New Zimbabwe.com

Big Saturday Read: The question of political reforms

By Alex Magaisa


THERE are very few critiques of the troubles afflicting Zimbabwe that do not end with a call for political reforms. The opposition party calls for political reforms. Critics of government warn that prospects of economic recovery will remain remote unless there are political reforms. Western governments, which remain highly critical of the government, have responded to calls for re-engagement with calls for political reforms.

Although so much has previously been written to demonstrate the reforms that are needed, sympathisers have often responded by questioning the content of these political reforms. The calls for reforms and denials have left some observers confused. In some cases there is unsureness as to what constitutes these reforms. Are political reforms a euphemism for regime change, as some members of Zanu PF allege? It is important to examine this phenomenon of political reforms.

Firstly, the notion of political reforms is predicated on the belief that there are deficiencies in Zimbabwe’s political architecture. These deficiencies are hazardous to the structure of politics and the processes that flow through it. These deficiencies are both procedural and substantive in nature. In other words, they affect the political processes as well as the content and outcomes of politics. It is important therefore, in examining reforms, to identify the deficiencies.

Establishing political consent: Political referees 

The authority to govern in a democratic society is based on the notion of popular consent. This popular consent is conferred through free, fair and credible elections. Popular consent is what distinguishes democracies from authoritarian regimes where the power to govern is established by the gun.

It’s not enough however to hold elections when they are not free, fair and credible. Authoritarian regimes do hold elections as regularly as liberal democracies. But these elections in authoritarian regimes lack credibility because oft-times the referees are captured and compromised. This taints the idea of popular consent. The resulting regimes will claim to have been popularly elected but they will struggle because of  contested electoral outcomes.

Elections require closure to pave way for political actors to focus on substantive policy issues that impact development. In liberal democracies, closure in the electoral process is achieved when the losing candidate concedes defeat. It confirms the winner’s legitimacy.

However, in authoritarian regimes where electoral processes are materially deficient and unfair, the candidate declared to have lost the election generally withholds his or her consent. This lack of “losers’ consent” prevents closure to the electoral process, undermining the idea of popular consent which is central to the legitimacy question.

It also means the years between elections are spent on these contestations with the government battling to assert and prove its legitimacy and the opposition insisting the ruling party has no justification to govern. Very little attention is paid to substantive policy issues that affect development. Consequently, development is stifled.. The immediate years before the election are spent arguing over the political environment and the immediate years after an election are spent arguing over the legitimacy of the outcome.

Why do candidates in advanced liberal democracies concede defeat while their counterparts in authoritarian regimes routinely reject the results of an election? In advanced liberal democracies candidates generally have confidence in the electoral process and the institutions that run elections. This does not mean they are perfect. It simply means they accept that they are substantially free and fair and notwithstanding any limitations the outcome can be regarded as a true and fair reflection of public opinion. The fact that they have a history of exchanging power between the main parties helps. If you reject an outcome, there is a chance that the rival will also do so should you win. In short, because there is a level playing ground, contestants know there is always a chance they can prevail and if they lose, they will try again the next time, trusting the political referees to be independent and impartial.

In authoritarian regimes on the other hand, the referees that run elections are so captured by the ruling party that the other candidates participate in elections with severe misgivings and reservations. The outcome is already contested even before the first ballot has been cast. Where the ruling party has never experienced life in opposition, it has no incentive to behave because it fears that if it ever loses power it might be subjected to the same unfair conditions that it used against the opposition. Elections are therefore a zero-sum game; ruling parties see loss as a fatal condition they cannot afford to experience.

This is precisely where Zimbabwe is and the greatest deficiency in its messy politics. The political processes and institutions that are designed to provide an avenue for establishing popular consent or the right to govern are weak, compromised and contested. At the heart of this political architecture is the Zimbabwe Electoral Commission (ZEC), which is said, not to be fit for its intended purpose.

Proponents of political reforms often focus on the appointed Chairperson and commissioners that constitute  ZEC. However, this focus is too narrow. It is useful but it is just one level in the whole call for   reforms. The second level is the ZEC bureaucracy which actually manages and runs the institution on a day to day basis. This bureaucracy, headed by the Chief Elections Officer, is even more critical than the Chairperson and commissioners because it’s the one that actually runs the elections.

There are concerns that the ZEC bureaucracy is too militarised. That there are former members of the security services within ZEC has been admitted by its leadership albeit with purported justifications. These justifications have to be considered against the negatives that come with this militarised component upon ZEC as a political referee.

The position of Chief Elections Officer is a major bone of contention. It is a material weakness in the institution. After more than a year as Acting Chief Elections Officer, Utoile Silaigwana was confirmed to the substantive position earlier this year. This controversial appointment was confirmation that the regime is not serious about political reforms. Apart from the Chairperson and the Commissioners, ZEC needs a Chief Elections Officer and a secretariat that enjoys the confidence of the electoral market or outcomes of elections will always be contested and tainted.

Consequently, the legitimacy deficit will always be a feature of the electoral process unless there are reforms. Reforms mean a total overhaul of ZEC; a complete change of the way it does things. As things stand, Zimbabwe is set for another elections calamity in 2023, because it is unlikely to deliver an outcome that inspires confidence. When the current Ethiopian President assumed power, one of the first areas of reform was this electoral referee. By contrast, Mnangagwa has gone with the status quo. It’s a recipe for disaster and more contestation of outcomes means further suffocation of developmental projects.

Independent Judiciary

As one of the three arms of the state, alongside the executive and the legislature, politically, the judiciary has the key role of a political referee. It resolves the political conflicts between the citizens and the government and in particular between the opposition and the ruling party. This role requires impartiality and efficiency.

However, over the years the opposition has complained that the judiciary is institutionally biased towards the ruling party. It is not lost on the judges that the opposition preferred a complete overhaul of the judiciary as part of the 2013 constitutional reforms. The opposition wanted a Kenyan-style clear-out and interviewing process that would have ushered in a new or reformed judiciary. The opposition lost this battle, an outcome whose impact would be felt in years to come, as Zanu PF was defending the judges. In trying to reform the judiciary, the opposition had strengthened opponents. Some of these judges have never forgiven the opposition for calling out these reforms.

While there will be occasional judgments that favour the opposition, they are mere sweeteners to provide a veneer of impartiality and independence. When it comes to the crunch, as in major disputes with implications upon the balance of power in the nation-state, the opposition will always be on the losing end. It’s a year after the Constitutional Court ruled in favour of Mnangagwa after last year’s election but the court is yet to deliver its full judgment. To say it’s an embarrassment is an understatement. The judiciary’s own rules require judgements to be available within 90 days of the end of the hearing.

Still, the opposition finds itself facing a conundrum: because the opposition wants to demonstrate compliance with the law, it continues to approach the courts to resolve political conflicts. Yet by going to the courts, it also gives legitimacy to the outcome of the judicial process, however flawed it may be. Therefore each time the opposition approached the courts to defend their right to peaceful demonstrations, it lost, the judiciary effectively providing a coating of legitimacy to the government’s prohibitions.

Some and perhaps even a fair number of judges are decent individuals who desire to perform their role with professionalism and integrity. But it’s not about individual judges. As with ZEC, it’s the institutional culture of bias and favour towards the state and ruling party that is problematic.

Political reforms include measures to address this institutional bias across the judiciary and allied institutions such as the Zimbabwe Republic Police and the National Prosecuting Authority. The problem is that there is no appetite for such an overhaul. Zanu PF conveniently says it is bound by the Constitution and cannot interfere with the judiciary. But when Mnangagwa wanted to get rid of another constitutional body to suit his liking he simply got the Commissioners at the Zimbabwe Anti-Corruption Commission to resign en masse. And he introduced a new one. Mnangagwa even established an anti-corruption prosecution unit in his own office because he felt the National Prosecuting Authority was not doing a good job in such matters. The fact is, if there is political will, it is not impossible to make vital reforms to the judiciary.

Political rights: Rights to peaceful assembly, demonstrations and expression

While the Constitution makes provision for the protection of political rights and freedoms, including freedom of assembly and association and the right to demonstrate peacefully, legislation and administrative conduct often claw back and minimise the scope of these rights.

The recent blanket ban on MDC demonstrations by the police with judicial approval illustrates the impediments to these rights and freedoms. Further, the use of lethal force by the military in response to demonstrations in August 2018 and January 2019 shows the government’s repressive hand which hinders these rights.

In addition, while the government has signaled an intention to repeal draconian laws such as the Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA), the proposed replacements have drawn serious criticism. The opposition, civil society and critics argue that the Maintenance of Peace and Order Act is just as draconian. It was also recently criticised by the United Nations Special Rapporteur on Freedoms of Assembly and Expression.

That UN report, produced following an invitation by the government, is a clear statement of confirmation by a neutral referee that the current legislative and administrative conduct are inimical to these key freedoms. Apart from the UN Special Rapporteur, another important referee, the International Monetary Fund (IMF) also echoed similar sentiments, exhorting the government to carry out political reforms. These positions from otherwise neutral referees, whose approval the government is seeking, provide sufficient motivation for and the content of political reforms.

State media reforms

An issue that is raised by observers after every election is the grossly unfair conduct of the state media. Both electronic and print media are blatantly in favour of the ruling party. They give disproportionate coverage to ZANU PF and prejudice other parties. This conduct is contrary to the constitution.

It is therefore not the absence of laws that make the ZBC or The Herald so openly biased towards Zanu PF and against the opposition. Such bias is actually a violation of the law. In one of the rare instances of judicial objectivity, a court ruled that the ZBC had violated the rules during the 2018 elections. Nevertheless, there have been no sanctions for that behaviour. Even ZEC which is charged with running elections has not condemned the ZBC.

As with ZEC, police and the judiciary already discussed, the weaknesses in state media are institutional. The institutions that have always been pro-Zanu PF know nothing else and old habits have continued. Hence the likes of ZBC remain anchored in a toxic past.

One can discern opportunities for change in newer institutions such as Zimpapers TV, which incidentally is a member of the Zimpapers Group which publishes the rabidly pro-Zanu PF Herald and The Sunday Mail. It is probably possible to create a positive institutional culture in newer organisations but it remains to be seen how long Zimpapers TV is able to maintain a modicum of professionalism in the midst of the toxic Zimpapers family. ZBC still has the widest radio coverage however and it is there that important reforms are needed.

Accountability

One of the most effective ways to prevent political violence is to ensure there are disincentives for it. This means potential perpetrators of violence must appreciate that the costs of committing violent acts outweigh the benefits. This can be achieved by prosecuting and punishing offenders. Yet over the years perpetrators of political violence which was state-sanctioned have not been held to account. The absence of prosecution actually acts as an incentive for the violent to commit more acts of violence.

Another group of offenders that ought to be brought to account as part of political reforms are the members of the security services who shot and killed civilians both in August 2018  and January 2019. None of them has been brought to book. This is notwithstanding the fact that a commission set up to investigate the August killings found that they had been committed by members of the security services and recommended action by the government to ensure accountability. Failure to bring these perpetrators to account is a political omission which needs to be addressed by a political decision.

Another piece of reforms which fall under the need to implement in the constitution is the establishment of an independent complaints mechanism in relation to the conduct of members of the security services. The idea behind this institution is to ensure there is, beyond the judicial system, an independent avenue for resolving disputes between members of the public and members of the security services. Although it was included in the Constitution, 6 years later it has not been implemented. There is no reason why this institution cannot be established. It would probably have handled the complaints over the actions of the military in August 2018 and January 2019 with greater efficiency.

Allied to this is the need to demilitarise state institutions and to desist from deploying armed soldiers to perform police functions. Such deployments should only be in extreme and rare circumstances. In the past year, this has turned out to be the preferred method of policing, with fatal results. This is not surprising: soldiers are trained to kill not to merely keep law and order, a function for which they are ill-equipped.

Political arrests, detentions and abductions

The political environment remains toxic for members of the opposition and civil society organisations. No less than 20 persons are currently facing charges of attempting to subvert/overthrow the government. The rampant use of this law to arrest and detain opponents has made it a laughing stock. Few take the government seriously when it throws around such spurious allegations.

Accused persons are pushed from pillar to post, their cases delayed and postponed – keeping a sword of Damocles above their heads. These legal processes are mechanisms of control of the opposition rather than a pursuit of justice. The political strategy is: keep them busy in the courts, restrict their freedoms through tough bail conditions and keep them scared of being jailed.

Political reforms include stopping these political persecutions carried out under the guise of prosecution. They make the government look paranoid and insecure. But more importantly they leave significant stains on the reputation of the government as it is perceived by the outside world:  a repressive authoritarian regime which routinely harasses and jails opponents.

There has also lately been a spate of politically-motivated abductions. This adds to precious cases including the abduction and disappearance of Itai Dzamara in 2015. The recent abduction of Dr Peter Mugombeyi and the government’s intransigence as it denied him his right to travel to South Africa for treatment made things worse.

The problem is none of the perpetrators have ever been identified or brought to book. The government is failing in its duty to protect citizens. At worst it or its members are complicit in the abductions. The government denies responsibility for the abductions and mocks victims, accusing the opposition in the process. The state media also lampoons the victims. All this creates a negative reputation for the country. If it cannot protect its citizens; if it can be so cruel to its citizens, how can it protect the interests of foreign investors? Charity begins at home. Political reforms mean ensuring that these political crimes against citizens are fully investigated and perpetrators are brought to book.

Traditional leaders in rural areas 

According to official statistics, the rural areas of Zimbabwe accommodate the majority of the population. There is a valid argument that while the majority is in rural areas, it may be grossly exaggerated for political ends. This is an area that needs closer scrutiny and I think the opposition needs to invest more in a scientific study of these official statistics.

Nevertheless, a critical factor in these areas is the effect of militarisation and also the role of traditional leaders who often act as sentinels and enforcers of the ruling party. The previous violence by Zanu PF produced a seed of fear that continues to affect behaviour of voters and public opinion in these areas. The abuse of state resources – agricultural inputs and food aid is endemic.

Sure, the opposition needs to come up with an alternative rural strategy, but the depth of control and manipulation that Zanu PF has cannot be ignored. Political reforms mean disentangling the architecture of power of traditional leaders from Zanu PF. But there is no appetite for this. Zanu PF does not have the appetite to commit political suicide by reforms. It is therefore too ambitious and naive to expect Zanu PF to implement these reforms. The obligation lies with the opposition to invest in new strategies to overturn Zanu PF’s stranglehold.

Stop using decrees

One of the hallmarks of authoritarian regimes is to rule by decree. Decrees allow the authoritarian to rule on a whim, by-passing Parliament. Parliament merely becomes a rubber-stamping institution, approving decrees already made by the executive even if they were illegal. Such a government treats parliament and the courts with disdain.

In our case decrees are routinely issued through statutory instruments, directives and statements. For example, the High Court ruled that when Finance Minister Professor Mthuli Ncube issued a statutory instrument establishing the 2% tax he had behaved unlawfully. Ncube simply brushed it aside arguing that the statutory instrument had since been replaced by primary legislation.

He was right that the Finance Act (No.2) had since been passed by Parliament. But he completely failed to acknowledge that he had acted illegally in the first place when he issued the decree. He did not even apologise. Either did it dawn upon him that the Finance Act (No. 2) was being applied retrospectively, itself a major breach of the rule of law. But this is how authoritarian regimes behave. For them the law is not a restraint on their power. It is merely an instrument of control and assertion of power. If they can do it in relation to a tax law, they can do it for anything.

Political reforms mean desisting from resorting to decrees. Rule by decree is authoritarian and repressive.

Political neutrality

A functional democracy is based on political institutions that have integrity and independence from political actors. The civil service, independent commissions, the military, police, prosecution and other institutions are required by the Constitution to abide by the principle of political neutrality. This is not to say members of these institutions do not have political opinions. They do and they are entitled to have them. But they must not interfere with their professional duties as public officers. The purpose is to ensure the political ground is even; that it does not favour or prejudice a party.

Regrettably most of the institutions fail on this score. The preponderance of evidence suggests that they bat for Zanu PF and prejudice other parties. Political reforms in this area require a responsible and ethical leadership. They require a leadership that is committed to the principles of fair play. This is very hard to measure and admittedly does not happen overnight. However, there has to be a demonstrable effort on the part of President Mnangagwa and his team, that they are committed to avoid institutional bias and to create a level playing field. It requires an overhaul of state institutions and punishment of those who breach the constitutional rules that require fair play.

As has been said before by critics, the principal impediment to this reform is that Zanu PF has no appetite for reforms as this would take away the traditional advantages  it has always enjoyed in respect of its hold over  state institutions. But when critics argue for political reforms, this is precisely what they are demanding from Mnangagwa – the courage to let go of the unlawful and unfair hold upon institutions of the state. That courage is lacking.

Conclusion

When someone asks “what are the political reforms?”. These are the political reforms that are required. Let it be said that many of these reforms are already enshrined in the 2013 Constitution. What is lacking is implementation and the political will to do so on the part of President Mnangagwa and ZANU PF. Let me summarise them in point form:

  1. Electoral reforms to allow fair play, reduce disputation and prevent illegitimacy. ZEC is not fit for purpose as a political referee. It has consistently failed to deliver legitimate outcomes.
  1. Inculcating political neutrality and independence of state institutions to ensure a fair and even political playing field
  2. Ensuring a fair, impartial and independent judiciary to resolve conflicts.
  3. Overhaul of legislation that restricts political rights and freedoms; replacing it with laws that are consistent with the constitution and international human rights instruments. POSA must go but MOPO is not fit for purpose and it must be substantially reformed too.
  4. Administrative conduct by police and other law enforcement institutions must be fair, lawful and constitutional
  5. Desist from politically motivated arrests which routinely target the opposition and civil society
  6. Hold perpetrators of politically motivated violence, including murders and abductions accountable
  7. Desist from using decrees
  8. Ensure state media is fair, neutral and professional. Having state media as an instrument of propaganda is inimical to democracy.
  9. Finally, it’s important to recognise that the issue of political reforms is central to Zimbabwe’s prospects of economic recovery. Zimbabwe’s political risk remains high, repelling investors whose investments are necessary to reignite the economy. Even the likes of the IMF are encouraging economic reforms. Investors take a cue from such institutions. These reforms will not be achieved overnight. But there has to be some effort.

So far, the government has shown more rhetoric but little action to back it up. The citizens have no trust and are giving up on their government. Foreign investors will be even more reluctant. Yet compared to potential benefits, the costs of these reforms are very low. The ball is in Mnangagwa’s court. It remains to be seen whether he is ready to play. He’s showing heavy and tired legs.

WaMagaisa

wamagaisa@me.com