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Big Saturday Read: Losers’ consent and democratic legitimacy

September 22, 2018

 

As President Mnangagwa began his address on the occasion of the opening of parliament, opposition parliamentarians began to walk out of the legislative chamber. They went outside singing songs of protest. The parliamentary walk-out generated a lot of debate. It was criticised by ruling party supporters as petty and praised by those on the opposite side of the political aisle as a justifiable show of protest. The incident revealed the deep divisions among Zimbabweans, weeks after an election whose outcome is still disputed.

 

More significantly, however, the walkout symbolised the opposition’s persistent refusal to concede defeat in the presidential election, which it claims was rigged. The reaction of the ruling party supporters revealed great discomfort caused by this refusal. This is important because the response of both declared winners and losers in an election has implications on the democratic legitimacy of the emerging political authority.

 

In normal situations, where a winner has been declared, the expectation is that the loser would concede defeat. Some political scientists call it “Losers’ Consent”. The consent of the loser in an election goes a long way to support its democratic legitimacy. By contrast, withholding consent undermines or at least raises doubt over the democratic legitimacy of the election and the political system.

 

In many elections across the African continent, the outcome of elections is often contested by the declared losers, who consequently refuse to give their consent to the election outcome. This becomes a new battleground over which the ruling party has no leverage. It cannot compel the declared loser to give consent. The strongest line of defence for the winner is to show that the loser has no ground to stand on and that their refusal to concede is motivated by malice. This is problematic, however, where third parties, such as international election observers back the concerns raised by the declared loser.

 

This explains why the political contestation has continued beyond the election. The election failed to resolve the critical question of democratic legitimacy of the political authority which it was meant to deal with conclusively after last year's coup. If Nelson Chamisa and the MDC Alliance had given their consent to the election outcome, the debate would have ended. The issue of democratic legitimacy of the Mnangagwa administration would not arise. However, Chamisa and the MDC Alliance felt aggrieved both by the conduct of the election and the legal process used to resolve the dispute.

 

For its part, ZANU PF is frustrated by the opposition’s refusal to give its consent. This frustration is because they know the withholding of consent undermines its administration’s democratic legitimacy and without it, it is difficult to open the doors of support that it needs to address the myriad of challenges in Zimbabwe. The opposition is fully conscious of the value of its consent to its rival. Since the losers’ consent is considered critical to the establishment of democratic legitimacy, the opposition’s consent has value to Mnangagwa and ZANU PF. It is a situation where the ruling party has state power but is weak on democratic legitimacy, while the opposition has no state power but holds an instrument that can be used fix the legitimacy deficit.

 

Democratic legitimacy

 

There is a view that electoral democracy is essential to the establishment of legitimacy. The legitimacy of a political authority derives from the consent of the governed, a principle which is stated in our constitution. When a political authority is legitimate, it means it has the monopoly to make and enforce rules within a specific jurisdiction and the citizens of that jurisdiction obey the rules without the need for coercion.

 

In any event, a legitimate political authority would have the monopoly to apply coercive measures in order to enforce those rules. For such legitimacy to be democratic, the political authority must have been selected in accordance with democratic processes, rules and principles. In other words, there is democratic legitimacy when democratic procedures are followed in order to achieve an outcome. A decision is legitimate if it has been reached through procedures that satisfy democratic standards. This is important because it is possible for a political authority to claim legitimacy even where it has been selected through non-democratic means. King Mswati of Swaziland is an absolute monarch but he is the legitimate leader of the kingdom. What he cannot claim is democratic legitimacy.   

 

Elections

 

Probably the most essential of democratic processes that confirm democratic legitimacy is the election. It is the principal mechanism to select the political authority in a democratic system. In order to confer democratic legitimacy, elections must satisfy certain qualities which include Political scientist, Staffan Lindberg has picked three key qualities as including: participation, competition and legitimacy.  

 

Participation

 

On participation, Lindberg says a high voter turnout and opposition participation would tend to support democratic legitimacy of an election. By contrast, a low voter turnout and boycott of elections by the opposition would undermine their democratic legitimacy. This is why Morgan Tsvangirai’s boycott of the 2008 presidential run-off election was key in eroding its democratic legitimacy. Indeed, most peers around the world regarded the June 27 2008 as a sham.

 

A Government of National Unity (GNU) was soon cobbled up in order to fix the deficit in the resulting political authority’s democratic legitimacy. This was because the losers’ consent was widely backed by third parties and the declared winners, Robert Mugabe and ZANU PF, had no choice but to agree to share power with the so-called losers. History was repeating itself as elsewhere on the continent, a similar situation had played out in Kenya the previous year.   

 

There was no opposition boycott in the recent election and the voter turnout was very high, factors which would tend to support participation. However, the exclusion of the diaspora from voting was damaging, with some external observers raising concerns over this exclusion. Lindberg also warns that the presence of the “old guard” from the authoritarian regime can affect the democratic legitimacy of the election. “If current leaders of political parties previously assumed leading positions in authoritarian regimes that placed them above the law, this could be taken as a factor that degrades the democratic quality of the electoral process,” writes Lindberg. While Mugabe was no longer a candidate, ZANU PF was essentially the residue of his authoritarian regime. More critically, the military had a clear presence and interest in the elections. All this affected the democratic qualities of the election.   

 

Competition

 

On the issue of competition, Lindberg says indicators include the share of the votes and seats won by the winners and losers respectively. On the issue of competition in the recent election, international election observers gave a mixed view. On the one hand, the EU described the elections as having been peaceful and competitive but also noted that the playing field was uneven. The bias of the state media and lack of transparency by the electoral authority were particularly concerning.

The unfairness did not mean however, that the elections were not competitive. It is possible for elections to be still competitive in an unfair environment. In Gambia, two years ago, the opposition won in a competitive, albeit unfair election.

 

Legitimacy

 

It is on the issue of legitimacy, where the issue of losers’ consent comes in. In this case, according to Lindberg, acceptance of the electoral outcome is seen as a key indicator of legitimacy. Here, Lindberg says, “whether the losers accepted the results indicates the extent to which political elites view the elections as legitimate”. Furthermore, whether or not the elections were free and fair is a critical test of their democratic quality and legitimacy. The “free and fair” test, which is fluid,  is one that sets out what is democratically acceptable and what is not. Losers’ consent is important because it signifies agreement that the election was free and fair.

 

It is important, therefore, to understand why declared losers might refuse to concede defeat.  

 

The reaction of the losers to the election outcome can be motivated by various factors. Some opposition leaders may posture simply to undermine the winners. Others may be genuinely aggrieved by the unfairness of the electoral processes. Where there is mere posturing, it can be easily dismissed. However, where the grievances are backed by others, such as domestic and international election observers, the withholding of consent may affect the legitimacy of the political system.

 

One of the reasons why declared losers refuse to give their consent is around the poor and biased administration of elections. This, at any rate, seems to be a key factor influencing the position taken by Zimbabwe’s opposition. The administration of an election also has a huge effect on democratic quality and consequently, on democratic legitimacy. If elections are administered fairly, transparently and efficiently, contesting parties are likely to consent to the outcome.  If on the other hand, the administration of elections is unfair, biased, opaque and inefficient, the declared losers are likely to withhold their consent to the outcome.

 

In  most of the established democracies, the issue of losers’ consent does not arise primarily because the processes are often seen to be free and fair by all contesting parties. No electoral system is perfect but even where there are challenges, they are regarded as exceptions and the system on the whole commands respect. Because the systems command respect, it is the tradition in established democracies that losers don’t even wait for the official declaration of the result before they concede. The phone call to the winning candidate once it becomes clear that the win is unassailable. This is because there is transparency and everyone is satisfied with the rules of the game which gives them confidence that they can try again next time and overcome.

 

However, in countries that are still struggling to establish democracy, election outcomes are usually contested. This has been the case in Zimbabwe for many years. The declared losers usually refuse to concede defeat. It is important to understand the reasons why this happens. Most of the reasons relate to the unfairness of the electoral system which undermines the freeness and fairness of elections. In such countries, there is systemic bias towards the ruling party which makes it an uneven contest. The refusal to concede is costly to the winning party because it undermines the democratic legitimacy of its government.

 

This is why the role of ZEC in the pursuit of democratic legitimacy is critical. The opposition raised several complaints against ZEC in the run-up to elections. Most of the complaints revolved around ZEC’s lack of transparency and its apparent bias towards the ruling party.

 

By and large the opposition concerns found backing among election observers, who urged the electoral authority to address them. Some issues included the procurement, design and distribution of ballot papers. The worst instance was when ZEC changed the result of the presidential elections. It was not only illegal but it also raised doubts over ZEC’s competence and the credibility of the result. The conduct of ZEC affected the democratic quality of the election and shaped the response of the declared losers. They refused to consent to the declared defeat because they did not believe the elections administrator had been fair, transparent and impartial. Future elections are likely to suffer the same fate unless ZEC undergoes fundamental reform.

 

International community

 

The lack of democratic legitimacy matters because it affects how other nations deal with or relate to the country. That the US amended and updated its sanctions legislation (the Zimbabwe Democracy and Economic Recovery Act) was probably the biggest show of disapproval of the elections by a key voice in the international community. The European Union was also critical of the elections, which they described as being conducted on “uneven” ground. Lately, Britain has suggested that it is prepared to back Zimbabwe’s bid to mend relations with the international financial institutions such as the IMF for economic recovery but it has also qualified it with demands for political reforms. The Chinese and Russians backed the elections but they have never been critical of Zimbabwean elections before. It was the Western observers, invited for the first time since 2002, whose approval, the Zimbabwean government wanted the most. That there was no unequivocal support and endorsement of the elections was a big blow which sent negative signals on democratic legitimacy.  

 

Legitimacy through performance

 

Nevertheless, as we have said before, while there may be doubts over the government’s democratic legitimacy, it does have an opportunity to recover lost ground through its performance. There is a school of thought which says that legitimacy gained through electoral democracy is overrated and that instead, legitimacy is gained through performance of the political authority. Here, a distinction is drawn between input and output legitimacy. In other words, it is not how a political authority assumes power that matters but how that power is used once it has been acquired.

 

In this regard, while the democratic legitimacy of the Mnangagwa administration is being questioned, it may salvage legitimacy through its output. It faces many economic and social challenges which have stalled many people’s lives and businesses. If the government finds solutions to the massive economic challenges in the country, it might change the opinion of those who are questioning their legitimacy. A solid economic performance may neutralise the effect of the opposition’s refusal to consent to the electoral outcome.

 

Mnangagwa is aware that performance will generate legitimacy. However, his current trip to New York is key indicator of his difficult situation. He is at the United Nations as the legitimate head of state and government of Zimbabwe, yet since he is one of the people who are under US targeted sanctions, like Mugabe before him he is restricted in his movements in the US. On the one hand, his formal legitimacy is recognised, yet on other hand, it is questioned on account of the democratic deficit. It means he will continue to face the same challenges as his predecessor. 

 

On the domestic front. It remains to be seen if the policy and practice of his administration will differ much from the Mugabe era. However, his Cabinet appointments and changes to the top tier of the civil service administration suggest an intention to bring in some new blood while keeping the loyalists comfortable. The retirement and redeployment of several senior civil servants who had been in government for decades and the recruitment of new faces is a good indicator of changes to the human factor in governance.

 

Nevertheless, it’s important to note that the arrival of new personnel does not always translate into better performance as previous examples have shown. While people thought the departure of Justice Makarau from ZEC was a good thing, it turned out that her replacement was not any better. Change of leadership in the judiciary has not made the bench more independent and impartial. A new governor at the Reserve Bank of Zimbabwe did not make things better. Therefore, while Mnangagwa’s broad changes at the senior levels are to be welcomed, it is important not to overemphasise them because they are not, on their own, the panacea to the country’s problems. Zimbabweans must hope that Mudede’s replacement will be more competent and willing to be guided by the law.   

 

What to do?

 

The withholding of consent to an election outcome is by no means a new phenomenon in Zimbabwean elections. It has been costly to the winning party and the nation. Only in 2008, when it was fixed by a GNU, were the costs mitigated.

 

One thing for sure is that it’s unlikely losers would withhold consent if the electoral system was free and fair. Even if they tried to withhold consent unreasonably, it would be dismissed because everyone would see that it has no foundation. Here, third parties’ views, such as election observers matter a great deal. The current situation means that both parties are locked in a post-election battle in which there is no clear winner, but potentially many losers across the country.  

 

The election was supposed to be a bridge between Zimbabwe’s past and future. The battle over losers’ consent is indicative of the election’s failure to achieve this objective. It is important to close the gap between the parties in order to generate democratic legitimacy. The Mnangagwa administration might hope to generate legitimacy through a solid economic performance, but this is not going to be easy in light of the impediments that come with a shortage of democratic legitimacy. For example, in negotiations with international financial institutions, it has to overcome tough hurdles such as ZIDERA. Some countries might help but knowing the country’s desperation, such support will come at great cost.  

 

It is also in this context that Mnangagwa’s proposal to create an official role for the Leader of the Opposition must be located. While it had been rumoured before, it was confirmed this week by Mnangagwa in an interview with CNN’s Christiane Amanpour. The idea of formalising a role for the Leader of the Opposition is borrowed from the British parliamentary system which is also replicated in various ways in some parts of the Commonwealth. Looking at it with long lens, it could provide an incentive for losing candidates to concede defeat since it mitigates the effects of the winner-takes-all system of a presidential system where losers literally lose everything and are forced to fight for political survival.

 

However, it is these material incentives which might also work against this proposition at this particular juncture. Politically, it might be seen as a “bribe” to placate Chamisa and the MDC Alliance, and thereby buy their consent. The political battles in the opposition mean leaders have to tread carefully lest their expose themselves to accusations of selling-out or being petty.

 

There is also the important question of how the leader of the opposition would relate to the head of state and government. In Britain, where the role of Leader of the Opposition is recognised, the system works because the Prime Minister is also a member of parliament. Every Wednesday, the Prime Minister attends parliament at Westminster to answer questions and debate with the Leader of the Opposition. In this way, the head of government and their opposite number in opposition engage robustly and openly. In our system, the president is not a member of parliament and is not even obliged to attend parliament. Creating a role for the Leader of the Opposition without the associated mechanisms to make it work would appear like tokenism.

 

My view is that instead of piecemeal proposals or amendments to the constitution, there is need for a robust package of political reforms to avoid a deficit in democratic legitimacy in future. Such propositions cannot be dangled as a carrot offered by one side to the other. Such an approach generates resistance. The ruling party must demonstrate that it is not merely creating a facade in order to buy democratic legitimacy. This calls for serious and respectful engagement between the major political actors.

 

The opposition knows the value of its consent to the government which is why it is withholding it. On the other hand, the government knows the value of the losers’ consent, which is why the ruling party has been demanding it. At some point there have to be trade-offs. The opposition cannot afford to have the next election conducted on the same terms and conditions as the last one. It has to extract real and substantial political reforms to the system long before then. The ruling party cannot afford to continue building on a foundation that is lacking democratic legitimacy. It has to be prepared to pay the price for the consent that it is seeking from the opposition, because their concerns are not without foundation.

 

waMagaisa

 

wamagaisa@gmail.com

 

 

Useful materials:

 

Staffan I. Lindberg (2004) The Democratic Qualities of Competitive Elections: Participation, Competition and Legitimacy in Africa, Commonwealth & Comparative Politics, 42:1, 61-105

Bo Rothstein, Creating political legitimacy: Electoral Democracy versus Quality of Government American Behavioural Scientist 2009: 311

Pippa Norris, Why Electoral Integrity Matters, 2014 (CUP)

J. Elklit & A. Reynolds, The Impact of Election Administration on the Legitimacy of Emerging Democracies: A New Comparative Politics Research Agenda, Journal of Commonwealth and Comparative Politics Vol. 40, 2002




 

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