COLUMN: DR ALEX T. MAGAISA
But whilst the shattered economy has devastated the country and its people, it hardly affects Mugabe and his acolytes directly. If there is one thing that worries him though, it is the lack of legitimacy that he now faces.
The Mugabe regime has an ambivalent approach toward the law. For a man who holds two law degrees and is surrounded by lawyers, Mugabe finds it hard to ignore the power of the law. He knows it provides the basis for challenge against his authority and has tended to overlook or stretch it when it matters.
But he also craves legitimacy and therefore, tries hard to create a veneer of legality over his actions. In so doing, he hopes formal legality will confer legitimacy to his actions.
The recent election provides a stark illustration of the regime’s catastrophic approach toward the law.
On the one hand, the government is prepared to use the law and legal institutions such as the judiciary and the Zimbabwe Electoral Commission (ZEC) in order to maintain power. On the other hand, it is prepared to disregard and manipulate the law when it does not suit its interests.
That the regime has continued to resort to the law when it might as well dispense with it and rule by force shows a desire to place the cloak of legality over its actions in the hope that this will confer legitimacy. Direct force outside the legal structures would totally erase that veneer of legality and legitimacy.
For example, the self-serving interpretation of the Constitution by the government that the Cabinet which Mugabe dissolved prior to the March 29 election, nevertheless, continues to have constitutional authority is an attempt to create a cloak of constitutional legality. This, in turn, is designed to serve as justification for continuing to exercise power. It does not matter to them that the claims to legality are without foundation.
What then explains Mugabe and Zanu PF’s approach toward the law?
History is replete with instances of oppressive regimes seeking to clothe their actions with the apparel of legality in order to claim legitimacy to exercise state power.
For example, both Hitler and Stalin were notorious for the ‘show trials’ conducted in the 1930s and 1940s. Although the ‘show trials’ were politically motivated, they did claim the aura of judicial legitimacy because they were conducted in open courts and were carried out under the law. Of course, this judicial legitimacy was a sham because the system was severely compromised.
Central to their approach, however, was a narrow understanding of legality leading to a very limited interpretation of legitimacy. For them to claim legality of their actions, it was enough that the laws were passed by a recognised authority. It did not matter that the judges were compromised, that the lawyers were persecuted and that laws were unfair and devoid of key values underpinning a normal constitutional order.
This, in many ways, is no different from the approach taken by the Mugabe regime. Although keen to claim legality, the interest is not in the substance or values but simply the form and structure of the laws. It is sufficient for them to claim legality on the basis that the ZEC is a constitutional body that is exercising its powers under the law; that matters are brought before the courts and that legislative provisions are invoked to justify the delays to the electoral process.
Why do such regimes insist on legality? Why do they worry about legitimacy? It is because even a thief eventually craves to be recognised as the legal and legitimate owner of the property that he has stolen. He will do everything to create a veneer of legality and legitimacy over the property. Ultimately, he wants people to believe and recognise him as the owner of the property, notwithstanding the defective circumstances appertaining to its acquisition.
History shows that the basis of legitimacy of a government has evolved over the centuries. In ancient times, the basis of legitimacy was underpinned by belief in the existence of divine will. In some cases legitimacy was based on some rational or moral basis deriving from Natural Law. In those cases, legality and legitimacy were derived from the government’s conformity with Natural Law.
In modern times, the legality and legitimacy of government’s exercise of power primarily derives from the Constitution. That is why it is regarded as the supreme law to which all laws and actions of the government must conform. There is an inherent ‘social contract’ between the government and the citizens that the former will conform to the Constitution in order to exercise government power. And where the government fails to meet its part of the bargain, its legitimacy is severely eroded.
This is the context in which it can be said that Mugabe’s government is facing a crisis of legitimacy. It is because it has failed to meet its part of the ‘social contract’ as contained in the Constitution and its underlying values. The legitimacy of exercising governmental power derives from winning a popular election. The elections were held on March 29 but results have been inordinately delayed and indications are that the incumbent is unwilling to give up power. Its current legitimacy is therefore highly questionable.
But the government also knows that in the modern world, the sources of legitimacy go beyond the national boundaries. There are a number of international safeguards of legality and legitimacy at international law which derive from international agreements and conventions created under the authority of bodies such as the United Nations (UN), African Union (AU), Southern African Development Community (SADC), etc. It is important to conform to these rules and values to gain acceptance and recognition as a legitimate government within the community of nations.
A clear example of the influence of such bodies on legitimacy of a government was shown in Togo in 2005 when the Economic Community of West African States (ECOWAS) led efforts that resulted in the withdrawal of Faure Gnassingbe who had been illegitimately installed as leader by the military after the death of his father Gnassingbe Eyadema. Not even attempts to change the Constitution to provide a veil of legality could confer legitimacy to his installation. SADC leaders can learn a lot from this episode.
Mugabe craves acceptance and recognition on the international stage. His ability over the years to participate freely at the UN, AU and SADC has been vital to his claims of legitimacy. At present he cannot do that and isolation is growing. Instead, it is his bitter rival, Morgan Tsvangirai who is leading the line on the diplomatic front. There are increasingly indications that Mugabe’s cosy relationship with African leaders is becoming more uncomfortable.
It is for this reason that the diplomatic offensive by Morgan Tsvangirai and MDC on the international scene has been a very important and effective tactic. I have written in these pages before that the MDC needed to learn the language of African politics and it is notable that it is now fluent in this language. Until now, Mugabe and Zanu PF have hoodwinked most of Africa by using the cloak of legality in order to claim legitimacy. Unfortunately, some, like President Mbeki of SA are still being hoodwinked by this cloak of legality.
But it does appear now, that besides the shambled economy, the other great challenge for Mugabe and Zanu PF is the crisis of legitimacy which they cannot ignore for long. Unlike the economy, this one hits them directly and it must be painful to live with for no amount of wealth can buy legitimacy. That is why they are now calling for a Government of National Unity – it is an attempt to re-purchase that legitimacy through the MDC.
Although one does not derive comfort in quoting Goebbels, Hitler’s notorious chief propagandist in the Nazi regime, he had words that Mugabe and Zanu PF might gain from. He wrote in 1932 that, ‘Dictatorships that hide behind the law to give themselves an appearance of legality even if their actions disagree, are short-lived. They will collapse of their own incompetence, leaving behind chaos and confusion’.
The Nazi regime was brutal but short-lived. And 12 years after Goebbels wrote those words, it did leave much chaos and confusion.
Magaisa is based at Kent Law School, UK and can be contacted at firstname.lastname@example.org
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