mugabe had. Because of that, Kibaki will not be given
the same amount of slack by African leaders as Mugabe enjoys.
Kenya’s opposition parties must pursue the non-violent route, in all its
facets, because the bad behaviour on both sides during and since the
election damages the image of Kenya and the whole of Africa, damages hope
and damages foreign investment. It perpetuates the notion that Africa is
backward, violent and unsafe. While that may have been true of Africa two
decades ago, it is not true now.
Zimbabwe and Kenya are bad examples but many African countries are now
changing their governments peacefully — in Ghana, Senegal, South Africa,
Namibia, Mozambique, Zambia, Malawi, Botswana, Tanzania and elsewhere in the
past decade. Nigeria had badly flawed elections last year but many rigged
results have been annulled at federal, state and local levels, while new
President Umaru Yar’Adua has faced court to defend himself.
In Zimbabwe and Kenya we have a duty to the rest of Africa to show that when
democracy is under attack, we will remain true to its fundamental
principles. And all democratically elected African leaders have a
responsibility to support those who demonstrate that commitment. Only in
this way can we show the rest of the world that Africa is a safe place in
which to do business.
Kenya’s future can now be defined by hard facts filed in court and published
the world over or by hundreds of innocents killed countrywide.