Kenya’s stolen election–lessons from Zimbabwe

by David Coltart

David ColtartBULAWAYO, ZimbabweKenya’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.

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 dramatization of injustice in front of a city hall. Indeed, direct action and legal action complement one another; when skillfully 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 in order 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 judgments we printed them out in full and we 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 judgments. 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 MDC 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 last 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 to do business in.

Kenya’s future can now be defined by hard facts filed in court and published the world over or by hundreds of innocents slain countrywide.

David Coltart MP is Shadow Minister of Justice in Zimbabwe, for the Movement for Democratic Change. He has been a human rights lawyer there since 1983. He was first elected to Bulawayo South in June 2000 and re-elected in March 2005 with a 76% majority. This article has been published in