Meaningful representative democracy under question
... as Zimbabwe goes for by-elections
NEVER has Zimbabwe had by-elections of the magnitude that faces the nation tomorrow. So many seats are up for grabs — a total of 133 elective vacancies, which comprise 28 parliamentary seats and 105 council seats, that many have characterised this by-election as a mini general election.
And to these by-elections, the politicians are attaching unprecedented attention, understandably. For instance, the campaigns by all thetwo frontline political parties are being led by non-other than the parties’ presidents.
Whether this is because of the number of seats under contestation, or the proximity of these by-elections in time to the 2023 harmonised general elections, the palpable pedestal these elections have been perched cannot be missed.
But with these elections comesto the fore a fundamental question: are elections in Zimbabwe futile, tick box exercises that legitimise despotic rule?
Already, the exposés around what appears to be serious manipulation of the voters’ roll are cause for concern. Before we have even gone to the polls, it seems we have already failed the test for credibility.
How can the elections be credible when access to the mainstream State media is skewed towards the incumbent; when one party gets the praise headlines, and the other gets attentiononly for bashing?
One party can bus in people — including using schools buses in violation of an extant 2019 High Court ruling, and gallivant all through the country, and one is barred from holding rallies under laughable reasons from what ought to be an apolitical police service.
It should not be surprising that some citizens are already calling for withdrawal of participation, while some have already lost hope in what would emerge. Unsurprising I say, but worrisome. We should be worried.
Representative democracy which primarily manifests itself in electoral participation to choose representatives is such a fundamental pillar of our democratic system.
Meaningful and consequential participation gives people a stake. When people have a say in how they are governed and in who governs them, and have an equal chance to power, it cultivates duty to self, fellow countrymen and to country.
Our Zimbabwean democracy per the 2013 Constitution is ablend of direct, participatory and representative democracy, culminating into the strand of constitutionaldemocracy we have elected for ourselves.
None of these are more important than others, but these must all work together in equilibrium, to sustain our constitutional democracy.
Yet history has taught us that the law on paper alone falls short of doing the trick. We may have the law — and indeed we have the law, but if we do not have the spirit of the law, which in this case is the principle of universal suffrage, to allow for free and fair elections and of respecting electoral outcomes, the law as written on paper comes to nought.
The fundamentals of representative and participatory democracy in a constitutional democracy such as the one we have crafted for ourselves require the vast majority to believe in the spirit of what is negotiated in the Constitution, the social contract, and to operationalise that.
It requires compliant behaviour and the cultivation of a culture. Only then can the systems and processes the Constitution promises be realised.
Absent the spirit, we have situations such as what we have now where, while the Constitution speaks broadly in allowance of suffrage for all, we use legislation – the Electoral Act — to cut down on what the Constitution allows or to limit the contours of constitutional reach.
So, prisoners cannot vote, as with the hundreds of thousands in the diaspora. We even, through judicial decree, made a ruling to the effect that the Constitution does not allow for the diaspora vote in the 2018 Constitutional Court case of Gabriel Shumba & 2 Ors v Minister of Justice, Legal and Parliamentary Affairs & 5 Ors CCZ 4/18.
And electoral democracy is not just about voting. There is a whole support system that goes with it. We need judges and lawyers, the police and prosecutors, whose fidelity is to the law and the law alone.
If these functionaries work in that fashion, it becomes difficult even for the Zimbabwe Electoral Commission (Zec) to go on a frolic of its own. Yet the opposite is true: to subvert constitutional democracy and its components of electoral and participatory democracy, you need lawyers and judges who play to the political tune, who are pliable and who are willing to be undertakers of democracy.And these we have in Zimbabwe!
That we are even having these by-elections is a whole story on its own of decimating representative democracy.
These by-elections are the result of politicians gone berserk; individual politicians using a constitutional loophole, section 129(1) (k) — the recall provision — to spite opponents, in the process spiting voters.
We now know, after this episode, that the recall provision as currently framed in the Constitutionis a mistake we made during constitutional design.
How does one man, or a party, have unfettered powers to recall him or her that the people have voted into office, and such a recall happens without the people’s voice?
How this power was exercised mainly by MDC-T’s Douglas Mwonzora with a repugnant disregard of those who voted the
Members of Parliament and councillors into office exemplifies how we have as a nation stripped representative and electoral democracy of their value.
Then the Constitution is very clear: “Whenever a vacancy occurs in any elective public office established in terms of this Constitution, other than an office to which section 158 applies, the authority charged with organising elections to that body must cause an election to be held within ninety days to fill the vacancy”, says section 159.
By-elections ought to have been held within 90 days. This did not happen, as the government held on to a questionable, clearly unconstitutional, “indefinite” suspension of elections citing Covid-19.
A case was brought before the courts in October 2020, filed by the Women's Academy for Leadership and Political Excellence, Election Resource Centre Zimbabwe and six citizens.
It was on the basis that the suspension of by-elections by Health and Child Care Minister Constantino Chiwenga under a Covid-19 Statutory Instrument (SI) - Statutory Instrument 225 of 2020, “is an attempt to subvert democracy, is irrational, unlawful and a breach of the Electoral Act and the Constitution”.
The matter was argued on May 24, 2021 before Justice Siyabona Musithu in Harare, but judgment was reserved until it was overtaken by events.
One gets the sense that the President’s proclamation of the by-elections, which happened on January 5, 2022 through Proclamation 1 of 2022 under Statutory Instrument 2 of 2022, was timed to come when it was convenient for he who has the powers to proclaim the elections.
What subversion of the electoral process, and lack of respect of electoral outcomes does,is to breed voter apathy, which Zimbabwe has been battling in the last successive elections.
So, voter apathy is not the problem, but elections truly become meaningless when the outcome is manipulated, and the will of the people is not reflected in the outcome.
People start questioning the efficacy of elections in such a case. The problem is in failing to make the systems and processes trustworthy.
Naturally, people withdraw from that they do not trust.
But if the people’s choices were to be truly determinative of outcome, who does not want to participate in a process where their input and voice really matter?
So, we need to create a culture. Having legislation or constitutional processes and systems alone is not enough; it is necessary, but it is not enough.
Otherwise, elections degenerate from being a contestation of ideas to being acontestation of physical might and control of institutions, as we currently see in Zimbabwe.
But when all is said, we cannot and must not give up on elections. The charge is to make them work.
The opposite is chaos, and we should never regress to that level. Very few countries have emerged out of democratic regression. processes
Kika is a human rights and constitutional lawyer.