BSR: the resignation of Justice Makarau from ZEC
Last week, the head of Zimbabwe’s elections management agency, the Zimbabwe Electoral Commission (ZEC), tendered her resignation. Justice Rita Makarau took office in February 2013 following the resignation of Justice Simpson Mtambanengwe citing health reasons. The departure of Justice Mtambanengwe was a blow for fair play as he was seen as an impartial hand. The departure means she becomes the second consecutive ZEC Chairperson to leave office before completing a single term. The ZEC Chair is one of the most sensitive and highly scrutinised offices in a country where the credibility of elections has been hotly contested for a number of years. Justice Makarau now returns to her seat at the Supreme Court where she will find more comfort on the bench than in the ZEC chair.
Push or a jump?
It is unclear what prompted Justice Makarau’s sudden resignation. However, it is curious that the resignation came so soon after the dramatic change of government after President Mugabe was forced to resign following an unprecedented military intervention and impeachment bid. Whether there is a connection between those dramatic events and her resignation is unclear and a matter of speculation. Prior to that, there had been no indication of Makarau’s intentions to resign except when she joined the race for the role of Chief Justice after the retirement of the now late Chief Justice Godfrey Chidyausiku. If she had got the role, she would have left ZEC earlier this year.
At the time of the selection of the new Chief Justice, media reports and the political grapevine suggested that Justice Makarau was the favoured candidate of the G40 faction in ZANU PF, which eventually lost out to the Lacoste faction which is now in charge of the country. Was she pushed or did she jump of her own accord? Would she have resigned if the events of November had not happened? These are important questions. It is hard to see why a person who was in the middle of steering an important and revolutionary voter registration system would suddenly throw in the towel. If she was pushed on the basis of alleged political alliances, it would qualify as part of a purge of the vanquished faction and that could be ominous for others who are similarly accused. It would be a worry if she was pushed given that the independence of her role must be safeguarded.
However, it may also be that given her circumstances and alleged alliances, she might have felt uncomfortable continuing in her role under the new administration. Finally, her departure may also be on account of principle; that as a head of the electoral agency, she did not agree with the manner in which the elected government was changed. But this is all speculation, perhaps one day she will reveal the real reasons behind her departure.
Nevertheless, her resignation creates an important vacancy in the electoral machinery which needs to be urgently filled. This is fundamental given that the country is implementing and Biometric Voter Registration system which is set to create a new voters’ roll. This process needs strong leadership. Who replaces her as head of ZEC and how the replacement is chosen matter a great deal because it could have an important effect on the credibility of the electoral process which culminates in the election in 2018. It is regrettable that for the second successive election, unless, the new head is drawn from the current crop of ZEC commissioners, the elections body will be headed by a newcomer with little or no experience in running elections. Makarau’s lack of experience in 2013 was palpable and it meant she had to rely on old hands like Tobaiwa Mudede and Joyce Kazembe, whose impartiality was questioned by the opposition.
On the other hand, there are those who have been frustrated by Makarau’s leadership at ZEC and will be happy to see her leave. The opposition parties and parts of civil society were dissatisfied with Makarau whom they thought was timid at best in the face of former President Mugabe and ZANU PF and at worst, partial towards them ahead of the opposition. She often tried too hard to explain government’s failure to support ZEC with resources when she should have been demanding such support. She failed to rid ZEC of security-related personnel, a long-standing complaint of the opposition parties and civil society stakeholders. She struggled to rein in Mudede who refused to give up the electronic voters’ roll to opposition parties in 2018 contrary to legal requirements. The BVR system and a new voters’ roll would have been an important achievement of her tenure but now she leaves without seeing its full completion.
However, while her departure opens up an opportunity for a new person, there is no guarantee that the replacement will be any different or better than Makarau. If Makarau departed because the new administration had no confidence in her, the new head could be someone who is more amenable and therefore, partial towards the new administration. That could be even more ominous and disastrous for the opposition. At least with Makarau, they knew what they were dealing with and had established some working relationship over the past 4 years. Now they have to start afresh, probably with a more hostile person in charge.
For the new administration however, the credibility of the next elections is fundamental to its agenda for economic recovery and stability. Credible elections will confer legitimacy to the new administration. The electoral process begins with the appointment of the head of the elections body. If it is skewed and partial, it will taint the electoral process before the actual elections are even held. It is therefore important, at the outset, to ensure that the appointment of the ZEC Chair is not only in accordance with the Constitution, but that it is also qualitatively fair, transparent and credible. Whoever is chosen must be someone whose name, stature and experience inspire confidence among the electoral players. For all her faults, it was hard for the opposition to cry foul over Makarau’s performance in 2013, because they were part of the process that led to her selection. In this regard, Mnangagwa could learn from Mugabe, and include the opposition in the selection process. For its part, the opposition should lobby government for an inclusive role in the selection of the new ZEC chair.
What is the constitutional process of appointing the ZEC Chair?
It is important to note that this will be the first time that a chairperson of ZEC will be appointed under the 2013 Constitution. Makarau’s appointment was under the terms of the Global Political Agreement which governed the running of the Inclusive Government. That process required consultation between the political principals in order to find a mutually agreeable candidate. This is why Makarau was a product of consultation and consensus. However, given the opposition’s complaints over Makarau’s performance, it also demonstrates that consultation and consensus do not guarantee good performance by the chosen candidate. The selected candidate might turn out to be the opposition’s worst nightmare.
According to section 238(1) of the Constitution, the chairperson of ZEC is “appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders”. The person must be a senior lawyer who is either a serving judge, a former judge or someone who is qualified to be a judge. This criteria is too limiting – there is no reason why non-lawyers can’t be appointed to the role of ZEC Chair. One can think of senior members of the clergy and other professionals who would perform this role with greater efficiency. However, as it is, the role is restricted to senior lawyers. This means President Mnangagwa is the appointing authority, with the Judicial Services Commission (JSC) and the Committee on Standing Rules and Orders (CSOR), providing limited checks and balances in the appointment process.
Appointment “after consultation”
The key words in section 238(1) are that the president makes the appointment “after consultation” with the JSC and the CSOR. This meaning of this important phrase is defined in the section of the Constitution. Section 339(2) defines the process to be taken whenever any appointing authority is required to act “after consultation” with anyone else:
First, the person or authority must advise the other person, in writing, the proposal and provide the other person with enough information to enable them to understand the nature and effect of the proposal
Second, the other person must be given a reasonable opportunity to make recommendations or representations about the proposal
Third, the appointing authority must give careful consideration to any recommendations or representations made by the other person.
Fourth, the appointing authority must make a decision but he is not obliged to follow the recommendations made by the other person. In other words, the final decision is entirely at the discretion of the appointing authority.
Finally, according to section 238(3) where the appointment of the ZEC Chair is inconsistent with a recommendation of the JSC, the President is obliged to inform the CSOR.
The overall effect of this process is that the President is the appointing authority and although the JSC and the CSOR have a role in making recommendations, ultimately, the decision is in the hands of the President. It would have been different, and better, if the President was required to act “on the advice of” the JSC and the CSOR. This is because the words “on the advice of” are strictly defined in section 339(1) to mean that the appointing authority is obliged to follow the given advice. He cannot ignore it. As it is, however, President Mnangagwa is only obliged to consult the JSC and the CSOR but has no duty to follow their recommendation.
It has to be admitted that this is one of the great weaknesses of the constitution, in that it gives to a person who is likely to be a candidate in an election so much power to choose the head of the body that runs the elections. It is an unfair provision which allows one player to select the umpire where the rest of the contestants have no say whatsoever. It is an unfair advantage which could lead to the capture of the head of the elections body. The process now is weaker and less inclusive than the process that was used under the GPA. Unfortunately, efforts to have a more consultative process with stronger checks and balances in these appointments was resisted.
What can be done
However, this can be avoided if President Mnangagwa chooses to show a new style of inclusive and consultative leadership. He can surprise his critics by taking a more consultative approach which allows the other political actors to have a say in this process. It is not unconstitutional to consult the opposition parties, civil society, business and other groups in the process of selecting the new ZEC Chair. If anything, it would give confidence to everyone looking at Zimbabwe with a keen eye, including foreign investors who want to see fairness and transparency in the way business is conducted in Zimbabwe. A multilateral as opposed to a unilateral approach is likely to yield more dividends for the country. The President is the appointing authority and has no constitutional obligation to follow the advice that he is given, but it would lend a lot of credibility to the electoral process if he chooses an inclusive approach.