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Big Saturday Read: Comply or Defy? That is the question

It has been a chaotic and challenging week in Zimbabwe. The country has been in the news again and not for the right reasons. The nightmare has been two decades in the making and there is no respite in sight. Last Friday, the main opposition party wanted to lead demonstrations starting in the capital, Harare. But on the eve of the proposed demonstrations, police authorities issued prohibition orders.

However, the government’s response did not stop there. Already the streets of Harare were teeming with police officers. The response to citizens who had gathered on Friday morning was violent and brutal. These citizens had made their way to the city centre some unaware of the eleventh-hour ban, others hoping the courts would lift the prohibition and allow them to peacefully express themselves.

Once again, images of members of the security services viciously assaulting citizens, including elderly women were beamed across the world, shaming the country and its government. For two decades, the world has become accustomed to Zimbabwe as a trouble spot, where the government violently represses its citizens. But after long-serving ruler Robert Mugabe was ousted in a coup in November 2017, there was some hope that the country would turn a corner. It was misplaced hope.

As in the past, Zimbabwe’s problems are still self-inflicted but avoidable. But also, as in the past, the government likes to find scapegoats. This BSR analyses events of this week and possible implications. What do we learn from the demonstrations and the government’s response? What are the options for the opposition, in light of the impediments it has faced this week? How, in a nutshell, does an opposition respond to a manifestly unjust system propped up by unjust laws and unjust referees? These are fundamental questions which will determine the future course of the opposition’s struggles against authoritarianism and for democracy and better governance.

The demonstrations were called by the opposition party, the MDC. They were to be staggered over several days across the major cities, starting in Harare before proceeding to Bulawayo, Gweru, Masvingo and Mutare. On the eve of the Harare demonstrations, two weeks after getting a notice in terms of the law, the police issued a prohibition order. This pattern of response was repeated in the other cities, banning all demonstrations.

In each case, the MDC approached the courts seeking a reversal of the prohibition orders and on each occasion, the courts ruled in favour of the government. The outcome in each case was predictable, especially after the verdict in respect of the Harare demonstrations. This meant the legal channels for demonstrations were effectively closed. Also, on each occasion, there was a heavy police presence. In Bulawayo, opposition leaders were arrested two days before the proposed demonstrations. The charges were spurious.

An unofficial state of emergency?

We learnt this week that while the freedom to demonstrate peacefully and to present petitions is provided for in the constitution, it has virtually been proscribed by the executive and the referees that are supposed to provide respite are not prepared to rescue these rights. These referees have generally ruled in favour of state power when pitted against individual rights.

While it is accepted that these rights are not absolute, how they were denied and the reasons given by the state were generally spurious and unreasonable. In each case, the prohibition orders were issued at the eleventh hour, giving the organisers barely a chance to prepare a solid challenge or for the courts to make considered decisions. That is why citizens made their way to the city centre on the morning of the demonstrations. The police had ample time to respond to the organisers who would also have had more time to prepare their challenge and organise their supporters. Whatever chaos that ensued on the day of the proposed demonstrations was caused by the police’s unreasonable delays in notifying the MDC. This is why it’s shocking that they arrested the MDC Organising Secretary for allegedly failing to stop the demonstrations.

The fact that the courts accepted those spurious reasons and the eleventh-hour prohibitions suggests that chances of ever being permitted to exercise these rights have become severely limited. It is almost as if the country is operating under an unofficial state of emergency where rights are arbitrarily proscribed at a moment’s notice. A state in which rights to free expression, assembly, demonstrations and petitioning are banned in this manner is synonymous to a state of emergency. These rights constitute the core of political rights which are essential in a democratic society. The blanket bans as witnessed this week adds weight to the view of Zimbabwe as an authoritarian regime.

Rule by law continues ahead of rule of law

The regime of Robert Mugabe was infamous for its habit of relying on the law as a weapon against political opponents and the absence of a substantive rule of law. Instead, it relied on the formal conception of the rule of law, where the government applied unjust laws to deny citizens their rights while still claiming that it was adhering to the rule of law. It was in fact rule by law, which law as an instrument of repression rather than a limitation of governmental power was rights were concerned.

Nothing has changed in this regard and few instances illustrate it more than this recent episode. If you ask the Mnangagwa’s supporters they will tell you that everything was done following the law and therefore it was consistent with the rule of law. The MDC gave notice of the demonstrations to the police in terms of the Public Order and Security Act (POSA). The police used the same law to ban the demonstrations. The MDC went to court and the court rejected their applications to lift the prohibition orders.

Looked at in formal terms, everything was done according to the law. But everyone, even the government, agrees that POSA is an unjust law. That’s why the government is repealing it. The conduct of the police, issuing an order at the eleventh hour is manifestly unreasonable and unfair. Yet the courts saw nothing wrong. Are the referees - police and courts - independent, impartial and fair? The opposition cry foul, arguing that politically the referees are biased in favour of the government.

Therefore, Zimbabwe is back to the old dichotomy between the two conceptions of the rule of law, namely, the formal and substantive conceptions of the rule of law. The substantive conception of the rule of law places a high value on the protection of human rights. On this view, there can be no rule of law when laws violate human rights. The formal conception of the rule of law, on the other hand, has no particular regard for human rights. As long as a law that has been duly passed by Parliament exists, that is enough. On this view, the qualitative aspects of the law’s content and whether it protects human rights is irrelevant.

The formal conception of the rule of law suited the Mugabe regime very well, as it does all authoritarian regimes. Adherents to this conception of the rule of law will argue, as they did under Mugabe, that the Mnangagwa regime is acting perfectly in terms of the rule of law. However, those who believe in the substantive rule of law will counter-argue that there is no rule of law on account of the unjust nature of the laws and human rights violations perpetrated by the State and condoned by the referees.

The case for the formal conception of the rule of law is weakened by the conduct of members of the security services and the failure of the state’s responsibility to protect citizens. The brutal beatings of citizens in Harare shamed the nation. It was clear that the use of force was excessive and disproportionate. It amounted to exacting punishment upon citizens without trial. None of that conduct can be regarded as being in terms of the law.

Likewise, there have been cases of illegal abductions and torture of citizens. The abductions of political activists and artists who are perceived to be critical of the government suggest the assailants were associated with or acting on behalf of the government. In any event, the government which is supposed to prevent such callous behaviour or apprehend culprits has failed to act. All these factors count against government’s claim that it is acting in terms of the rule of law, even the controversial formal conception of the rule of law.

These abductions, torture and assaults are a throwback to the dark days of colonial rule. Back then in the seventies, black nationalist parties fought against state brutality. This is what one erudite nationalist, Edison Zvobgo said in an interview the late seventies:

“We do not wish to create a socio-legal order in the country in which people are petrified; in which people go to bed having barricaded their doors and their windows excuse someone belonging to the Special Branch of the police will break into their houses. This is what we have been fighting against ... Every one of us has had to live scared of the police. How on earth could we create a society which is exactly like that? We don’t want it. We are fed up of it. And this is why we are in this revolution for as long as it’s necessary to abolish this system”

Recent events show that they failed to abolish the system. Instead, they retained and perfected it so that it is more ruthless and more vicious than before. All authoritarian regimes thrive on instilling fear and using violence against citizens. The revolution clearly lost its way, with the post-independence regime mimicking the colonial predecessors.

Self-destruct mode

The episode has also exposed the enduring nature of Zimbabwe’s dichotomous relations with two critical blocks of nations: the SADC nation’s and the West. While the government was deploying apparatuses of repression in Harare, SADC Nations were gathering in Tanzania for a Summit. The regional body totally ignored what was going on in Harare and the plight of citizens and instead issued a Communique calling for the lifting of sanctions and declaring 25 October 2019 as an anti-sanctions day.

Western countries, on the other hand, issued a statement condemning the violation of human rights, the use of disproportionate force and called on the government to hold perpetrators to account and to carry out political reforms. The government’s reaction to the Western ambassadors’ statement was swift, aggressive and belligerent, accusing them of being “contemptuous”. It was back to the old days where the Mugabe regime piled blame on the West and sanctions and he had African allies behind him while the West insisted on political reforms and condemned human rights violations.

It marks one of the defining continuities between the Mugabe and Mnangagwa regimes, despite the latter’s efforts to disassociate and distance itself from the former. The problem for the Mnangagwa regime is that it is desperate for reengagement with the West, knowing it needs a respite from the debt burden and access to finance. China, the so-called all-weather friend has not been forthcoming. The likes of Russia are keen on access to natural resources and influence but they are not prepared to part with any finance to help the regime.

The Minister of Finance Professor Mthuli Ncube was in the papers indicating intentions to get a bailout package from the G7 countries, most of them Western countries. The Zimbabwean government doesn’t have the luxury of dismissing the West or being petulant. It’s the one that needs help and its peers in Africa are only offering moral support. The G7 meeting is this weekend, coming hot on the heels of a tumultuous week in Zimbabwe, during which the government showed its ugly hand of repression. Clearly, the Minister of Finance has his work cut out.

Foreign Affairs Minister S B Moyo wrote in the weekly political journal Foreign Policy suggesting that re-engagement and economic support would promote security sector reform and human rights. He tried to frame the issue of human rights around the emotive land question suggesting that Zimbabwe was paying white farmers compensation for their losses during the land reform programme two decades ago. His Western audience will likely read this as patronising, suggesting that the only human rights the regime thinks they are interested in are land rights of white farmers. It sounds like blackmail: give us support and we will pay compensation to the white farmers, do security sector reforms and promote human rights.

In any event, the idea of placing re-engagement and economic support as conditions for political reforms is unlikely to be well-received. They will simply tell him it’s the other way round: implement political reforms first and the gates to re-engagement and economic support on the debt problem will be opened. These political reforms do not cost money. They simply need political will and commitment. There was absolutely no need for the state to react as violently as it did this week. That conduct was very costly for the regime’s re-engagement efforts and it has no one to blame but itself.

Third force? – shifting responsibility

The violence and the attacks on political activists have shocked many because they defy political and economic sense. A government that is trying to present a decent face to the world would not be expected to behave like that. So why? Who is behind these attacks? The Permanent Secretary of the Ministry of Information and Publicity, which is responsible for state propaganda, Nick Mangwana has previously blamed a shadowy “Third Force” and in another tweet, he blames “black ops” suggesting that there are forces working actively to tarnish the Mnangagwa regime.

Mangwana’s theory is that since these attacks are supposedly of no benefit to Mnangagwa, there must be some other hand which is bent on tarnishing his “local and international prestige” as he calls it. This view is shared by other actors allied to the State, such as Tichaona Zindoga, the Acting Editor of The Herald, the State daily. They cannot possibly believe that their ultimate boss, Mnangagwa would have anything to do with the violations. They both grossly underestimate the capacity of ZANU PF, the party they serve to do the most unreasonable things in the name of power. Whatever worst thing that ZANU PF could do, it will most likely do it, leaving even some of its members perplexed because of its sense-defying nature. The attempt to shift blame is also typical of ZANU PF’s refusal to take responsibility.

However, to the extent that both Mangwana and Zindoga and others of similar mind genuinely hold these thoughts, that there is a third hand, it also reveals the complexities of an authoritarian regime, where oft-times some actors are utterly clueless as to what may be happening in other parts of the regime. Authoritarian systems operate complex systems where oft-times each actor is never sure who is watching who and there’s widespread suspicion all round. These abductions may well be conducted in one pocket of the state, with the rest being completely unaware like the general population. At the end of the day, responsibility goes to the top. The government has a responsibility to protect and unless it concedes that it doesn’t have full control, it is presumed to have responsibility. It cannot blame a shadowy Third Force without also admitting that it has lost control, which is a serious admission of lack of authority.

A more sinister reason is that blaming a Third Force is designed to prepare the ground for more repressive measures by the State. This has happened before, most notably during Gukurahundi when pseudo-dissidents were deployed to commit offences which were then used to deploy the brutal Fifth Brigade, which carried out atrocities in the name of fighting dissident activity. There have already been incidents where State actors have claimed that they have discovered weapons which they ascribe to protestors as justification for issuing prohibition orders to stop demonstrations. Gukurahundi was preceded by the arrest and imprisonment of ZAPU veterans after so-called discoveries of “arms caches” which the government claimed were to be used to overthrow it.

Can banned demonstrations be a success?

For the MDC, the demonstrations were an important moment in the opposition’s long-drawn fight for democracy. It was important to unmask the regime and expose its true colours. The Mnangagwa regime has been keen to sell itself as a complete departure from the Mugabe era. It thought it had covered up the 2018 killing of civilians by the military and that the narrative of the opposition as a violent party was enough to justify its actions in January. There was no need for the regime to issue blanket bans on the demonstrations as it did. It took the bait and swallowed it whole. The additional violence as it used disproportionate force only made things worse.

The regime has shown that it can still command the apparatuses of power and that it can use its monopoly of violence to the ruling party’s benefit. This power drawn from the security structures is still its most potent force, as long as it remains loyal and obedient. However, in terms of reputation, the regime has emerged far worse from this episode than it was before. Mnangagwa’s supporters want to argue that it is the work of a shadowy force but it has not made any remarkable efforts to investigate crimes that have been committed and to capture the shadowy perpetrators. One would expect a greater sense of urgency in pursuing perpetrators but there is no such effort.

Instead, there has been enhanced persecution of citizens as evidenced by the arrest and assault of human rights lawyer Douglas Coltart and his client, rural teachers’ representative Obert Masaraure. Journalists doing their work have also been arrested and assaulted. Amos Chibaya, the National Organiser of the MDC was also arrested and detained for allegedly failing to stop the demonstrations after the prohibition orders had been issued. Yet the government through its propaganda media channels claimed that the demonstrations had flopped. How was he supposed to stop demonstrations which the allegedly flopped?

The MDC needed to show that they are peaceful and non-violent but the state is, which is what happened. The MDC needed to show that the referees are biased and there is no rule of law but rule by law, which this episode has also demonstrated. The MDC needed to demonstrate that the system and the laws are unjust, which the handling of the demonstrations by the police and the courts have shown. The MDC had to show that it is a law-abiding party which is, however, facing an unjust and incorrigible system.

Although some of its supporters were frustrated that their leaders had not come out in defiance of the police prohibition orders and court rulings, it was far wiser to let the regime commit damaging mistakes without disturbing it. It would have been foolhardy on this occasion to fall into the narrative of an opposition that disregards the law and the inevitable violence would have been even more damaging. Any intervention by the MDC leaders would have given the regime ample justification for an even more vicious clampdown.

Instead, the regime became violent all by itself, without any prompting from the opposition leaders. Sun Tzu was right: the supreme art of war is winning without fighting. The MDC leaders may not have the physical wounds of the battlefront and some of their supporters and detractors may call them names, but on this occasion, they won the moral battle against the regime. There is no doubt that the episode has embarrassed ZANU PF and left them more damaged in reputation than before.

What next? Comply or Defy?

Nevertheless, this was just a battle. The war is far from being won. To be sure, this episode left ZANU PF reeling in the court of both local and international public opinion. Only the traditional SADC allies have come to its defence, but they also backed the ruinous Mugabe regime for many years. They will always back the incumbent but more significantly, their support is merely moral. It does not bring the economic respite that the regime sorely needs.

For the MDC and its allies in civil society, they face deep philosophical and practical questions. Having amply demonstrated that the system and its laws are unjust and that there is no likelihood of fairness from the referees, they must ask how they will approach the next phase: do they continue on the path of compliance with manifestly unjust laws or do they choose defiance?

Historically, those fighting unjust systems have first tried the path of compliance, hoping to get accommodation and believing that the repressive system would find its conscience and change its ways. Usually, this has not worked and the opposition has had to circumvent, avoid or defy unjust laws and systems. At some stage in the affairs of humankind, there comes a breaking point when it becomes foolhardy to follow a manifestly unjust path which will produce predictable and unjust outcomes.

The opposition has to confront an important question: is there anything to suggest that the conduct of the 2023 elections will any different from the conduct of the last elections in 2018? If the answer to that question is negative then there is a need for a manifestly different strategy or history will continue repeating itself. The opposition has shown the world that there is no genuine Second Republic and that the system is grossly unjust. Now it has to grapple with what to do next in the face of an unjust system - comply or defy? That is the fundamental question.


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