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December 29, 2019

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Big Saturday Read: Power lies in the hands of the people

January 5, 2019

 

The people have power, but they don't know that they do. They think power lies with the politicians. They are merely renting it. The people have to understand that they are the landlords and the politicians are the tenants. This BSR explains what should be common knowledge but is often withheld from the people.

 

That the New Year has begun on a sour note is not by itself a major surprise. The numbers may have changed, but the circumstances have not. There are a number of crucial questions which have emerged over the years. Some answers of which remain elusive. Others are plain, the trouble being that they are ignored. 


What is the relationship between the citizens and the State?


People do not seem to appreciate the power they wield over the State. This is probably because the State is often presented as the one that wields power without the source of that power being made clear. It is also because the State exercises control over policy and law-making functions but more importantly, over the coercive apparatus, such as the army, police, prisons and intelligence agency. With this manifestation of authority, the State does indeed wield power. 


However, unbeknown to most citizens, this power emanates from them. The State derives its power from the people. This fact is recognised in our Constitution. Section 2(f) states that one of the principles of good governance is "respect for the people of Zimbabwe, from whom the authority to govern is derived." Furthermore, section 88 provides that "Executive authority derives from the people of Zimbabwe …" Section 117 also makes it clear that "legislative authority of Zimbabwe is derived from the people …" Likewise, section 162 provides that "Judicial authority derives from the people of Zimbabwe". 


The collective effect of these provisions means the arms of the State exercise their authority on behalf of the citizens. The citizens are the owners of that authority, which they confer and can withdraw as they wish, using constitutional means. The problem is that most people do not realise that they have power. They see their leaders as the ones with power. They only have it because you have given it to them but you have the right to take it away. Later this year, we shall do a full analysis of circumstances and means by which citizens can withdraw their authority. 


What is the nature of the State?


The State is a complex creature. Many people see the government as the State, but it is more than that. The State is traditionally made up of three arms: the Executive, Legislature and the Judiciary. A French political philosopher, Montesquieu, is credited with the principle of separation of powers, which describes the separation of powers among these three arms. 


Montesquieu had studied the British system of government in the 17th century and thought it represented a separation of powers. His view of the British system was inaccurate as the arms of the State are not that separate. Nevertheless, it remains a useful principle which has been the bedrock of many constitutions around the world. 


The idea of separation of powers is designed to prevent concentration of powers in one body. Dictators like to centralise power. They want to make law, administer it as well as interpret it. This centralisation of power was rejected in Europe, leading to the fall of absolute monarchs. The most famous of these is the French Revolution in 1789. Before it, the English had gone through the Glorious Revolution in 1688. 


The fact that centuries later, people around the world are still fighting dictatorship or the threat of it shows the enduring nature of the problem. Citizens cannot take power for granted. Once they have handed it over, they have to remain vigilant, because those who hold power prefer to have more of it, all to themselves. They want to control the executive arm, as well as the legislative arm and the judiciary. This is why it's always important to defend judicial independence. 


The problem is when the judiciary itself is captured. In that case, the citizens are at the mercy of centralised power. They have no-one but themselves in their defence. 


Limits of law


The law is important, no doubt, but as I have argued before, there are limits to what the law can do. I have often quoted the words of American jurist, Justice Learned Hand, which I find instructive and I repeat them here:


"I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it …"


It's a cautionary qualification to what the law can do help us. Indeed, many Zimbabweans might identify with it, as will many who live under repressive systems around the world. 


Much of this repression, ironically, is done in terms of the law; laws that are perfectly passed by legislatures, administered by law enforcement authorities and interpreted by judiciaries. If you challenge these regimes of violating human rights or the rule of law, they will often point you to voluminous texts and say they are acting in accordance with the law. They will tell you that all decisions were made by the courts of the land. And they will be right.


This is what some critics refer to as rule by law, as opposed to the rule of law. The rule of law is supposed to be the antithesis of arbitrary rule.  It is supposed to give higher status to law over the whimsical decisions of the leader. But it can be turned on its head when those whims or arbitrary decisions are given the cover of law. 


The distinguished British jurist, Lord Bingham did not agree with this formalistic view of the rule of law. He espoused and articulated what is known as the substantive rule of law, one which anticipates the recognition of human rights and respects international law. The effect is that if the law does not respect human rights or conform to international law, it falls short of the rule of law.


Our problem in Zimbabwe is not that we do not have a legislature, a judiciary or even a law enforcement system. These institutions do exist. But the legislature is virtually controlled by the ruling party, which has a two-thirds majority. Parliamentarians across the divide have also not done themselves a favour by appearing to favour self-interest when it comes to benefits, completely insensitive to the plight of the people they represent. 


The judiciary has flashes of independence but by and large, when it comes to political matters, there is a feeling that it lacks sufficient distance and independence. Law enforcement authorities often act as arms of the ruling party. This leaves citizens at the mercy of a powerful ruling party which controls virtually all arms of the State. 


When they were making their Constitution, America's Founding Fathers understood the problem and sought to design a system of checks and balances between the arms of the State. One of the Founding fathers, James Madison captured this well in The Federalist No. 51, 


"But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself."


It is the last bit which is lacking in many systems, including ours. The government likes to control the citizens, but it is unable and unwilling to control itself. We see this in the double-standards it exhibits. Right now, it wants citizens to pay import duty and other taxes in foreign currency, but it does not want anyone to charge in foreign currency. The government wants everyone to tighten their belts, but it is unable to curb its spending habits. It can control others, no doubt, but it won't control itself. This is our major pitfall – lack of governmental self-control. 


The Press


Historically, the press is known as the fourth estate. The origins, in old England, refer to the addition to the three estates, namely the crown, the clergy and the commoners. In the US and other modern democracies, it was the addition to the three branches – executive, legislature and the judiciary. It's supposed to be the voice of the people, through the press, holding the government accountable. For the British politician, Edmund Burke, "there were three Estates in Parliament, but in the Reporters' Gallery yonder, there sat a fourth Estate more important far than them all"


Today, it's often referred to as the media. Our constitution recognises the role and importance of the media. Section 61(2) provides that "Every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists' sources of information". It is a recognition of press freedom. Properly exercised, the right enables the media to exercise an important oversight role on those who govern. 


There are qualifications, which mean the right to a free press does not mean "incitement to violence, advocacy of hatred or hate speech; malicious injury to a person's reputation or dignity; or malicious or unwarranted breach of a person's right to privacy. This is designed to ensure that the right to free speech is counterbalanced by the right of other persons who may be affected by its exercise. 


Today, the Internet and social media have become important mediums through which the right to free speech are exercised. Indeed, they too are major challenges to traditional media. There are both challenges and opportunities. Some opportunities are that social media helps to challenge the propaganda of state-controlled media. It no longer has a monopoly to information dissemination. That's why when state media falsely reported that the First Lady ad resolved the doctors' strike, it was immediately challenged via social media. 


Nevertheless, there are also challenges, which include fake news, which is liberally disseminated through social media. Everyone has become an information disseminator. Without the media training and ethics, some use social media and the internet to disseminate fake news. But this is not a problem confined to private actors. State and private media have also been guilty of the same. It requires a savvy readership but also a civic society that is active and vigilant, capable of countering fake news when it does appear so that citizens are not misinformed.  


State media in Zimbabwe has often been accused of being partial and partisan towards the ruling party ZANU PF. It doesn't hide this. The government has a propaganda arm, which it calls the Ministry of Information and Publicity. Its purpose is to advance the ruling party's agenda. It is an Orwellian structure, as predicted in Nineteen Eighty-Four, to create an exclusive regime of information that indoctrinates the population. It doesn't matter how much training it gets as long as it works to advance the ruling establishment. 


Some argue that there is no problem with state media advance g the agenda of the ruling party because private media often bats for the opposition. However, this ignores the fundamental fact that state media is predominantly funded by the State, and where it appears to be private, as is the case with Zimpapers, it is controlled by the State. As long as it is controlled by the State, it must be non-partisan and objective. This is recognised in our Constitution which places a specific obligation on State media. Section 61(4) states as follows:


"All State-owned media of communication must … a. be free to determine independently the editorial content of their broadcasts or other communications; b. be impartial; and c. afford fair opportunity for the presentation of divergent views and dissenting opinions"


The right to freely determine editorial content means it must be free from the ruling party's control, as is currently the position. It is qualified by the requirement of impartiality and the need to ensure that there are divergent views and dissenting opinions. Needless to say, these constitutional requirements on state media are flagrantly ignored. 


Transparency


Parliament has an important role in holding the government to account. One of the key issues of accountability is public finance. The government operates on public finance. Government funding generally comes from the public, through the medium of taxes. Paying tax is one of the fundamental obligations of citizens. There is a quote often attributed to Benjamin Franklin, referring to the US that "Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes." 


In one of the famous verses of the Synoptic Gospels, Jesus is asked whether it is right to pay taxes to Caesar. His response is the stuff of legend. Render unto Caesar the things that belong to Caesar, and to God, the things that belong to God", which settled the matter of paying taxes. To this day, authorities charge taxes upon citizens. Over the course of history, rulers have levied taxes upon citizens, some for development and other for funding wars of conquest. Our own history of taxes is hideous. Taxes were one of the grievances that sparked the First Chimurenga in 1896. 


Given that citizens are the primary sources f taxes, it is important that they monitor the use of public funds. This is also why it is important for the State to manage public funds wisely. It is for this reason that there is a law on the use of public funds, the Public Finance Management Act and rules on corporate governance relating to public funds. Likewise, this is why the award of tenders for public projects, funded by public funds is regulated by law. 


Indeed, this is why the Constitution places strict obligations on the extent of state borrowing and the guarantees it can give. It requires all this information to be declared to parliament and to ensure that the national budget, which represents the estimates of State expenditure, must be approved by Parliament.  


Regrettably, the State has played truant on its obligations to Parliament. The terms and amounts borrowed or guaranteed are not regularly declared to Parliament. Parliament is bypassed and ignored when it comes to public contracts, loans and guarantees. The nation knows only that the country owes billions of dollars to creditors, but the terms are kept secret.


Then there is the big problem of foreign currency allocation. The government has just announced a foreign currency allocation committee, which is supposed to oversee the allocation of scarce foreign currency. But the fundamental questions are left unanswered. What are the criteria for the allocation of foreign currency? Who are the beneficiaries of the foreign allocation scheme? How much have they been allocated in recent years? It's pointless to have a foreign currency allocation committee when these fundamental questions remain unanswered? 


What are creditors and investors still sceptical?


For a long time, Zimbabwe was told that Mugabe was the problem and in some ways he was. He had stayed in office for too long and his brand had failed. His departure was supposed to open a new chapter for the country. However, the promise of the new regime also failed. It has become customary to say Mugabe is gone but the system remains firmly in place. Anyone bust Mugabe was supposed to do better. But somehow, creditors remain sceptical and new investors are still suspicious.


Part of the challenge is that the new regime has failed to make a demonstrable effort to show the difference with the old regime. The amendment of indigenisation laws was useful but only a step in a large process. Investors also look at how their mother countries react to a regime and so far the Western countries from whom much investment is expected to come have been impressed. As ever, our toxic politics have been an impediment.   


Our incoherent and inconsistent currency policy has also been a big challenge for investors. Shareholders of listed companies are struggling to get their dividends, thanks to our foreign currency challenges and a currency policy which is totally warped. Rating agencies, such as S & P Dow Jones have since reacted in a negative way, which also sends a bad message to investors. 


Our failure to repay our debts continues to block new lines of credit, although our government prefers to blame the usual scapegoat called sanctions. The truth of the matter our debt defaults predate the sanctions regime. The rule is as old as the institution of credit – you default on your debts and creditors will be concerned. If they offer you anything at all, it will be on tough terms. In our case, even our all-weather friends, the Chinese are sceptical, which should remind us that our problems are beyond the usual scapegoat of sanctions. 


What's to be done?


There is a lot that can be done without spending money. Political reforms that will take away any excuse for sanctions can be easily achieved, as long as there is political will. They don't cost a penny. Transparency in public finance, especially in foreign currency allocation can be achieved without any financial cost to the nation. Reform of state media, ensuring compliance with the Constitution and objectivity can be achieved without any financial obligation. If anything, it will make state media more agreeable to the public. 


Separation of powers, which includes independence of the judiciary does not come with any financial cost. At the end of the day, when all is said and done, Zimbabwe ought to appreciate that the power that is held by the State comes from them. They confer it upon those who govern and they have the right to withdraw it if they so wish. Those in charge of the State know this, which is why they maintain a repressive apparatus of the State. But it's only a matter of time before people realise that this power is theirs and they can take it back if they truly resolve to do so. 


WaMagaisa


wamagaisa@me.com 
        

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