The burden of memory
In the end, they only managed to identify him because of a distinctive ring that he kept. His skull was crushed. The eyes had been gouged out. They had cut off his tongue. A bullet had violated and ripped through his chest. The remains were a picture of brutality and savagery, evidence of extreme cruelty of man towards man.
His name was Tonderai. Tonderai Ndira. Young though he was, he had already carved out a tough reputation among his comrades in the trenches of the struggle for democracy. The story is that a group of armed and masked men had arrived at his home in the high-density location of Mabvuku just before dawn. They beat him up in front of his wife and kids. Bloodied and in pain, they bundled him into a car and took him away. It would be the last time that his family saw him alive; a memory contaminated by the pain of a father.
Day and weeks passed, but efforts to locate him were in vain. Then one day, a body was discovered in a field in Goromonzi further to the east of Harare. It was taken to the morgue at Parirenyatwa Hospital. There, the mutilated corpse was eventually identified, but only on account of this tall, slight frame and the distinctive ring he carried. A young life cut down in brutal fashion.
Just weeks before, after the March 29 election, things had looked a lot brighter as a new future beckoned, with the MDC in the ascendancy after defeating ZANU PF for the first time in parliamentary election. Now, however, the leading figures of that campaign were being hunted like wild animals. On that fateful day, Ndira had come home after weeks of moving from one point to another, all in an effort to keep a step ahead of the hunters.
He was not alone. The brutal killing of Tonderai Ndira was one of many during this dark period, probably the darkest chapter in Zimbabwe’s electoral history. Thousands were beaten up, maimed and displaced from their homes.
“We are prepared to die. It is just the same, we are still dying in Zimbabwe. We are dying by hunger, by diseases, everything, so there is nothing to fear.” This is what Tonderai Ndira had said six years earlier, in 2002 in a BBC documentary. But no-one can ever adequately prepare for death, no matter the amount of courage, certainly not as violent and cruel a death as evidenced by his broken remains.
Still, his friends and allies in the MDC remember him with much fondness. Tonderai, the name bestowed upon him at birth, is a call to remember; a call to never forget. Today’s Big Saturday Read is dedicated to the memory of June 27 and the men and women who lost their lives, whose limbs were broken and whose homes and livelihoods were destroyed during that tumultuous but entirely avoidable period of political violence.
The choice of topic is deliberate: this past week marked the eighth anniversary of the 27 June presidential run-off election, the most farcical, brutal and devastating election ever held in Zimbabwe, the memory of which must never be forgotten. 2008 is the year Zimbabwe’s march towards democracy suffered its heaviest blow. Future generations may find in its tale a good example of how not to conduct an election. But the elections of 2008 also contain important lessons for the current generation: there are legal and strategic questions that arose in the 2008 elections process which may come up again in the 2018 elections. One of these questions, which I address in this article, is whether it was legally permissible and valid for a candidate in a run-off election to withdraw his participation.
When the tongue betrays the mind
On 2 December 2014, President Mugabe was addressing a group of top military generals at the ZANU PF Headquarters just before the start of the ZANU PF Congress, which is held every five years. During his speech he made reference to the elections of 2008 and in the process he unwittingly delivered a startling revelation about the election results of that year, reigniting public debate over a matter which had been a subject of deep intrigue and suspicion.
According to Mugabe, Morgan Tsvangirai had won 73 percent of the vote in the election held on 29 March. Realising what had just happened, the generals burst into an uncoordinated chorus of interjections, each one shouting “Forty seven percent!” to their boss. At that point, Mugabe took notice and repeated the “forty seven percent”, a vain attempt at self-correction.
Mugabe’s sympathisers said it was an innocent mistake. His opponents and critics on the other hand, were delighted and made the most of it. They said it was a Freudian slip – a slip of the tongue which reveals the speaker’s true but often repressed thoughts and beliefs. They said it proved what Mugabe has known all along, and what many in the opposition had long suspected: that Tsvangirai had won those elections by a wide margin and should have been declared President. It was no ordinary slip, they argued, but a truth that was buried in the archives of an elderly man’s mind and refusing to remain buried. In other words, the tongue had betrayed the mind and letting out the secrets locked up in the deep vaults of the mind.
Quite what happened in that period after voting closed on 29 March, we might never know. The knowledge is a burden upon those who carry it. In some cases, this burden can quickly morph into a death sentence. One senior election official, Ignatius Mushangwe was never seen again after attending a multi-party liaison meeting in Harare. He was accused of having leaked information on electoral manipulation. His body was discovered in Norton, to the west f Harare, more than 4 months after his disappearance.
But first, a summarised narrative of the 2008 elections to assist those who may have forgotten some of the finer details.
On 25 January 2008, President Mugabe issued an extraordinary gazette, setting 29 March 2008 as the date for the general election. This move upset the opposition, who thought Mugabe had reneged on an agreement to complete constitutional negotiations and electoral reforms before agreeing on an election date. “We are supposed to be having dialogue, yet this is a slap in the face of SADC, for African solutions to African problems,” said Nelson Chamisa, who was the MDC spokesman. “Mugabe is undermining this process. The issue of date [of elections] was supposed to be made by mutual agreement between the opposition and the regime.”
President Thabo Mbeki had been mediating negotiations between the ruling party and the opposition parties. This had resulted in a draft constitution, named the Kariba Draft after the venue where it was negotiated and drafted. Now, however, Mugabe had decided to go ahead and use his presidential authority to dissolve parliament and set the election date. Opposition protests yielded no result. And so the country hurtled towards an election, with an opposition that was largely unprepared. However, as it turned out, ZANU PF was even more unprepared and without unity in the run-up to the 29 March election.
The 29 March election had four candidates: Mugabe, Tsvangirai, Simba Makoni and Langton Towungana. There could have been six candidates, but two, Daniel Shumba and Bruce Chiota, were denied an opportunity to file their nomination papers. The Supreme Court later held that the refusal to accept their nomination papers was unlawful. However, by the time this decision was made, it was only of academic significance as the elections had already been concluded. It remains a moot point however, given their success in the Supreme Court, that if Shumba and Chiota had challenged the legal validity of the election, they might well have succeeded.
Although the 29 March election had its challenges, there was a general acknowledgement that it was peaceful and generally free and fair. This generous assessment benefits from a comparison with the presidential run-off election held on 27 June 2008. As I will explain in more detail, the announcement of the 29 March election results was a complicated affair, which led to great controversies. The parliamentary election results were released and announced almost immediately after voting. However, it was not until 2 May 2008 that the presidential election results were announced, an inordinate delay which raised serious suspicions and damaged the credibility of the election process. When the results were announced, it was revealed that Tsvangirai had won by 47,3 percent, with Mugabe coming second with 43,2 percent of the vote. Simba Makoni was a distant third with 8,3 percent and one Langton Towungana was a further distance behind with only 0,6 percent of the vote.
However, Zimbabwean law required the winner to have earned the majority of votes cast, which meant an absolute majority was needed to take the Presidency. Statistically, this meant the winner had to get at least fifty percent plus one vote in order to become President. The Zimbabwe Electoral Commission stated that although Tsvangirai had won, he had fallen short of the required absolute majority, which meant a presidential run-off election had to be held. In terms of the law, this run-off election would pit Tsvangirai, the winner, against Mugabe, the first runner-up. Nevertheless, events during this period raised a lot of questions. Had Tsvangirai been cheated of victory? Why had there been such a delay in announcing results? What was the effect of the delay on holding the run-off election? Did ZEC have the authority to do what it was doing? These are questions are analysed in this article.
As it happened, the country prepared for a run-off election. But what followed between 29 March and 27 June was a sordid affair, a dark chapter in Zimbabwe’s legal and political history. The situation is well-captured in a report by the Catholic Commission for Justice and Peace (CCJP), quoted by political scientist Eldred Masunungure, in his article on the election: “The 27 June run-off election was characterised by a wave of intimidation, torching of houses, beatings, abductions, ceaseless meetings and many other forms of violence. The pre-election period to this election left the people of Gokwe in total fear and psychological stress… This Pre-Presidential period (29 March to 27 June 2008) was the most violent and bloody of all post-colonial elections that we have witnessed as an observer group. The most primitive and uncivilised methods and tactics were used in this supposedly modern day election… The period between 29 March 2008 and 27 June 2008, the date set for the runoff elections thus can be described as ‘days of Armageddon’ for the Zimbabwean populace.”
Tsvangirai withdrew from the run-off election citing state-sponsored violence and terror against his supporters. The election would not be free and fair, he argued. ZEC paid no attention and the run-off went ahead, but it was effectively a one-man race. It was condemned across the world before it had even started. Soon after, the results were announced and within hours Mugabe had been inaugurated at a quick-fire ceremony. Shortly after that, he arrived in Sharm el-Sheikh, the resort town in Egypt where the African Union was meeting for a summit. He had probably hoped for a warm reception from peers as the newly-elected President of Zimbabwe. But what he found instead was a very cold reception. At one point, he was visibly angry after a Western journalist put it to him that he had stolen the election.
Instead of the endorsement that he sought, the AU directed SADC to handle the situation and help resolve the crisis in Zimbabwe. Mugabe realised that he may have bull-dozed his way to the presidency, but his legitimacy was badly soiled. He had no choice but to participate in the negotiations with the opposition under the mediation of SADC through the agency of President Mbeki of South Africa. And those negotiations led to the Global Political Agreement (GPA) and the inclusive government in which Mugabe was President and Tsvangirai became the new Prime Minister. That agreement concluded the tumultuous period of the 2008 elections.
What follows is an analysis of some of the key issues from those elections. It is important to understand that there were two sets of elections: the 29 March election, which was generally free, fair and peaceful; and the 27 June run-off election, which was a violence-ridden sham.
Delay in releasing the 29 March presidential election results
One of the most conspicuous aspects of the 29 March election was the inordinate and suspicious delay in the results of the presidential election. The results of the parliamentary elections were released almost immediately upon completion of the vote count in individual constituencies. The results of the presidential election were not released until five weeks later, on 2 May 2008. This was unprecedented and caused a lot consternation in the opposition.
On 4 April 2008, the MDC took the matter to the High Court, where they pleaded with the court to compel ZEC, the electoral body, to release the results. The matter came before Justice Tendai Uchena. However, in a judgment that was conspicuous by its strange reasoning, the court rejected the application. In his judgment, the judge acknowledged that the matter was urgent and condemned ZEC for the delay. He wrote at page 11 of the judgment: “In the absence of an explanation the delay between 29 March 2008 and 4 April 2008 seems to be unjustifiable and points to a lack of efficiency [on the part of ZEC].”
Nevertheless, despite this finding and the acknowledgement of urgency of the matter, it took Justice Uchena 10 days before he delivered the judgment, which was handed down on 14 April 2008. It was ironic that a matter that he regarded as urgent and over which he had criticised ZEC for inefficiency still took him an inordinately long time to decide.
There was a lot said in the judgment but everything came down to one crucial point: the power and discretion of ZEC to order a recount of votes, therefore necessitating and justifying a delay in the announcement of the presidential election result.
ZEC explained that the delay was caused by complaints which had been raised by a party, ZANU PF, acting under Section 67A of the Electoral Act. Section 67A is a provision which allowed ZEC to order a recount in an election. In terms of the relevant provision (section 67A(1) of the Electoral Act), ZEC could order a recount if it was demanded by a party/candidate within 48 hours of the announcement of the result. In the timeline of events, a recount could only take place after but not before the announcement of the result. The odd thing here was ZEC was claiming to do a recount upon the complaint by ZANU PF, but it had not yet announced the result. How could ZANU PF complain about the vote count when the results had not been announced, unless they had advance notice of the result?
Unsurprisingly, the judge correctly held that section 67A(1) which ZEC was relying on was not applicable. In essence, ZEC’s argument was false and without foundation in fact and at law. This case should have ended at this point because this was the erroneous basis upon which ZEC was acting. The judge should have compelled ZEC to release the results. Surprisingly, the judge did not do that. Instead, he went on to try and find a justification for the recount and the delay. However, his reasoning was erroneous and without legal foundation.
The provision which the judge relied up was section 67A(4) of the Electoral Act. He held that under this provision, ZEC had a wide discretion to order a recount ‘on its own initiative’. There were problems with this approach. First, this was not ZEC’s argument. They never argued that they were acting on their own initiative. They said they were acting on the basis of a complaint, which I have already said could not be sustained because the results had not yet been released. The judge had actually invented an argument on behalf of ZEC.
Second, the judge’s reasoning was erroneous when he stated that since section 67A(4) does not state the time when ZEC may order a recount ‘on its own initiative’, it gave the electoral body very wide discretion. ZEC’s discretion was not unqualified. The first qualification was that this discretion had to be exercised reasonably. It stated that in deciding whether or not to order a recount ZEC must have ‘reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election’. It is clear this provision imports a clear standard of reasonableness in the exercise of ZEC’s discretion. In other words, ZEC could not arbitrarily start a recount unless there were objective grounds for that action. It is a trite principle of public law that discretionary power by public officers must be exercised reasonably.
Inexplicably, however, Justice Uchena stated on page 14 of his judgment that: “It [ZEC] simply should have grounds for believing that the votes were miscounted” (emphasis added). With respect, his omission of “reasonable” to qualify “grounds” was flawed because it not only misrepresented the legal provision but it also makes a big difference to the exercise of discretion. “Grounds” and “reasonable grounds” are two different standards at law and the learned judge should have known this. The relegation of “reasonable grounds” to merely “grounds” may have clouded his judgment of and lowered the basis upon which ZEC was acting in ordering the recount.
The second qualification to ZEC’s discretion was to be found in the Constitution. Section 64(1) of the Constitution stated that ZEC must ensure that elections are conducted ‘efficiently, freely, fairly, transparently and in accordance with the law’. This standard governed how ZEC could use its discretion under section 67A(4) to order a recount on its own initiative. ZEC had been less than transparent in its conduct over the delay in announcing results. It had failed to communicate to the parties why the results were being withheld. The total silence from ZEC was very disconcerting to the opposition parties, and it had prompted the MDC-T to approach the court for relief.
The judge tried to bolster the view that ZEC has wide discretion on the matter of vote recounts on the basis that S. 67A(7) of the Electoral Act which states that ZEC’s decision to order a recount is not subject to appeal. This was an unconstitutional provision because it is inconsistent with the standard of reasonableness which ZEC must comply with and the constitutional standard stated above.
The judge’s reasoning in this case was inexplicable. It was clear that ZEC was acting unlawfully in ordering a recount on the basis of complaints from a candidate at a time when ZEC itself had not yet announced the result. What was the complainant complaining about if he did not know the result already? If the Mugabe already knew the result, how had he received advanced notice ahead of other candidates? This was a clear case in which the judge should have ordered ZEC to comply with the law and announce the result. Instead, the judge gave ZEC justification to continue delaying the results. Writing a critique of the judgment at the time, I concluded: “It is difficult to understand how the learned judge came to his conclusion given his positive findings throughout in favour of the applicant. Perhaps it is our collective folly to have expected too much of one man… I am not sure the judiciary has the wheels to carry justice in these political matters.”
It is yet another case that illustrates the phenomenon of judicial capture in Zimbabwe.
A militarised election: Operation Makavhotera Papi?
In his chapter entitled A militarised election: The 27 June Presidential run-off election, political scientist Eldred Masunungure analyses “how the winds of democratic change were defied, paying particular attention to the leading role of the military/security sector in this process”. That the army was heavily involved in the campaign was cited by Tsvangirai in his letter of withdrawal from the run-off election: “It is common cause that the Zimbabwe National Army through its senior officers has actively campaigned for ZANU PF and continues to do so. This has been the position with the Zimbabwe Republic Police where senior officials have publicly campaigned for ZANUPF. As if this was not enough, the senior officers of the uniformed forces have forced junior officers to vote for President Mugabe.”. A Human Rights Watch Report on the election violence also stated: “The violence is being orchestrated by the Joint Operations Command, which is headed by senior ZANU-PF officials and includes the heads of the Zimbabwe Defence Forces, police, prison services, and the Central Intelligence Organization. In some areas local police are attempting to enforce the rule of law, but they are being undermined by their own superior officers”.
This militarisation of the 27 June run-off election was a culmination of the process of militarising the state, which had begun much earlier. According to Bratton and Masunungure in their study, Michael Bratton and Eldred Masunungure, (‘Zimbabwe’s Long Agony’, Journal of Democracy, Vol. 19. No. 4, 2008) this process had become more open at the turn of the millennium. The militarization of the state was visible in the appointment of retired military and security officers into civilian institutions, particularly the politically strategic institutions. These included ZEC, which manages elections, and various other parastatals and security institutions. Masunungure demonstrates the difference between the 29 March election, which was largely a political campaign and the 27 June run-off election, which was a military-style campaign in which the military/security sector took a central and active role ahead of the ruling party.
This militarised election campaign was deliberately designed to give effect to the thinking that the bullet is supreme to the ballot. There was widespread use of war-related language by senior officers, including Mugabe himself. At one rally, he stated: “We fought for this country, and a lot of blood was shed. We are not going to give up our country because of a mere X. How can a ballpoint fight with a gun” (‘How can a pen fight a gun?’ The Times, 17 June 2008). Senior military officers and politicians invoked the rhetoric of battle, equating voting for the MDC as a declaration of war. In the rural areas, villagers were told that if they did not vote for Mugabe, they were voting for a return to war. As Tsvangirai wrote in his letter of withdrawal from the run-off election: “Throughout its campaigns, ZANU PF has threatened that there will be war if an MDC win in the presidential run-off is pronounced. Mr Mugabe made it quite clear recently that power cannot be taken by a pen but by a gun. War veterans aligned to him have articulated this position throughout the country.”
These tactics were similar to tactics that were used by ZANU PF in the 1980 elections, when thousands of ZANLA guerrillas remained in the villagers, carrying out “political education”, and essentially reminding rural villagers that if Mugabe lost, the war would resume. The war-weary villagers took the option that would bring peace. The militarised campaign for the 2008 presidential run-off election adopted similar methods and tactics. A press statement by the Zimbabwe Catholic Bishops Conference described the situation as follows: “People are being force-marched to political re-orientation meetings and are told that they voted ‘wrongly’ in the Presidential poll on 29 March 2008 and that on 27 June 2008, they will be given the last opportunity to ‘correct their mistake’, else the full-scale shooting war of the 1970s will resume ….” (Zimbabwe Catholic Bishops’ Conference, ‘Press Statement on the Current Crisis in Our Country’, 12 June 2008, quoted in Masungure’s chapter).
The campaign of violence and intimidation was code-named Operation Makavhotera Papi? (Operation Who Did You Vote For?) and was orchestrated in the rural areas before spreading into urban areas. It was retribution for voting for the MDC in the 29 March election, and a warning not to do the same in the 27 June run-off election. One ZANU PF official was quoted as saying, “We’re giving the people of Zimbabwe another opportunity to mend their ways, to vote properly… this is their last chance.”
According to Masunungure, “The bloody crackdown was reportedly orchestrated and systematically executed by soldiers, police, state security agents, ZANU PF militia and veterans of the liberation war. The violence took the form of intimidation, kidnapping, torture, arson and murder of opposition or suspected opposition leaders, activists and supporters.” This violent campaign, unprecedented in Zimbabwean elections, was well-documented by human rights organisations and observer groups. Human Rights Watch produced some of the more detailed and comprehensive reports of the violence and intimidation of this period. Masunungure summaries it by describing Zimbabwe as having been “reduced to a Hobbesian state of nature, in which life became ‘solitary, poor, nasty, brutish and short’" Local NGOs such as ZESN and the CCJP, which had observer groups around the country, also corroborated reports of the brutal violence that was taking place.
It was in this context that the run-off election was to be held. Tsvangirai had gone into voluntary exile in Botswana soon after the 29 March election, fearing for his life. His senior leaders were being arrested and beaten up back home. The MDC could not campaign. The environment was not conducive to the conduct of a free, fair and credible election. On 22 June 2008, just four days before the run-off election, Tsvangirai announced his withdrawal from the contest. The Foreign Minister of Tanzania, Bernard Membe, was quoted by Reuters news agency on 19 June 2008 as saying, “There is every sign that these elections will never be free nor fair” This was just a couple of weeks before the run-off election. Even the UN Security Council issued a damning verdict before the run-off election stating that it could not be free and fair.
As the run-off election approached, ZANU PF launched Operation Red Finger, which obliged voters to show the red ink that was used during voting as evidence that they had voted. The threat was that those who did not have a red finger would be regarded as MDC supporters and, therefore, sell-outs to be punished. This was partly in response to Tsvangirai’s withdrawal, which had the potential to reduce voter turnout. ZANU PF not only wanted Mugabe to win the run-off election, but to do so emphatically and a high voter turnout was necessary. For ZANU PF, the 27 June election was a must-win and there was no chance whatsoever of permitting a Tsvangirai victory.
Against this background, and despite condemnation from local and international observers, ZEC, which was militarised and compromised, went ahead with the election and declared it was free and fair. It was an incredible assessment which demonstrated the extent to which ZEC was severely compromised, but this was hardly a surprise because it had also become a highly militarised institution. During the course of that dark period, it made a number of highly questionable decisions, including disbanding the National Command Centre for elections coordination before the results had been announced. As the Zimbabwe Independent reported on 10 April 2008: “The command centre − then located at the Harare International Conference Centre (HICC) − was dismantled on Tuesday amid reports that opposition parties were not informed of the move and were in the dark as to where the vote counting was now taking place. Sources in ZEC told the Zimbabwe Independent that the commission dismantled the command centre from the HICC and moved electoral materials to Century House, the commission’s headquarters.” The MDC secretary-general, Tendai Biti, was reported as saying, “The National Command Centre has been dismantled. Sekeramayi told our people at the command centre that the process was now being done in private.” Biti believed the disbandment of the command centre was being done to allow ZEC to “fix the matrix of a run-off.” Simba Makoni, the other presidential candidate also complained, “There is no more work taking place in that place. It gets me very worried and I believe other political contestants are similarly worried that it is taking so long and why it is taking so long is not known.”
Illegality of extending the run-off election period
One of the consequences of the delay in announcing presidential election result was a delay in holding the run-off election and illegality in the extension of the period within which to hold that election. The Electoral Law required the run-off election to be held within 21 days of the first election. Realising that they could not meet this deadline, which had already passed by the time the result was announced on 2 May 2008, ZEC purported to extend the 21 days by ‘amending’ the Electoral Act using regulations under a statutory instrument. They substituted ‘90 days’ for ‘21 days’ in the Electoral Act. The run-off date was then announced on 15 May 2008, two weeks after the announcement of the results.
By amending the electoral law and extending the run-off period, ZEC claimed to be relying on section 192 of the Electoral Act, a provision which stated that ZEC could amend time limits provided for in the Act. However, using section 192 to amend the Electoral Act was unconstitutional. Section 113 (1) of the Constitution defines ‘electoral law’ as “the Act of Parliament”. Subsidiary legislation, such as a statutory instrument, is not an Act of Parliament. Only Parliament had the power to enact or amend the electoral law as primary legislation. While Parliament can confer authority to make subsidiary legislation under a statute, it does not and did not confer power to amend primary legislation, which is what ZEC purported to do when they used a statutory instrument to change the statutory period within which to hold the run-off election. Section 192, which ZEC purported to use allowed ZEC to amend primary legislation, but this was unconstitutional and unlawful.
The purpose of delaying the announcement of results, extending the run-off period, and delaying the announcement of the run-off election date was also to give ZANU PF an opportunity to re-group and launch the highly militarised campaign for the run-off. ZANU PF had not expected defeat in the 29 March election. Mugabe had very confidently set the 29 March election date believing he was well-placed to win the election. In fact, if anyone complained, it was the opposition who cried foul over Mugabe’s unilateralism. The defeat on 29 March was a shock to the system. They needed to recover but this could not have been achieved within the three weeks allowed by the law for a run-off. Therefore apart from fiddling with the results, the delays also facilitated opportunities for extending the run-off, giving ZANU PF a chance for its machinery to carry out an effective campaign. Mugabe complained the party had been weak and uncoordinated. The 27 June campaign was, therefore, taken over by the military, ahead of the political organs of the party.
Did ZANU PF know the 29 March results in advance?
It’s clear from the circumstantial evidence that Mugabe and ZANU PF had advance knowledge of the fact that they had lost the 29 March elections. On 4 April 2008, just five days after the 29 March election, Mugabe chaired a crisis meeting of the Politburo, ZANU PF’s communist-style decision-making body between congress. It was a crisis meeting during which members deliberated over the electoral loss and strategized on how to retain power despite the defeat. The ZANU PF Secretary for Administration at the time, Didymus Mutasa stated: ‘It’s definite there will be a re-run. We are down but not out.” Asked who the candidate would be, he stated: “Absolutely, the candidate will be Robert Gabriel Mugabe – who else would it be other than our dear old man?” He also confirmed that the Politburo had discussed the run-off: “We deliberated the rerun, there will be a rerun if [the] ZEC compels us,” he said. In addition, Bright Matonga, the Deputy Information Minister at the time, was quoted in The Daily Telegraph on 3 April 2008 as saying: “ZANU PF is ready for a run-off, we are ready for a resounding victory. In terms of strategy, we only applied 25 percent of our energy into this campaign… [the re-run] is when we are going to unleash the other 75 percent that we did not apply in the first case.”
These statements were made long before the election results were announced, suggesting they were already privy to the results. In the circumstances, it is fair to say by the time ZANU PF met for their crunch Politburo meeting on 4 April 2008, they already knew that they had lost the election. Furthermore, when sued to release the results, ZEC told the High Court that a party had complained and requested a recount. That the party which requested the recount was ZANU PF was confirmed by the representations of its delegation to the SADC Summit in Lusaka, where they argued that the delay in announcing the results was due to the recount because of their complaints in regard to 21 rural constituencies. But how could ZANU PF have asked for a recount if it did not already know the results and that they had been defeated? It is clear that ZEC had acted improperly in disclosing the results to one of the candidates before the official announcement.
It is also arguable that the delay in announcing the results was intended to facilitate the manipulation of the results to engineer a run-off election, which would give Mugabe a second shot at the presidency. This is certainly how the opposition saw it. Civil society organizations also raised this issue when they argued that Mugabe was trying to delay the run-off for a period of three months to give him and his party time to regroup. A press statement on 5 April 2008 by a group of Zimbabwe civic society organisations read: “[In the event of a run-off,] we urge ZEC to ensure that said run-off is undertaken within 21 days as is outlined by the Electoral Act. This is said because we have it on reliable knowledge that the government has the undemocratic intention of extending the period for the holding of a run-off Presidential election from 21 to 90 days using disputed and autocratic Presidential powers on the pretext that ZEC is ill-prepared to hold it in the stipulated period.”
It is clear that Mugabe and ZANU PF were aware soon after the 29 March election that they had been defeated.
Could Tsvangirai and the MDC have marched to take power?
One of the most discussed questions centres on the approach taken by the MDC in this period. Was this an opportunity lost in the bid to advance democracy in Zimbabwe? Did they do enough to defend their victory? Did they hesitate too much?
Speaking in June 2015, Didymus Mutasa suggested that Tsvangirai and the MDC could easily have marched on State House to take power. He recounted what he did after learning that ZANU PF had lost: “I immediately drove, at speed and alone, from my home in Rusape to State House in Harare. I was terrified, I had to go and protect the President from harm as we were afraid Tsvangirai would do what he said he would do and march to State House. If he had, no policeman would have stopped him. Instead, Tsvangirai went to Botswana.” It is unlikely to have been as simple as Mutasa described, but it is possible that if the MDC had mobilised enough people to defend their victory, the regime might have faced with a far bigger problem than they did after 29 March. As it happened, ZANU PF were able to keep control of the executive and used that space to re-strategise and create an opportunity for a run-off election. There was no pressure from those who had won the election.
Tsvangirai went to Botswana, where new President Ian Khama was a staunch ally. There, he was given temporary refuge. There were fears that his life was in danger. Yet, with hindsight, it is possible that the party was fed misleading intelligence which took the leader away from the scene of action where he would have been more effective as a mobilising force. The other MDC leaders were either arrested or lived in constant fear of arrest and violence. The violent campaign was targeting the MDC’s strategic leaders, in particular it youth leaders. It was during this time that Tonderai Ndira and other MDC activists were killed. Tendai Biti was also arrested, charged with treason and various other offences. Biti had been one of the most vocal and combative leaders in this period, declaring that Morgan Tsvangirai had won the election and that he was the new President of Zimbabwe. With Tsvangirai out of the country, Biti and other leaders in detention, and many other running for their lives, the opposition was left rudderless, which jeopardised the victory’s defence and allowed ZANU PF space to regroup.
The bitter lesson from that period is that the opposition was unprepared for the consequences of electoral victory against an entrenched regime. The expectation was that victory at the ballot box would lead to a transfer of power. But this was a wrong expectation. There should have been clear contingency measures, a plan of what to do in the event of victory. There was need for a plan to defend the victory.
Was Tsvangirai’s withdrawal legally valid?
As I have already suggested, Tsvangirai announced his withdrawal on 23 June 2008, just four days before the run-off election. “May I restate that by way of our letter to Honourable Justice Chiweshe on the 23rd of June 2008, we have officially pulled out of what would otherwise have been a sham election… We remain convinced, as is the rest of the world, that our decision to pull out of the election was in the best interest of the people of Zimbabwe…” stated Tsvangirai in a public statement issued after the withdrawal. In his withdrawal letter, he had written to ZEC:
“I write this letter to advise you that for reasons set out in this letter, it is no longer possible for the holding of the Presidential run-off election set for 27 June, 2008. In my considered view, the conditions presently obtaining throughout the country make it virtually impossible for a proper election envisaged in both the Constitution of Zimbabwe and the Electoral Act (Chapter 2.13) to take place. This being the case, the election scheduled for Friday 27 June, 2008 cannot be an election as provided for by our law and accordingly, it will be a nullity if it were to be proceeded with”.
The major reason for the withdrawal was the gross levels of violence perpetrated on his supporters since his victory in the first round of elections on 29 March. “On 29 March, the courageous people of Zimbabwe voted for hope at the ballot box. It was with a heavy heart and knowing the many challenges we faced that we agreed to participate in the illegally delayed runoff election. It is now generally accepted that the violence we have endured since 29 March is unprecedented. The persecution and harassment of the MDC and pro-democratic leadership is getting worse,” said Tsvangirai in his statement explaining the withdrawal.
I have already described the violence and terror of the period between 29 March and 27 June. There were abductions, disappearance, callous murders, burning of houses and mass displacements of people from their homes. On one occasion, 300 MDC supporters sought refuge at the South African embassy in Harare. “Let me say clearly that there is no discussion about moving forward without our Secretary General Tendai Biti who has been so instrumental in all of our plans and discussions. Tendai Biti is an indispensable asset of the MDC and the people of Zimbabwe. He must be released immediately,” said Tsvangirai in reference to Biti’s detention.
Tsvangirai concluded his withdrawal statement by asking the AU, which was meeting that weekend in Sharm el-Sheikh in Egypt, to intervene to find a solution for Zimbabwe. “Due to the urgency of the situation I’m asking that the African Heads of State discuss this crisis at their meeting this weekend in Egypt,” he said. “We have always maintained that the Zimbabwean problem is an African problem that requires an African solution. To this end, I am asking the African Union and SADC to lead an expanded initiative, supported by the United Nations, to manage the transitional process. We are proposing that the AU facilitation team, comprising eminent Africans, set up a transitional period which takes into account the will of the people of Zimbabwe. The African Union team would lead in the constituting and character of the transitional period.”
However, ZANU PF’s reaction to Tsvangirai’s withdrawal from the presidential run-off election was hostile. Mugabe had just received an open ticket to the presidency, yet ZANU PF were highly critical of and unhappy with the withdrawal. They argued that Tsvangirai could not withdraw from the run-off election. That they went to great lengths to argue that the withdrawal was invalid betrayed the fact it had taken them by surprise and also that it had had an impact. ZANU PF knew the futility of a one-man race. Tsvangirai’s participation was important for legitimacy. The severely compromised ZEC ignored his withdrawal and went ahead anyway. Tsvangirai had already written numerous letters to ZEC in the interim, exhorting them to restrain ZANU PF and ensure a free and fair election, but the electoral body had failed to execute its mandate.
Tsvangirai recognised the futility of taking part in a pre-determined contest. Political scientist, Eldred Masunungure described the 27 June run-off election as characterised by a “brazenly intrusive and expansive role of the military/security complex in the run-off election and the consequent omnipresent fear that enveloped the whole country. The systemic violence and intimidation was so intense as to force one of the presidential candidates to withdraw, paving the way for a one-horse election.” Tsvangirai’s decision to withdraw was accepted by most of his supporters and international allies. Others in the region, normally sympathetic to Mugabe and ZANU PF, also realised that it was a sham election, with both the SADC Troika and Pan-African observers citing the gross levels of violence. International media was awash with horrific images and stories of state-sponsored terror and violence. The withdrawal was, therefore, a pre-emptive move, to inflict a legitimacy deficit on the election.
In the end, the charade was carried out on 27 June. Mugabe was announced the winner with 85,5% of the vote, an improbable rise from the 43,2% he had earned in the first round on 29 March. But it was a Pyrrhic victory.
The question of the legality of Tsvangirai’s withdrawal remains important because current electoral law still has similar provision, which require a run-off election should the first election produce an inconclusive result. The question can be simply stated as follows: Is it legally valid for a candidate to withdraw from a presidential run-off election? Another way to put it is: Is a candidate in a presidential run-off election prohibited from withdrawing from the election?
At the time of Tsvangirai’s withdrawal in 2008, I argued that his withdrawal was not only politically strategic, but also had legal justification. My views have not shifted and I will explain why it was valid.
I have already pointed out that the electoral law required a run-off election to be held if the first election did not produce an outright winner. Section 110 (4) of the Electoral Act stated that “…only the two candidates who received the highest and next highest numbers of valid votes cast at the previous election shall be eligible to contest the election.” This meant the two eligible candidates for the run-off election were Tsvangirai and Mugabe.
The question then was whether these two candidates were locked into that run-off contest so that they could not withdraw at any point. The argument submitted by ZEC and ZANU PF commentators was that Tsvangirai was not permitted to withdraw. Their argument was partly based on the view that the 27 June run-off was not a new or separate election but a continuation of the 29 March election and since Tsvangirai had already submitted and taken part in 29 March elections, he had no right to withdraw. As I argued at the time, this argument was flawed for a number of reasons:
First, the first general election on 29 March and the run-off election on 27 June were two different elections. They may have been part of the general process of electing a President, but they were two separate elections, organised differently and with a different set of candidates. Indeed, the wording of section 110(3) of the Electoral Law makes reference to a “second election” as the run-off election. Further, section 110(4) makes reference to “votes cast in the previous election”. A reading of these provisions leads to one unequivocal meaning, which is that there are two separate elections. In any event, the eligibility criteria for the two elections are different. Legally and practically, the two are separate and different elections.
Second, and perhaps more importantly, section 110(4) states that the candidates with the highest and second highest votes in the first round of elections, “shall be eligible to contest the [run-off] election”. The operative word in this provision is that the candidates are “eligible” to contest. In other words, it is the eligibility of candidates. The word “eligible” is not defined in the electoral law, so we have turn to the ordinary grammatical meaning of the word. The Cambridge Advanced Learner’s Dictionary defines “eligible” as “having the necessary qualities or fulfilling the necessary conditions”. It means that if you qualify and in the context of the run-off election, you qualify as a candidate. However, eligibility does not impose an obligation to participate in the event for which one is eligible. It simply means you meet the necessary conditions, but the choice to take part is yours to make.
One example is the eligibility to register as a voter. You have to be at least 18 years old and have proof of residence. However, it does not mean you are forced to register. Indeed, even if you are registered and are now eligible to vote, you are not obliged to vote. You can choose not to vote, even if the law says you are eligible to do so.
In the case of the run-off election, the two eligible candidates were Tsvangirai and Mugabe. However, just because they were eligible did not mean it was mandatory for them to contest. If, for whatever reason, one decided to withdraw, that would be perfectly legal. There is no justification for compelling a person to contest in an election.
The third argument is based on the constitutional rights and freedoms of the candidate, particularly the right to protection of law and freedom of choice. A candidate cannot be forced to participate in an electoral contest against his or her choice. A candidate should be able to withdraw at any time and to announce their withdrawal to his or her candidates. It does not affect the legality of the election, which can still go ahead. It might affect its political legitimacy and credibility, but that does not mean the election cannot go ahead. If electoral law compelled Tsvangirai to participate and barred him from withdrawing, it would not pass the constitutional test under the Declaration of Rights.
On this basis, therefore, Tsvangirai was perfectly entitled to withdraw from the run-off election. He could not be forced to participate in an election against his will.
As I have pointed out, this analysis is still relevant because the similar rules still apply under the current electoral law. Sections 110 was amended in 2012 to add more detail and clarity. It is not my purpose here to critique the new provisions. It suffices to state that the principle that states a candidate has the freedom to withdraw at any stage of the electoral process remains unaffected. If there were a run-off election in future, and if the same conditions that existed in 2008 happen again, a candidate would be free to withdraw in protest.
Why 27 June still matters
Eight years on, 27 June still matters a great deal. Here are some reasons why that election was important, why its impact is still relevant and it will remain relevant in future:
Sowing the seed of fear
The 27 June election is a key moment in Zimbabwe’s electoral history. While the militarised election campaign affected the outcome, its effects were more far-reaching. A seed of fear was sown during that military-backed campaign and this seed has grown to affect later elections. While there were no similar acts of violence in the run-up to the 2013 elections, ZANU PF benefitted immensely from the seed of fear sown in 2008. The psychological impact of 27 June is seen in how the MDC strongly opposed a June date for the elections in 2013. They feared a June date would evoke in the minds of voters memories of 27 June 2008. Operation Makavhotera Papi and Operation Red Finger may have ended in 2008, but their fall-out has remained permanent, particularly in the rural areas that were affected. ZANU PF did not have to deploy the militarised violence machinery of 27 June, but their mere presence and the memory of what had happened then was enough to control voters. The run-off campaign created what I have referred to as the Panopticon Effect. This means voters think they are constantly being watched and that they must behave by supporting and voting for the ruling party. The fear of retribution for voting wrongly was embedded in the 27 June election and it will be hard to eradicate from the minds of affected generations.
One of the devastating effects of 27 June is that the violence unleashed against voters after ZANU PF’s defeat and the failure of the opposition parties to defend them showed that ZANU PF was more powerful and the opposition could not protect them. In the choice between voting in peace for your own party and danger, a voter is more likely to vote for the former. That means a vote for ZANU PF. The opposition’s failure to protect or defend voters was enhanced during the GNU, when ZANU PF demonstrated that it was in a more powerful position than its coalition counterparts. The opposition parties’ vulnerability means voters cannot trust them with their votes if the parties cannot defend them.
The role of the military/security complex in Zimbabwean politics
The 27 June election demonstrated for the first time that the military and security structures can take active roles in an election beyond the rhetoric of the past. In previous elections, the military had made threats and warnings against voting for the opposition, but they had never really taken an active role in the election campaign. However, the 27 June election was controlled and managed by the military and security structures. These were no longer just threats, but actual demonstrations of power. The far-reaching effect of 27 June is that the electorate learnt first-hand that the military can be involved in elections and this will always remain in voters’ minds. This is why the MDC and other opposition parties have been demanding security sector reforms in Zimbabwe and why the issue remains a key part of the reform agenda.
You can win elections but it’s harder to take power
The 27 June election also demonstrated that winning an election and taking power are too different processes. The MDC won the 29 March elections, most probably including the presidential election, but it failed to take power. ZANU PF was defeated but they were not prepared to transfer power. It is critical, therefore, for opposition parties to strategise carefully around the issue of power transfer. Only focussing on elections is too limited in the broader picture of power politics.
ZANU PF under Mugabe will not yield power through elections – the futility of elections?
More significantly, however, both the 29 March and 27 June elections suggest the futility of elections as an agency for political change and power transfer in Zimbabwe. If there was one moment when ZANU PF should have been removed from power, it was the 2008 elections. But they stubbornly and violently held on to power. The 27 June violent and militarised election campaign demonstrated that ZANU PF was prepared to do anything to retain power. It leaves the question whether there is really any point in participating in elections? Prior to the 29 March elections, ZANU PF showed no appetite for electoral reforms. This attitude has continued to this day and was evident in the 2013 elections, when, yet again, an early election was declared without reforms having been implemented. The 29 March election showed that ZANU PF could be defeated even without reforms, yet it also demonstrated that they would retain power even if they were defeated. This apparent futility in the election process has caused many voters to be despondent and boycott the election process altogether.
27 June is a day that symbolises darkness in Zimbabwean politics. It was the climax of a period of unprecedented electoral violence which followed the defeat of ZANU PF and Mugabe on 29 March 2008. It is day that encapsulates everything that is wrong with elections in Zimbabwe. This article has tried to capture the highlights of that period, in particular the illegalities and improprieties associated with those elections. But it is not just about memory. It is also about using that memory to remind current and future generations of the things that we must avoid and of the things that we must do to make Zimbabwe a better place. For a period of 5 years after 2008, there was not a single election in Zimbabwe, perhaps the longest time since independence when the country never had to engage in the dirty political campaigns. There was relative peace and calm during that period. Still, when 2013 came and elections resumed, the seed of fear that had been sown in 2008 was still evident in the communities. The fact that perpetrators of violence were never brought to account remains a sore point for most victims and a source of fear for those who survived the violence and killings. Zimbabwe is a country in need of healing, not just in respect of 2008, but other violations of the past including Gukurahundi and Operation Murambatsvina. But at present, there is neither the political will nor the infrastructure of healing.