In the week leading up to the Zimbabwean general elections in March 2008, Masimba Kuchera, Michael Muza and Tafadzwa Rugoho filed an urgent High Court chamber application which challenged the President’s gazetting of Statutory Instrument 43 the previous week. That Instrument authorised police officers to assist illiterate or disabled voters in the polling booth. In doing so, it reversed reforms to the Electoral Act which had only been in place for two months. Muza and Rugoho, who were all disabled, argued that the new regulations violated their legal right to vote in secret. They therefore wanted the High Court to invalidate them, and allow illiterate or disabled voters to be assisted by a person of their own choosing. But despite numerous media and that documented , the judge who heard the application regarded the litigants’ concern about their role in elections as unjustified. She that their application was not urgent and dismissed it with costs.
The core elements of this case – from the (ab)use of law by the President to hold on to power, to the efforts by citizens to take to the courts in order to defend their rights, as well as the tendency of the judiciary to find in favour of the government in sensitive political matters – were typical of legal struggles dealing with overtly political matters during the post-2000 period in Zimbabwe. It is tempting to see these uses of the law as a local manifestation what some have described as the global ‘ during the post-Cold War period. But there is a longer history of struggles over the role of law in the political sphere in contemporary Zimbabwe, which stretches back to the turbulent last decades of settler rule.
Law was a central feature of the settler government’s response to the rise of African nationalism. The decades leading up to independence in 1980 witnessed the building up of an extensive legal armoury, the increasing orientation of the security apparatus towards the silencing of political dissent, and the cementing of the ‘state of exception’ in government policy. Between 1950 and 1960 the government passed six laws, each more repressive than the last, in an effort to suppress nationalist agitation. The key legislation – the Emergency Powers, and the Law and Order (Maintenance) Acts of 1960 – were amended 44 times between 1960 and 1979, as the settler state sought to criminalize virtually all forms of political protest. These laws would form a key part of the legal legacy of settler rule.
At independence it seemed as if the country might make a break with this history of political repression. However, this possibility was undermined by the institutional legacy of settler rule, and the authoritarian tendencies within ZANU (PF) which had taken root in the military camps during the 1970s. The slide back towards political repression was triggered by the eruption of armed clashes between ZANU (PF) and PF ZAPU ex-combatants in late 1980 and early 1981. In the aftermath of these clashes the new ZANU (PF) government took steps to crush all political opposition. Between 1980 and 1990 the government repeatedly renewed the nationwide state of emergency that had been initially declared by the Rhodesian authorities. Like its predecessors, the government actively used the Law and Order Maintenance Act and Emergency Powers Act to brutally repress ZAPU and those deemed to be its supporters. The decade thus witnessed the of thousands of citizens in Matabeleland by government forces.
By contrast, the 1990s were marked by relative political stability. This did not signify a fundamental change in the ZANU (PF)’s approach to governing, rather it reflected its sense of political security after having absorbed ZAPU. However, the threat posed by the Movement for Democratic Change to the ruling party’s hold on power triggered .
The similarities we see between the legal strategies adopted by the ZANU (PF) government in dealing with political opposition, and those used by successive settler governments since the 1950s are not coincidental. They indicate key continuities in the nature of the state, and the place of law as an element of statecraft. The history of legal struggles in Zimbabwe also offer hard lessons for opposition forces about the limits of legal strategies. In dealing with a state that is particularly adept in the ‘authoritarian rule of law’, a new constitution, regardless of how progressive it is, is unlikely to be a magic bullet. The way forward, it would seem, is not towards the increasing use of legal forums to resolve political questions, but rather back towards more traditional forms of political mobilisation and struggle.