When the Elders came to town
So the Elders have come and gone. The trip didn't last long, but its effects will live long after it. Behind them, they left a trail that has seen the ruling party and its propaganda machinery getting hysterical at what they believe to be validation of their standpoint and a dismissal of the opposition's electoral demands.
Indeed, echoes of the Elders' words and both the excitement and uproar they caused among Zimbabweans can still be heard in all corners of the electoral landscape. They said a number of things, but by far the lasting impression that now forms the narrative is that they dismissed the opposition’s electoral demands as “unreasonable”. it has excited the ruling party and appalled the opposition.
The Elders may not have anticipated that their pronouncements would generate so much excitement or that they would be employed as they have been in the current political dynamics. If they had, maybe they would have been more cautious and more specific. All of a sudden, ZANU PF and the overtly partisan State media have found validation for their long-held dismissal of opposition concerns over electoral manipulation and the failings of the electoral authority, the beleaguered Zimbabwe Electoral Commission (ZEC). Also, ZEC and its supporters have found justification to trivialise and dismiss opposition demands as “unreasonable”.
Now therefore, a ruling party and electoral authority which should be under pressure to play fair and reform just days before a crucial election have become emboldened, believing that their conduct is backed by the Elders. This is a most unfortunate consequence because the electoral process in Zimbabwe still leaves a lot to be desired.
However, it is important to have dialogue with the Elders and the many guests who have come to Zimbabwe to observe our elections so that they have a better understanding of the context of opposition concerns. This election is not taking place in an historical vacuum. There are certain historical nuances that ought to be understood so that the reaction and demands of the opposition can be better appreciated.
So here goes an account that may help to shed more light into the demands that the opposition are making and why the formal system has failed them.
When it comes to Zimbabwe's electoral system, the opposition is faced with Hobson’s choice, that phenomenon which means one has no choice at all, even though appearances suggest otherwise. An alternative phrase would be 'take it or leave it'. It is said that a 17th century English livery stable owner, Hobson had a firm rule that a customer would either take the horse nearest to the stable door or none at all. It was no choice at all for the customer. We owe the phrase to the gentleman and his business practice.
When they have a grievance with the electoral system, the opposition is usually told to approach the courts of law. Hence, the Zimbabwe Electoral Commission (ZEC), President Mnangagwa, the Elders Group and SADC have all directed the opposition to the courts of law. Lost in these recommendations is the fact that the opposition’s grievances extend to the judicial system – in fact, the grievance is that the entire system is biased towards ZANU PF and that there is no fairness.
The usual recommendation to approach the courts is a classic case of electoral formalism. There is a formal process and however unfair it might be, it must be followed. This ironic, because the aggrieved participant may not trust the formal process because it is systematically skewed against them. To put it more bluntly, a party complaining of a rigged electoral system is asked to approach the rigged system to seek redress. It places disaffected parties in a vicious cycle.
The frustration brought by this vicious cycle causes disaffection which can create conflict. At least SADC demonstrates some understanding of this problem. It states, in its latest statement on elections in Zimbabwe, “Democratic elections, if properly managed and when anchored upon consensus-based rules and international human rights principles, can contribute significantly to peace and stability. Conversely, poorly managed electoral processes can serve as triggers of conflict”.
This is an important observation from the regional body. When a long-suffering people find themselves locked in that cul-de-sac, they might be forced to employ unconventional measures to defend their democratic rights and this can generate conflicts with the State machinery.
It is important, therefore, when parties are advising Zimbabweans, to identify the source of the demands that are being made by the opposition instead of passing quick and superflous judgments on whether or not those demands are reasonable. These are determinations that must be made taking cognisance of the deep historical context in which those demands are being made.
For that reason, it is important to understand that the complexities of the political situation in Zimbabwe and the demands by the opposition predate last November’s coup. They are not spur-of-the-moment demands that have no history. It is therefore not unreasonable to demonstrate that long-held demands have not been fulfilled. The departure of Mugabe did not change the system over which he presided. It is still there, firm and intact.
In fact, even a fleeting look at the history of elections will show that the opposition’s electoral demands are not new. The systematic bias of ZEC, the referee, is not a new phenomenon. demands for reform are being resisted by the same system that has always resisted them since Mugabe was in power. When someone tells the opposition that they should not make demands that cannot be met, there is a risk of condoning the unreasonable and unlawful resistance by ruling parties to meet electoral demands.
If those demands cannot be met because it's a few days before the election, it is not the problem of those raising the demands. Rather, it is the fault of those who have long-resisted them. The proper thing so do in such circumstances is to call the system to order for not addressing grievances in due time. That media reforms were required has been in the constitution since 2013 and even election observers made those recommendations after the 2013 elections. It is not unreasonable to demand those reforms to be met.
The uneven path to the courts of law
The notion that an aggrieved party must approach the courts makes sense in a jurisdiction in which the judiciary independent, reliable and professional. It does not work in jurisdictions where the judiciary or a substantial part of it is captured by the ruling party.
Already, as a general rule, judges are generally reluctant to interfere in political matters, particularly where the outcome of a presidential election is at stake. The Kenyan situation last year, in which their Supreme Court annulled the presidential election result counts as a rare exception to a common trend where courts generally uphold results. The burden to be discharged in order to annul a presidential election result is very heavy.
In any event, courts, like other institutions of the State are susceptible to the dictates of realpolitik. More often than not, they sway along with the political winds, especially in times of fundamental political changes. Courts are wary of the implications on peace and stability of their decisions in politically-charged matters. When weighing the implications of its decision, the court might prefer to err on the side of caution. In the case of Zimbabwe, it would be preposterous to ignore the fact that there was a coup last November. The courts are fully aware of these political circumstances and so far their decisions where the coup has been challenged have been in favour of the status quo.
I have it on good authority that some senior judges in Zimbabwe were surprised by the decision of their Kenyan counterparts. A post-election challenge is a near-impossibility, forcing parties to fight for reforms and fair play before the election. This explains the agitation in opposition circles. They know their chances in the courts should the election be rigged for the ruling party are almost non-existent.
Lack of judicial independence
The situation is more difficult in a country where the judiciary lacks independence and there is a latent clash between the judiciary and the opposition. In such a scenario, the opposition is literally appealing for help from the same system that it is fighting. It is easy to skirt around this issue but there is no love lost between the top echelons of the judiciary and the opposition. in Zimbabwe The Mugabe regime turned the judiciary in its favour at the start of the land reform exercise in 2001, when it purged the old Bench and brought in new judges who were favourable to its ideology.
The tensions between the judiciary and the opposition increased during the constitution-making process. In that process, the opposition wanted a total overhaul of the judiciary, which would have affected most members of the current Bench. The newly created Constitutional Court would have had a new set of judges. This would have helped to transform the judiciary. However, this plan was heavily resisted by the judges, with the help of ZANU PF. Although there is a new Chief Justice, the composition of the court has not changed much. It’s an almost impossible situation for the opposition – submitting political complaints to a hostile Bench.
When foreigners come to a country like Zimbabwe and prescribe that the opposition must approach the courts, they do so in the belief that the judicial system is fair and independent and that it will dispense justice with impartiality. They may not be aware of this complicated history. If they know, they simply choose to ignore it. There have been many accounts over the years showing how the judiciary has compromised the electoral system. A useful one is a report by Solidarity Peace Trust which dates back to 2005 when it focused on “the role of the judiciary in subverting the will of the electorate”. It’s worth reading for those who want to understand the history of judicial bias and the genesis of mistrust between the opposition and the judiciary in Zimbabwe.
Some of the challenges faced by opposition in dealing with the judiciary in political matters are as follows:
First, they face the hurdle of access to present their case. Even where a case is urgent, the judge might just decide that it is not urgent. An appeal might be successful but valuable time would already have been lost. When the main opposition’s dispute over use of the party name came to court back in April, the High Court judge ruled that it was not urgent. It went to the Supreme Court which held that it was urgent. But the whole process was taking so long that the party was forced to take down the case to be heard on the normal roll to avoid distractions in the current campaign. This is a matter that should have been solved before the Nomination Court sat in June.
Second, even where the matter is heard on an urgent basis, the judge might decide to reserve judgment. There is no indication as to when the result would be announced which makes a mockery of the urgency of the relief demanded. In one recent case, a civil society organisation applied for an urgent order to be given the provisional voters roll by ZEC. The judge reserved judgment for more than a week despite the urgency of the relief sought.
Third, even where the aggrieved party wins, the State will usually press the appeal button. The ordinary effect of an appeal is to suspend the order, which delays the relief sought especially in urgent matters. In a recent case, the President of the Chiefs Council was ordered to retract his politically-charged statements in which he supported ZANU PF. He ignored the order until the last possible moment whereupon he made an appeal, thereby suspending the order. All this is perfectly legal, but it can also be abused to delay and frustrate the legal remedy. By the time the chief’s matter will be heard by the Supreme Court, the elections will be over.
Fourth, even where an order has been granted, the State or relevant party might just act with impunity and ignore it. Despite numerous cases where Ministers and senior government officials have ignored court orders, no-one has spent a night in jail for contempt of court. No wonder Ministers don’t take the courts seriously.
Fifth, sometimes the order might be granted by a court but it will be a mirage in that it will appear like a victory when in fact it can be easily and lawfully thwarted. This is where the order recognises a right but that right is taken away with the other hand. A couple of years ago, Justice Chigumba was hailed for ruling against a police ban on citizen demonstrations in Harare’s CBD. However, on closer inspection, the order actually gave police leeway to maintain the ban while they corrected their actions. In the end, the police purpose to ban demonstrations was achieved even though the order seemed positive.
Sixth, in an area where the courts have no control, the executive has used presidential amnesties to protect perpetrators of political violence. We have previously articulated the problem of presidential amnesties after elections and how they fuel impunity.
Finally, sometimes courts simply sit on judgments or the legal process is so slow that by the time the judgments arrive, they will be utterly useless to the litigating party. One classic and notorious case is where Morgan Tsvangirai petitioned against the 2002 presidential election result. There were inordinate delays as the judge failed to give reasons for a prelimirary ruling. Those reasons were never given, despite repeated requests. A summary of that case can be seen in this judgment of the Supreme Court.
When Tsvangirai died in 2018, 16 years after he brought the petition, he was still waiting for the judge's reasons. The judge in that matter, Justice Ben Hlatshwayo, is now a member of the Constitutional Court. I only cite the matter to show how the wheels of justice turn very slowly in Zimbabwe's courts, especially where the opposition parties are concerned. When people judge the reasonableness or otherwise of opposition demands, they must understand that this is the historical context in which the opposition is making its demands.
Also shown in the 2005 report of the Solidarity Peace Trust, some election petitions filed by MDC candidates after the 2000 parliamentary results were not finalised by the courts by the time of the next elections in 2005. By that time the ZANU PF MPs had already served their full terms and they were preparing to contest in the 2005 elections. The outcome of those election petitions was therefore pointless.
These are the challenges that opposition parties challenging the State and the electoral authorities have to face. Foreigners who advise the opposition to go to court may not understand these challenges because they see the judicial systems as they work in their jurisdictions. There, probably the justice system does work, efficiently and professionally. This is not the case in Zimbabwe where public institutions, including the judiciary have been compromised.
The problem was summed up by a former judge who promptly resigned after giving a judgment which was critical of government manipulation of the courts. In the case of S v Hombarume in 2001, Justice Gillespie wrote, “Manipulation of court rolls; selective prosecution; and the packing of the Bench of the superior courts are techniques which provide a government determined to do so with the opportunity to subvert the law while at the same time appearing to respect its institutions ...” It was written at a time when ZANU PF was purging the superior courts. The packing of the Bench afterwards has had far-reaching effects which are still being felt today in the justice delivery system.
All these factors mean the opposition faces Hobson’s choice when it comes to grievances over the electoral system. They are told to go to the courts of law, which, for good reason, -they do not trust. Likewise, when it comes to the election itself, the opposition faces Hobson’s choice. They know the system is rigged but boycotting would not solve the problem. Locked in this choice-less scenario, it is not surprising that some end up contemplating other solutions outside the formal processes. That’s what happens when the formal processes are rigged.
As for opposition demands, they have clear historical context which must be understood by those who judge their reasonableness. Fleeting judgments that lack historical nuance only fuel resentment and contempt among oppressed peoples of this world. When Zimbabweans who face a contrived system look to foreign actors, it is because they are pleading to be heard, since local authorities are intransigent. They don’t expect fleeting judgments that their grievances are “unreasonable” which only serves emboldens the repressive State and its machinery. As SADC helpfully pointed out, “poorly managed electoral processes can serve as triggers of conflict”.
It is not political actors who incite the people. Poorly managed and unfair electoral systems do.