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The right to revolt against tyranny
By Adv.
Lucas Nkomo
FOLLOWING the
State's withdrawal before plea of the second criminal charge of treason
against him, MDC party leader Morgan Tsvangirai issued a statement at
a media conference wherein he discussed the situation in Zimbabwe and
the way forward.
In the last paragraph of the full text of the statement published by Newzimbabwe.com on 3 August 2005, Tsvangirai declared that "We shall be taking the people's wishes to our international partners and the entire international community to nudge them to help us find a lasting solution to our problems"
In the last sentence of that paragraph Morgan Tsvangirai had to mince his words thus: "If, as Mugabe says, no other option is available to resolve the crisis, let us hope that he refrains from pushing the people to the wall and force them to try out something else".
That Morgan Tsvangirai had to use guarded language to express the hope that Mugabe "refrains from pushing the people to the wall and force them to try out something else" may be sad testimony that the Mugabe regime's use of the law to persecute its political opponents has taken its toll: no more clarion calls for Mugabe to go peacefully or else he will be removed violently; or calls for a "Final Push" to get rid of the regime. In the struggle for a just and democratic society in Zimbabwe currently, there is a glaring and lamentable dearth of inspired leadership courage and resolve such as that displayed by Nelson Mandela in his famous 1964 speech from the dock during the Revonia treason trial: "But if needs be, it is an ideal for which I am prepared to die"; or Fidel Castro in 1953: "Condemn me. It does not matter. History will absolve me".
Despite the Mugabe regime's perverse use of the law as an instrument of terror and tyranny, there is a recognised right of a people to resort to rebellion against tyranny and oppression. International law, political morality and even Christian doctrine all recognise that the people have an inalienable right to resort to rebellion against tyranny in certain circumstances. It is hoped that this general exposition of the right to resort to rebellion against tyranny with particular focus on the Zimbabwean situation will fortify and inform the resolve of those in the forefront of the struggle for political change even on the face of criminal charges of treason.
That governments can become criminal governments is beyond question - Hitler's Third Reich and Mugabe's Zanu PF, to name only two examples, are cases in point. Governments can prosecute criminals, but when, as in Zimbabwe currently, a government engages in criminal acts against its own citizens, what recourse do its citizens have? What recourse, as a last resort, do the people have against a regime that has effectively outlawed all lawful and peaceful means of effective struggle against its tyranny?
The issue of what recourse, as a last resort, is available to a people oppressed by a tyrant exercised the minds of legal and political philosophers for Centuries and led to the articulation of the notion that human beings have certain natural rights which are inalienable; that the end and design of civil government cannot be to deprive the people of their liberty or take away their freedom, but, on the contrary, the true design of civil government is to protect the people in the enjoyment of liberty.
On that score, it followed that tyranny and arbitrary power are utterly inconsistent with and subversive of the very end and design of civil government. Consequently, the authority of a tyrant is of itself null and void, for it is impossible that any individual, or even the greatest number of people, can confer a right upon another of which they themselves are not possessed; that is, no body of people can justly and lawfully authorise any person to tyrannise over and oppress fellow-creatures.
It is therefore recognised that once a government abuses the people it is supposed to represent by adopting tyrannical and capricious rule, such government forfeits its right to legitimately rule the people and the people have a legitimate right, as a final recourse, to renounce all submission to its rule and revolt against it.
| "While rebellion at times entails resorting to violent action, it is at times morally legitimate to take violent action against a tyrant in a situation where such violence can reasonably be expected to relieve much greater harm" |
| ADVOCATE LUCAS NKOMO |
The recognition and legitimation of the people's right to resort to rebellion against tyranny is embodied in international human rights instruments. The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948, in the third paragraph of the preamble, declares that it is essential that human rights should be protected by the rule of law, "if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression".
The African [Banjul] Charter of Human and Peoples' Rights adopted by the Organisation of African Unity (now African Union) in 1986, in Article 20(2) and (3), confers colonized or oppressed people with the right to "liberate themselves by resorting to any means recognised by the international community". The Charter further enjoins State parties to it to assist the oppressed in their liberation struggle.
It is therefore plain that recourse to rebellion against oppression by a post-independence regime like Mugabe's ZANU (PF) is, in the wording of the African Charter, a "means recognised by the international community" as expressed in the third preambular paragraph of the Universal Declaration of Human Rights. The Universal Declaration of Human Rights confirms the universal recognition of the right to resort to rebellion against tyranny and oppression, and its status as a self-evident and inalienable human right that cannot be transferred, waived, forfeited, usurped, or lost through failure to exercise or assert it. There was therefore no need for Morgan Tsvangirai to disguise his warning that Mugabe may force people to rebel against his oppressive regime.
Consequently, it is generally accepted that the duty to submit to just and lawful governance is founded upon the obligation to promote the general good; and the same obligation to promote the general good obligates the people to zealously oppose tyranny. No person can be a good member of society who is not as zealous to oppose tyranny as he or she is ready to obey lawful authority. As Reverend Samuel West in his 1776 sermon on the right to rebel against governors asserted, a slavish submission to tyranny is proof of a sordid and base mentality which is devoid of generous human sentiments and tender regard for mankind.
While the act of rebellion at times entail resorting to violent action, it is at times regarded as morally legitimate to take violent action against a tyrant in a situation where such violence can reasonably be expected to relieve much greater harm and suffering than it causes.
The concept of human rights asserts an entitlement on the part of the rights bearer and an obligation on the part of society to incorporate that entitlement into its system of values and laws. It is therefore imperative, as a future guarantee that Zimbabwe will never be a tyranny again, that consideration be given to a constitutionally entrenched right to have recourse to rebellion against tyranny and oppression. Arguably, the tendency of governments towards tyranny and oppression of their citizens cannot be kept in check unless governments have some fear of the people's collective right, entrenched in the Constitution, of recourse to rebellion against such tyranny and oppression.
The entrenchment of such a right in the Constitution will not only incorporate a right that is already recognised in international human rights instruments such as the Universal Declaration of Human Rights and the African Charter of Human and Peoples' Rights, as all the other rights in the current Constitution are, but will also have the crucial effect of countervailing the State's institutional monopoly of force and violence. As one of the 17th Century legal philosophers on the subject, John Locke, asserted, "this doctrine of a power in the people of providing for their safety anew is the best fence against rebellion" because a government that respects the people's ability to form a new government is a government that understands the limits of its own power.
The call for such a constitutional right in Zimbabwe must not therefore be mistaken for a call for the entrenchment of the Hobbesian state of nature, namely that of occasional war of all against all. Instead, it is a right that can arguably be regulated in the same manner that the right to resort to the use of force between states is regulated under public international law.
In its hour of triumph, the American Revolution of 1776 consecrated the right to rebel against tyranny in the Declaration of Independence, in the following telling terms: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the Pursuit of Happiness; That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed; That whenever any form of government becomes destructive of these ends, it is the Right of the People to alter or abolish it and institute a new Government, laying its foundation on such principles and organising its powers in such form as to them shall seem most likely to effect their Safety and Happiness".
The French Revolution of 1789 culminated in a Declaration of the Rights of Man that bequeathed the right to rebel to future generations in equally forthright terms: "When the government violates the rights of the people, insurrection is for them the most sacred of rights and the most imperative of duties".
It is worth noting
that those who resorted to rebellion against the oppression of the Rhodesian
colonial regime, in their hour of triumph, that is, the negotiations
that ended the hostilities and brought about the Lancaster House constitution;
failed to legitimise the right to resort to rebellion against oppression
by enshrining it in the constitution. It is hoped that Zimbabweans will
not repeat the same omission in their hour of triumph against the ZANU
(PF) regime. Never again should a regime have sole monopoly of force
and violence.
Advocate Nkomo is a Zimbabwean lawyer based in Sydney, Australia
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