Let’s simply respect the Constitution: Coltart

HUMAN rights lawyer Doug Coltart, who has been arrested and assaulted by police for representing Amalgamated Rural Teachers Union of Zimbabwe, speaks on his role in Nelson Chamisa’s 2018 Constitutional Court challenge and how he got to interview and draft affidavits for MDC Alliance polling agents who had been assaulted, raped and either forced to change the election results on V11 forms or chased away from polling stations. Coltart (DC) in his interview with NewsDay (ND) Midlands reporter Brenna Matendere also spoke on the need to respect the Constitution instead of mutilating it.

ND: Who is Doug Coltart?

DC: First and foremost, I am a follower of Jesus. That motivates and inspires all that I do. It drives me to fight for justice for my clients as a lawyer; to empower ordinary people to bring about positive change as an activist and community organiser. It is informed by the belief that all people have inherent dignity, as they are made in the image of God, and deserve respect for their fundamental rights, a living wage, and a fulfilled life. It also reminds me that all people (including me) are sinful and in need of God’s grace.

This means it is necessary to establish safeguards against our own capacity for injustice such as democracy, constitutionalism and the separation of powers. As the Christian philosopher Reinhold Niebuhr once said: “Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary.”

I am a husband and a father, a son, an uncle and a brother; and I’m a Pan-Africanist who believes that the unity of all African people will emancipate our continent from the twin vices of tyranny and imperialism.

ND: Do you think there are misunderstandings regarding your father David Coltart’s history in the colonial period?

DC: There are certainly people who try to twist the truth to serve their own political agenda. My dad has always been open about his role in the colonial period: he was a junior police officer conscripted as a teenager. He was never a Selous Scout as claimed by some and was fortunate to have never been involved in active combat.

Nevertheless, his role as a police officer in propping up a racist and white supremacist regime was wrong. He has apologised for that, which was the right thing to do, and he has been open in sharing even the darkest moments of his role, such as the time when he had to dispose of the body of a dead freedom fighter.

ND: Critics like Jonathan Moyo have labelled him a racist and fierce fighter of independent Zimbabwe during the colonial period. What’s your take on that?

DC: Jonathan Moyo has actually come out publicly and admitted that he was the one who invented the false propaganda that my father was a Selous Scout. He claims it was “political banter”! The fact that a debunked myth like that is still used against him today is a shame. My dad’s views have certainly changed over time and, as he said in his book, he regrets some of his views and actions as a young man.

I think if any one of us truly looks deep into our own hearts, we know that none of us are innocent of having prejudices and biases and we have to keep on repenting and coming back to God to ask Him to make us more like Him and love all people as He does. That’s as true of my dad as it is of anyone. But I think his post-independence track record speaks for itself: for decades, he has worked hard to secure a better future for all Zimbabweans regardless of race.

ND: Can you shed light on your experiences as a human rights lawyer.

DC: I greatly enjoy my work as a lawyer. I am with a law firm called Mtetwa and Nyambirai, which has a very dynamic work environment, where I have learnt a lot. The firm was founded by Beatrice Mtetwa and Tawanda Nyambirai, both of whom have vast experience and it has been a privilege to work under them and with a group of brilliant young lawyers.

We do quite a lot of human rights cases, but we also do a lot of commercial work, family law matters, labour law etc — so the work is diverse and there is never a dull moment. I have come under fire from the State for some of the work that I do, especially when I represented labour unions. I was assaulted by the police and I am currently standing trial for providing legal representation to the Amalgamated Rural Teachers Union of Zimbabwe and I have been slandered with false allegations by the President’s spokesperson (George Charamba) on my legal representation of the Zimbabwe Hospital Doctors Association (ZHDA) during the doctors’ strike.
But these things come within the territory of an authoritarian State like ours. I will not allow it to deter me from doing my work and representing my clients to the best of my ability.

ND: Which are some of the cases you argued resulting in landmark rulings?

DC: I will leave it to others to decide if they are really landmark rulings, but there are a number of significant cases that I have been proud to have been involved in. The ruling against the Zimbabwe Broadcasting Corporation and The Herald, which declared their coverage of the 2018 elections to be biased and ordered them to comply with the Constitution was one such case.
It is an excellent judgment by Justice (Joseph) Mafusire which provides valuable interpretation to an important constitutional provision drawing on Pan-African jurisprudence. Another one was the ruling that protected schoolchildren from being forced to attend political rallies, which was hailed by the United Nations as a breakthrough for children’s rights in Zimbabwe.
Unfortunately, that ruling was overturned on appeal on a technicality, the reasons for which have never been handed down. But while it stood, the High Court order was instrumental in protecting many children from exploitation by political parties.

Recently, I obtained an order on behalf of the disabled community which enabled them to get access to information on COVID-19 in a format accessible to deaf and blind persons.
Lastly, though not a case I argued, I was greatly honoured to have my constitutional law book quoted in a judgment of the Constitutional Court that I definitely would call a “landmark ruling”, that is, the ruling which abolished child marriages in Zimbabwe.

ND: You were part of the legal team led by Thabani Mpofu in Nelson Chamisa’s Constitutional Court appeal against the 2018 presidential election results. Tell us your experiences?
DC: It was a huge privilege to work on such a big case with experienced lawyers such as Thabani Mpofu as well as South African advocates Tembeka Ngcukaitobi (Senior Counsel), Dali Mpofu (Senior Counsel) and Jeremy Gauntlett (Queen’s Counsel), who are truly giants of the profession.
My primary role in the case was to interview and draft affidavits for MDC Alliance polling agents who had been assaulted, raped and either forced to change the results on V11 forms or chased away from polling stations, meaning that many of them had failed to get a copy of the V11 forms.

That is an aspect of the case that appears to have been lost on many people and the violence in the post-election period largely overlooked in understanding why the V11 forms had become a “poisoned chalice”.

The stories I heard, the broken bones I saw with my own eyes, were truly heart-wrenching. But what was most inspiring was the bravery and determination of the people I interviewed to achieve a free Zimbabwe. Most of them had been beaten up before and during the 2008 election.
I had to get consent from each of them for their affidavits to be used in the court case — which would, of course, pose a serious threat to them. Every single one of them gave consent, despite the risks. It is those people — the brave men and women from villages across Zimbabwe — who give me hope that one day, Zimbabwe will be free.

ND: Chief Justice Luke Malaba ruled that you did not have solid evidence to back your case, implying President Emmerson Mnangagwa won the election. What evidence had you presented which you believed was very strong?

DC: There were two main types of evidence placed before the Constitutional Court. Firstly, there was evidence of the breaches of the Constitution and the electoral law throughout the electoral process, including the partisan broadcasting of the State media, the unlawful use of State resources by the ruling party for their election campaign, the failure to supply the same voters’ roll to the MDC Alliance as the one used in the election, among other things.

Secondly, there was the expert evidence of (Kenyan statistician) Dr (Edgar Ouko) Otumba (the same expert witness who was instrumental in the overturning of Kenya’s 2017 election) which demonstrated several glaring irregularities in the Zimbabwe Electoral Commission (Zec)’s own results, including: double-counting of polling stations which gave Mnangagwa an extra 7 703 votes; polling stations with identical results (for all 23 candidates and spoilt ballots!), resulting in an extra 9 592 votes for Mnangagwa; results from “ghost polling stations” (ie, polling stations which did not appear on any published list of polling stations prior to the election), giving Mnangagwa an additional 5 396 votes; more than 100 polling stations with more votes than registered voters, affecting 31 204 votes; an unexplained 40 717 more votes in the presidential election than the parliamentary elections; and a discrepancy of over 700 000 votes between the total tally of voters using Zec’s official data on voter registration and voter turnout.

In addition to the above, Chamisa tried to subpoena Zec’s server which he believed would show the 2,6 million votes he maintains that he received. However, the Constitutional Court refused to issue the subpoena.

Notwithstanding that, when you consider that Mnangagwa only crossed the 50% threshold by 31 830 votes on official figures, it is my view that the evidence of irregularities which were before the court, even without Zec’s server, was more than sufficient to set aside the results and call for fresh elections.

ND: You have been arrested and persecuted for doing your job.

DC: Yes, I have been assaulted by police officers twice in the past year simply for doing my job, detained overnight in the filthy cells at Harare Central Police Station, and I am currently being prosecuted in two criminal trials on charges of “criminal nuisance” and “participating in a gathering with intent to cause public violence”.

But my worst experience is probably none of those incidents, but one from January 2019 where I found myself in a police station in Goromonzi which was taken over by the military demanding that my client, Robson Chere, who was in police custody, be handed over to the military. In that moment, I really feared for my own life and for the life of my client.
After he was booked into police cells and I left the station, the military again tried to abduct him from police custody, but thankfully, brave police officers insisted on due process and protected him. That is when I learnt that while there are certainly some bad cops, there are also some truly courageous and God-fearing men and women in our police force.

ND: Your comments on the recent arrest of lawyers and journalists, including alleged abductions of anti-government activists?

DC: The recent trend of arresting lawyers and journalists for doing their job and the abduction and torture of activists is deeply concerning. Over 10 lawyers have been arrested just in the past few weeks — most on very dubious charges — and the State appears to be trying to create a narrative to justify an attack against the entire legal profession. The abduction and torture of Joanah Mamombe, Cecilia Chimbiri and Netsai Marova and their subsequent incarceration for reporting their abduction and torture to the police is surely a new low for this regime.

ND: Is there respect of the rule of law in Zimbabwe?

DC: There is very little respect for the rule of law in Zimbabwe. The institutions that are meant to uphold and protect the rule of law are fundamentally broken and are being used instead to undermine the rule of law.

What we have in Zimbabwe is what we call rule by law: where the law is used as a coercive means of meting out oppression and injustice. This is one of the reasons why I wrote a piece titled How people power strengthens the rule of law, which was recently published in NewsDay’s sister paper The Standard.

The piece explores how ordinary people can play a role in re-establishing the rule of law, even when the institutional means to uphold it are broken, through grassroots community organising and non-violent direct action.

ND: What more can Mnangagwa do to improve the rule of law in Zimbabwe?

DC: The Mnangagwa regime should simply implement the Constitution of Zimbabwe. It is really that simple. They should not be amending the Constitution, as they are currently trying to do, to consolidate even more power in the Office of the President and to further undermine the independence of the Judiciary and other important constitutional bodies. Instead, they should focus on aligning all laws to the Constitution.

The State should stop arresting, abducting, torturing and prosecuting those who are simply exercising their rights under the Constitution. Instead, the State should arrest and prosecute all those involved in corruption and torture and those who killed unarmed civilians on August 1, 2018 and in January 2019.

ND: Zimbabwe Lawyers for Human Rights (ZLHR) are labelled by government as too sympathetic to the opposition and in particular MDC Alliance. What’s your take on that?

DC: I would certainly dispute that. I can’t speak on behalf of ZLHR, but I think their track record is very clear that they represent all people whose rights are violated regardless of their political affiliation. If government does not want ZLHR to represent members of the opposition, government should simply stop violating their rights.

I have represented even members of the current Zanu PF administration whose rights to freedom of expression were being violated towards the end of the (late former President Robert) Mugabe era. I represented them because I believe that all persons are entitled to have their rights respected.

ND: In your view, is there still racial segregation in Zimbabwe?

DC: While the country has come a long way, I do think that there is still quite a lot of de facto racial segregation in Zimbabwe. After 40 years of independence, I certainly would have hoped that as a nation, we would see more integration between white and black Zimbabweans (as well as other racial groups) in friendship circles, churches, schools, social settings, business partnerships, and marriages etc.

Personally, I have found black Zimbabweans incredibly welcoming and inclusive towards me as a white Zimbabwean, and so I am inclined to think that many white Zimbabweans have chosen to stick to themselves. Sadly, there is still a lot of racism in the white community.

But my hope is that with each new generation, as the legacy of the racist Rhodesian regime loosens its grip on us as a nation, we will become more and more integrated as one people. It will take a lot of commitment and dedication. I strongly feel that the church should be at the forefront of reconciling and uniting the nation and healing the wounds of the past.

ND: Going forward, what can Zimbabwe do to regain trust of the international community in terms of its human rights record?

DC: Personally, I feel we should be less concerned about what the international community thinks and we should do what is good and right for us as a nation. We have a Constitution which we agreed on as a nation and which was endorsed by over 90% of the electorate.

As I said earlier, let us start by implementing our own Constitution and respecting and promoting the fundamental rights guaranteed in that Constitution. When we are daily violating our own supreme law and now we are amending it to undermine some of its most important key values, how can we possibly expect the international community to take us seriously?

Once we start respecting ourselves and each other and our own Constitution, the respect and the trust of the international community will fall into place.

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