By David Coltart
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 — 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.
— The Age, Australia.