The law cannot resolve Zim’s political question

By Luke Tamborinyoka | Sep. 6, 2023 | 6 Min read

Similarly, Zimbabwe’s courts do not administer justice but they do deliver political verdicts that are convenient to Zanu PF, especially on grievous political matters such as presidential election petitions.

AS debate raged over the weekend on whether the Citizens Coalition for Change (CCC) should have gone to court in the matter of the sham election, l was and still remain unconvinced on what would have been achieved by going to the captured courts to seek redress. To assume that Chief Justice Luke Malaba’s bench would have prudently and judiciously dealt with the biggest electoral heist of our time is akin to expecting a mosquito to cure malaria.

It is a public secret that houseflies do not make honey. Similarly, Zimbabwe’s courts do not administer justice but they do deliver political verdicts that are convenient to Zanu PF, especially on grievous political matters such as presidential election petitions.

Put simply, political problems require political solutions. Sometimes we overestimate the utility of the law. More often than not, and this is not personal, most lawyers generally speaking have this penchant of viewing challenges and solutions only through the narrow prism of the law, which law the majority of them mistakenly believe is a cure to all problems and is a profession superior to all others.

It is this needless fixation with and idolisation of the law that has led Justice Priscilla Chigumba’s Zimbabwe Electoral Commission (Zec) to tell us it will not publish V11 forms because there is no law that compels it to do so, even if doing so would greatly enhance transparency, accountability and credibility of electoral processes, traits that are now almost non-existent in the court of public opinion.

Yet there are many things we do in life, not because there is a law which compels us to do so, but because it is either morally correct or it is simply good practice. For example, we often tell our children to greet their elders. Imagine if one day your son told you they would not greet their grandmother because there is no law that compels them to do so, as Zec has suggested.

Or you are a visitor and your hosts suspect that you have stolen something from them, the onus is always on you as the suspect to open and empty all your pockets and your bags to show that you have not pilfered their belongings. You don’t even ask them for a search warrant or tell them that they are not the police but you do so not because any law compels you to act that way but because you simply want to prove your innocence.

So it is not always about the dictates of the law, as Zec seems to suggest. For the law is sometimes trite and inadequate to address the vexing political challenges of the moment. Even the Bible exhorts us to be circumspect about the law. If we are saying God is in it, then we must be aware that even the Holy Book itself went to great lengths in counselling us about the central poverty of the law, which in this case was the only faster way of conferring legitimacy to Mnangagwa’s stolen victory, a move which would have inadvertently dimmed the prospect of regional intervention.

Indeed, if we say God is in it, then it made sense to avoid the courts in this instance. For man is not justified by the works of the law, but by his faith in Christ and the chastity of their cause. For by the works of the law no flesh is ever justified (Galatians 2: 16).

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Our righteousness will only come through a robust diplomatic and political response mainly from the region complemented by ourselves. It does not and did not make any sense to play into Zanu PF’s hands by being used to front the resolution of their legitimacy crisis by petitioning the country's captured courts. Inadvertently, the regime would have run with the script that the apex sovereign court of the land had found the Citizens Coalition for Change case as being without merit, in the process shutting out and disempowering some in the region who may have wished to resolve Zimbabwe’s electoral conundrum politically and diplomatically.

Indeed, we all knew that it was all going to be political gamesmanship playing out in the courts under the guise of justice. But all it would have done was to disempower the region whose observer mission report has unprecedentedly dismissed the poll as a sham. Remember only about four out of 16 Southern African Development Community (Sadc) leaders or 25% have congratulated Mnangagwa so far, which all points to a strong position and consensus within Sadc that this election was a sham.

Going to court was always going to be a charade; a ritual with a predictable outcome. But this is certainly not the time for charades and cheap games.

Forget his congratulatory message, it remains significant that South African President Cyril Ramaphosa snubbed the Zimbabwe Agricultural Show which he was supposed to officially open. Whatever Ramaphosa chooses to do now, it is obvious that in his heart of hearts, he knows the truth that what happened in Zimbabwe on August 23 was a circus masquerading as an election.

We ran the very serious risk as Zimbabweans of losing all that regional momentum that we currently hold by seeking recourse through a captured Judiciary whose judgment was always predictable.

Some are saying it would have helped to go to the courts not necessarily to seek a favourable court verdict, but for purposes of exposing the regime’s shenanigans. But predictably, and because he knew the citizens were coming to the courts not to seek justice, but to expose the regime, I am reliably informed that my namesake the Chief Justice had already taken a position that this time they would not allow a live broadcast of the deliberations. He would not dare embarrass the regime internationally. What this means is that if the whole idea was to expose the regime’s shenanigans to the world, the captured Judiciary had already decided to proscribe the dividend of a live broadcast as well.

The point is once a purported sovereign apex court has ruled on an electoral matter, however subjectively, it was always going to be very difficult for Sadc to interfere without fearing to be seen as jeopardising and interfering in the affairs of a sovereign country, even if Sadc itself justifiably feels it is a regional body to which Zimbabwe has reposed some of its sovereignty by dint of its signature to the regional guidelines on the conduct of free and fair elections, first adopted at Grand Baie in Mauritius in August 2004.

So our salvation and righteousness in this case was never going to come from the Judiciary. The Bible itself showcases the central poverty of the law when it states that if righteousness came through the law, then Christ died in vain (Galatians 2:21).

My point is that there was no reason to seek recourse in the courts, especially in this matter. We should not legitimise these shenanigans through a captured Judiciary which was certainly going to launder this gargantuan electoral heist.

Let them govern with this millstone of illegitimacy hanging around their scarfed necks!

If we truly believe that God is in it, then we must equally truly believe, in accordance with the scriptures in Paul's letter to the Galatians, that our cause and our case will not be justified by the works of the law, but by our faith and the dogged belief in the sanctity and chastity of our cause. For by the works of the law no flesh is ever justified.

In conclusion, it made sense that we refrained from visiting the courtroom in preference of the better choice to let their stink of legitimacy waft around the region and the whole world.

For it is only a comprehensive diplomatic and political solution that must culminate in a fresh and truly free, fair and credible election that will deliver and return this country to the sane streets of legitimacy!

Sometimes it is important to correctly read the situation to see who has the momentum. It is Zanu PF that is desperate hence the heavy bribes it threw around the region, hopefully in vain, to get the endorsement of Mnangagwa's brazenly stolen tenure.

The citizens have the momentum, while kuZanu PF njuga dzakarema (predicament weighs down Zanu PF).

Luke Tamborinyoka is a citizen from Domboshava; a journalist and ardent political scientist by profession. He is also a change champion in the Citizens Coalition for Change. You can interact with him via his Facebook page or on the X handle @ luke_tambo.