Understanding the Rawlsian Notion of Civil Disobedience in the Zimbabwean Crisis By Joseph Chukwuocha
Introduction In his discourse on the principles of duty and obligation, and their implication for the theory of political duty and obligation within a constitutional framework, John Rawls touches on the special question of civil disobedience. In this paper, I focus on the meaning, context, justification and role of civil disobedience. My principal aim is to demonstrate that a clear understanding of Rawls’ concept of civil disobedience may offer a relevant contribution in informing and shaping the on-going efforts and strategies taken by Zimbabwean citizens to appeal to the sense of justice and actualize it in their society. Hence, in the first part of this essay, I expose Rawls’ idea of civil disobedience; and in the second part, I apply the idea to the Zimbabwean situation, currently faced with socio-political and economic crisis.
The Rawlsian Conception of Civil Disobedience Rawls defines Civil disobedience as “a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government (Rawls, TJ 364). For a clearer understanding of this definition, it is expedient to clarify its component features. Civil disobedience is public because it is an open act that is addressed to communal principles. Put differently, it is not done with fair notice and without any covert actions. Secondly, civil disobedience is non-violent, since it avoids the use of aggression, especially against persons and the civil liberties of others (366). Rawls argues that although civil disobedience warns and admonishes, it is not itself a threat. It expresses disobedience to law within the limits of fidelity to law by the public and non-violent nature of the act and also by the willingness to accept the legal consequences of one’s conduct. However, Michael Walzer has argued that “the insistence on the 1
absolute non-violence of civil disobedience is, in any case, a little disingenuous, as it disregards, first, the coercive impact disobedience often has on innocent bystanders, and second, the actual violence it provokes, and sometimes is intended to provoke, especially from the police” (Walzer 25). Yet, Walzer thinks that it is preferable that no one be coerced and that police violence be met with passive resistance, even though he maintains that “there may be occasions when neither of these is politically possible” (25). Thirdly, civil disobedience is a political act because it is addressed to the government that holds political power, and also because it is an act guided and justified by political principles embedded in the principles of justice that regulate the constitution and social institutions generally. Hence, in justifying civil disobedience one does not appeal to self-interest, principles of personal morality or to religious doctrines, though these may coincide with and support one’s claims (Rawls 365).
But before disobeying a legally established democratic authority, that is, a constitutional regime, it is important for one to know why he or she must obey in the first instance. The obligation to obey the state depends upon the conception of justice that is the basis of a theory of political obligation. Rawls believes that an appropriate understanding of social contract theory is crucial in order to properly conceive of political obligation in a constitutional democracy (Rawls, CP 177). He develops his conception of justice, in which he discusses the obligation to obey the state, from the social contract perspective. The social contract tradition, championed by key modern political philosophers such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, holds that humans are, by nature, free and equal (Morris ix). Hence, there should be a rational justification of any conventional arrangements in the society, including the obligation to obey the state. Rawls develops his justification for the duty to obey the state in his idea of the Original Position, which is often compared to the ‘state of nature’ or the pre-political condition of humanity as found in the social contract theories. In short, the obligation to obey the state comes from the fact that, as free and rational persons, we have chosen and consented to the principles of justice in the Original Position to which social arrangements must conform and 2
which define our natural duties and obligations (CP 177). Rawls contends that we should comply with and do our part in just and efficient social institutions because we have a natural duty not to oppose their establishment and also because we have knowingly accepted the benefits of these institutions and plan to continue to do so. Just as we encourage and expect others to do their part, we also have an obligation to do our share (177).
Rawls makes some assumptions to support his theory of civil disobedience. Firstly, a theory of civil disobedience is designed only for the special case of a nearly just society, one that is well-ordered for the most part (363). Particularly, Rawls refers to a constitutional democracy. He assumes that in a reasonably just democratic regime there is a public conception of justice by reference to which citizens regulate their political affairs and interpret the constitution. The citizens in such a society are free and equal persons who recognize and accept the legitimacy of their constitution (382). Hence, civil disobedience achieves its appropriateness if it is applied to a legitimately established democratic authority, rather than the other forms of government such as anarchism or authoritarianism. Secondly, civil disobedience does not apply, except incidentally, to other kinds of dissent or resistance, such militant action and resistance, as a tactic for transforming or even overturning an unjust and corrupt system (363). Thirdly, civil disobedience does not require that the civilly disobedient act breach the same law that is being protested. It allows for indirect as well as direct civil disobedience. Thus, if government enacts a vague and harsh statute against treason, it would not be appropriate to commit treason as a way of objecting to it (364). Fourthly, the civilly disobedient act is actually contrary to law, and those engaged in it are prepared to oppose the statute.
3
The Object of Civil Disobedience What then does Civil disobedience seek to achieve? Civil disobedience, when it is justified, is meant to be a political action that seeks to address the sense of justice of the majority or of the government and to declare that in the dissenters’ considered opinion the principles of social cooperation among free and equal persons are not being respected (364). It is an appeal to others to reconsider, to put themselves in the dissenters’ position, and to recognize that they cannot expect the dissenters to acquiesce indefinitely in the terms imposed upon them. The weight of this appeal depends upon the democratic conception of society as a system of cooperation among equal persons (383). As evident in its definition, the main goal of civil disobedience is to bring about a change in the law or policies of the government. Therefore, civil disobedience is not first and foremost meant to overthrow the government or sabotage the economy, or to further interests of foreign powers and so forth. If some citizens engage in some form of disobedience to the Zimbabwean government, for instance, with a mere intention of furthering the interests of foreign governments, like Britain or the United States, without giving precedence to the conception of justice of the Zimbabwean citizens, that would be a serious misreading of Rawls' theory of civil disobedience.
What is the context or circumstances in which civil disobedience is justified? According to Rawls, civil disobedience is justified on the following grounds: firstly, when there is persistent and deliberate violation of the basic principles of justice over any extended period of time. (TJ 365). In this case, there is a serious infringement of the first principle of justice, the principle of equal liberty, and deliberate violations of the second part of the second principle, the principle of fair equality of opportunity (371). For example, when the citizens are denied the right to vote or to hold office, or to own property, or religious groups are denied their right of assembly and worship, we can talk of unjust infringements. Secondly, civil disobedience is justified when the normal appeals to the political majority or governance have already been made in good faith but they have failed. Here, even the legal 4
means of redress have proved to no avail. Attempts to have the laws repealed have been ignored and legal protests and demonstrations have had no success. Here civil obedience may be said to be a last resort form of protest and, indeed, necessary because those concerned have shown themselves immovable or apathetic (371). Even though the two preceding conditions are often sufficient to justify civil disobedience, Rawls further argues that care should be taken to avoid lasting injury to the just constitution to which those who want to engage in civil disobedience recognize as natural duty of justice. For example, if there are many groups that want to dissent at the same time there may be undesirable consequences for all. Hence, Rawls advises that ‘some fair plan’ should be adopted so that all things are properly considered (373). He does not propose a detailed practical plan, but only an ideally theoretical point of view that calls for a cooperative political alliance of the dissenters in order to regulate the overall level of dissent. In my opinion, Rawls is right here because he allows for flexibility to fit different political contexts (375). But the sine qua non is that civil disobedience should be organized in such a way that will not lead to injury to third parties, to the innocent, and so on. In the Zimbabwean context, for example, dissenters would have to make sure that their decision, to execute a ‘Stay Away’ from work, for illustration, does not affect sick people in hospitals while achieving no effect on the primary target of their disobedience, that is, the government. Zimbabwean dissenters, I think, would, hence, be well advised if they heeded Rawls’ call for prudence, even though in their considered judgment, they think they are justified to engage in civil disobedience. They have to weight whether Civil disobedience will simply serve to provoke the harsh retaliation of the government or not. Because their action is meant to make an effective appeal to the wider community, it must be properly and rationally designed for it to be understood and supported. As I pointed out earlier, Rawls is again wise enough not to offer any specific details about practical
5
considerations with regard to practical strategies on how to carry out civil disobedience, because he realizes that its approach depends on the circumstances of each case.
A Challenge to the Zimbabwean Crisis Given Rawls’ theoretical framework expounded above, a challenge is thrown to Zimbabweans to evaluate their situation, according to their conception of justice, to identify any particular case that might provide a justification for civil disobedience. I choose one test case from the concrete Zimbabwean situation that may help one to identify any violation of justice that may call for the need for civil disobedience. This case is The Operation Restore Order or “Operation Murambatsvina.” The government of Zimbabwe embarked on this Operation from 19 May 2005, claiming to target illegal dwellings and structures and to clamp down on alleged illicit activities. According to the report made by the UN Special Envoy on Human Settlement Issues in Zimbabwe, Prof. Anna Kajumulo Tibaijuka, this operation to “clean-up” its cities was done with little or no warning. This “crash” operation resulted in the destruction of homes, business premises and vending sites. The report estimated that about 700,000 people in cities across the country lost their homes, their sources of livelihood or both and were left with no access to food, water, sanitation or health care. The Special Envoy’s report pronounced the manner in which this operation was carried out as indiscriminate and unjustified, with indifference to human suffering, and, in repeated cases, with disregard to several provisions of national and international legal frameworks. Secondly, the report argued that the Operation Restore Order was based on a set of colonial-era laws and policies that were used as a tool of segregation and social exclusion against the disadvantaged black majority (Tibaijuka 2). I think Rawls would be ready to accept the report’s conclusions if they corresponded to his conception of justice. For instance, considering Rawls’ discussion of the Difference Principle, which is aimed at benefiting the least advantaged, who were the main targets of the Operation Murambatsvina, we can argue that the
6
Operation violated Rawls’ conception of justice. It is also most probably impinged on the political rights of Zimbabweans, as Michael Bratton argues that the Operation followed close the heels of the parliamentary election of March 2005, in which political opposition was centered in urban areas. Hence, he argues, “there is reason to suppose that the crackdown constituted a form of collective punishment” (Braton et al 35).
Another important consideration that Zimbabweans must take into consideration is that there is a difference between Rawls’ civil disobedience and what he calls conscientious refusal, which is noncompliance with a more or less direct legal injunction or administrative order. An important example of conscientious refusal is the refusal of the Jehovah’s Witnesses to salute the flag or the unwillingness of a pacifist to serve in the armed forces (TJ 368). Conscientious refusal is not a form of address appealing to the sense of justice of the majority; it is not an act in the public forum. So, if Zimbabweans are dissatisfied with some instances of injustice in their society, but they decide not to go public but bide their time hoping that the necessity to disobey will not arise, their passivity will not be regarded as civil disobedience, however much they disapprove of the injustice. This is because their attitude is, according to Rawls, less optimistic than those undertaking civil disobedience and they may entertain no expectation of changing laws or policies (369).
Rawls’ conception of justice is a feasible yardstick to measure not only the government’s performance but also the citizens’ actions. For example, in the present crisis in Zimbabwe, it is not enough to take a one-dimensional view of simply pointing the finger to the government. People should also ask themselves whether their response to the difficult situation aids the social injustice or not. For instance, how do we rate the tendency of those people who refuse formally and legally recognized means of conducting business affairs, and have instead resorted to the parallel markets in their financial 7
transactions? Resorting to covert activities that elude the constitutionally recognized procedures cannot be considered as an act of civil disobedience. I support this assertion with two reasons: first, such activities are done underground and not in public, and, secondly, such activities do not seek to appeal to the public sense of justice. And I think Rawls would classify such activities as a form of conscientious evasion (TJ 369), since they do not add up to the value of the economy. Some objections, however, arise in my attempt to apply Rawls’ conception of Civil disobedience to the Zimbabwean situation. The first objection is due to Rawls’ argument that the public conception of justice is supposed to be formulated in the Original Position. Given the fact that the Original Position is a hypothetical and ahistorical situation, it therefore fails to be adequately akin to the actual historical Zimbabwean context. While Rawls assumes that the free and rational agents in the Original Position concur on the principles that will be for the advantage of all, including the least advantages, the formulation of the principles that inform the Zimbabwean governments’ actions may be looked at in a different light. The development of the Zimbabwean conception of justice, including the formulation of the constitution, had an unpleasant historical beginning whose hangover still lingers on. The current Lancaster House Constitution was not inspired by the collective consent or consensus of the people of Zimbabwe. Its primary object was to facilitate a transfer of political power from the settler minority to the indigenous majority, while preserving the former’s rights and privileges. The restrictive provisions included the 10-year Moratorium on Constitutional Amendments, a clause Protecting White Property, Rights and Privileges, and the ‘Willing Seller-Willing Buyer’ clause (“The Zimbabwe We Want” 9).The fact that the constitution has been amended seventeen times since 1980, shows efforts to address the shortcomings of the original Lancaster House Constitution. So, in the first place, Rawls’ assumption that the public has to recognize and accept the legitimacy of the constitution is challenged insofar as unjust elements still characterize the constitution.
8
The Zimbabwean constitution has undergone several amendments since independence in 1980, hence making Zimbabwe be regarded, in principal, as constitutional democracy. The ideal is that citizens are free to make decisions that regulate their political affairs and interpret their constitution through democratic means. However, in practice, there is a serious problem concerning the public conception of justice that is supposed to inform such political decisions. This conception of justice has to be formed gradually in practice, unlike in the hypothetical Original Position. One instrumental way in which the conception of justice is properly formed is through the means of communication, particularly the media. But there are already complaints that the media in Zimbabwe has manifested some bias in forming public opinion. Ragnar Waldahl observes that the Zimbabwean media has had a history of offering a biased and manipulative forum and news that give favourable exposure to the ruling party, ZANU-PF, hence giving it an important advantage over its opponents who are either restricted or shown in an unfavourable light. He mentions the Zimbabwe Broadcasting Cooperation (ZBC), The Herald, and The Sunday Mail as examples of the media that favour the ruling party. On the other hand, there are independent publications like The Daily News, The Financial Gazette, The Standard, and The Zimbabwe Independent that try to counter the former (Wahldal 105 – 113). The situation in practice leaves us suspicious whether the government operates on Rawls’ understanding of a constitutional democracy or perhaps according to some form of
authoritarianism. Norma Kriger
argues that “given the ongoing political repression in Zimbabwe, the prospects of either the MDC coming to power through an election or of civil society pressurizing ZANU (PF) to reform itself seem remote” (Kriger 35).
9
The Way-Forward What form could civil disobedience take in Zimbabwe? As pointed out earlier, Rawls does not give any detailed practical plan on how to carry out Civil disobedience, but he offers a theoretical point of view that calls for a cooperative political alliance of the dissenters in order to regulate the overall level of dissent. Abe Fortas says that the “right to dissent may be exercised by the use of written and spoken words; by acts, such as picketing, which are sometimes referred to as ‘symbolic speech’ because they are means of communicating ideas and of reaching the mind and the conscience of others; and by ‘peaceable’ mass assembly and demonstrations” (Fortas 25). Fortas’ description may be usefully applied in devising a practical way of executing Civil disobedience. For me, civil disobedience in Zimbabwe could take the form of a Stay Away. as the one that was called for on April 4 and 5 2008. I consider a Stay Away an appropriate form of Civil disobedience because it had a political dimension to it, especially in its public appeal to the sense of justice- against corruption in particular. Also, it was non-violent nature adds to its quality as a good step towards achieving the ideal set by Rawls. I understand that it was rendered ineffective by some repressive laws that are contentious as far as a constitutional democracy is concerned. For instance, the Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA) are examples of pieces of legislation that inhibit peaceful assembly and the free flow and exchange of ideas. Such laws impede the necessary means of reaching Rawls’ proposition of making a public appeal to the sense of justice especially when the accountability of those who govern is called into question.
Conclusion I have, so far, been expounding Rawls’ theory of Civil disobedience, paying particular attention to its meaning, context, justification and role. I also attempted to apply this theory to the Zimbabwean 10
situation in its perennial political and economic crisis. My main argument has been that the theory of civil disobedience is relevant to the Zimbabwean situation, at least in theory. Rawls does not propose a detailed plan of action for those who want to engage in civil disobedience but he articulates a perspective within which civil disobedience can be approached, especially by his identification of the relevant considerations that those in the actual situation may find useful. I find this understandable because Rawls acknowledges the need for flexibility to fit unique and different contexts. One can argue, however, that Rawls relies too much on the existence of a sense of justice in order to develop his theory of civil disobedience. In the case of Zimbabwe, the historical reality that began with an unjust colonial conception of society, differs from Rawls’ original position that starts with disinterested, free, and rational agents who choose of principles of justice for the benefit of all. Rawls himself acknowledges that, in a situation where the feeling for justice is not a vital political force, “what moves people are various other interests, such as the desire for wealth, power, prestige, and so on� (CP 187). Furthermore, I have attempted to point out that Zimbabwe still needs a better political environment, enhanced by a colonial-free and just constitution, whose implementation should manifest its respect for the means that stimulate political consciousness and the public sense of justice without any repressive attempts on the part of the government.
11
List of Sources Bratton, Michael & Eldred Masunungure. “Popular Reactions to State Repression: Operation Murambatsvina In Zimbabwe.” African Affairs: The Journal of the Royal African Society. Vol.106.No.422. London: Oxford Journals, January 2007. Churches of Zimbabwe. The Zimbabwe We Want: Towards a National Vision for Zimbabwe. Harare: 15 September 2006. Fortas, Abe. Concerning Dissent and Civil Disobedience: We Have an Alternative to Violence. New York: Signet Books, 1968. Kriger, Norma. “ZANU(PF) strategies in general elections, 1980-2000: Discourse and coercion.” African Affairs: The Journal of the Royal African Society. Vol.104. No.414. London: Oxford Journals, January 2005. Morris, Christopher W. Ed. “Introduction.” The Social Contract Theorists: Critical Essays on Hobbes, Locke and Rousseau. Oxford: Rowman & Littlefield Publishers, Inc., 1999. Rawls, John. A Theory of Justice. Cambridge: Harvard University Press, 1971.
Rawls, John. Collected Papers. Ed. Samuel Freeman. Cambridge: Harvard University Press, 1999.
International Religious Freedom Report 2005. <http://www.state.gov/g/drl/rls/irf/2005/51503.htm> Accessed: 24/04/2009.
Tibaijuka, Anna Kajumulo. Report of the Fact-Finding Mission to Zimbabwe to assess the Scope and Impact of Operation Murambatsvina by the UN Special Envoy on Human Settlement Issues in Zimbabwe. <http://www.zimbabwesituation.com/zimbabwe_rpt.pdfAccessedd: 24/04/2009. Waldahl, Ragnar. Politics and Persuasion: Media Coverage of Zimbabwe’s 2000 Election. Harare: Weaver Press, 2004.pp.105-113. Walzer, Michael. Obligations: Essays on Disobedience, War, and Citizenship. New York: Simon and 12
Schuster Rockefeller Center, 1970.
13