GUNNING DOWN PEOPLE, LEGITIMACY & HOPE

Zimbabwe’s July 30 Democracy & Legitimacy Test

Forward to The Past

CIZC Post 2018 Election Briefing paper, August 2018

KEY MESSAGE

This briefing paper is a culmination of Crisis in Zimbabwe Coalition observations and analysis in the run up to, during and immediately after the July 30 Elections. It uses political legitimacy as its analytics and is fed by a series of 2018 Election Fact sheets and statements that the Coalition put out during this period. The paper establishes the following key points:

  1. The July 30 2018 Election failed to demilitarize civillian political processes, a mandate that the election carried in the after math of the November 2017 coup.

  2. The July 30 Election process failed to meet the democratic test, and as a result the emergent sate lacks political legitimacy.

Given the two points above, the election was supposed to represent Zimbabwe’s return to norm compliance through demilitarizing of political processes and a credible election. Failure means that Zimbabwe is back to similar political movement to the 2008 election impasse with a governance and legitimacy crisis looming, undergirded by a military dictatorship.

What should be done?

  1. SADC and the International community must continue to condemn the illegal infractions against people’s rights in Zimbabwe, including holding sacrosanct citizens’ rights to life and protection by the state, as well as discouraging impairments of rights of the media and ordinary Zimbabweans.

  2. SADC and the international community must call for and support dialogue between political actors as well as an inclusive conversation on Zimbabwe’s future.

  3. Zimbabwe must return to full norm compliance in modern statecraft where the military is subordinate to civilian authority and does not interfere with civilian political processes.

  4. The Zimbabwean government must stem impunity and ensure an independent and credible process to investigate the murders of civilian on the 1st of August 2018 at the hands of the army.

  5. Zimbabweans across societal cleavages (political, religious, civic, business and labour) must engage in collective dialogue on the fundamental challenges facing the country and fashion a shared vision that moves the country forward towards democratisation and away from the twin crises of poor governance and illegitimacy.

  6. Citizens of SADC are encouraged to remain in solidarity with the people of Zimbabwe, lobby their governments to do right by and stand with the citizens of Zimbabwe and demand that their will be respected and the security guaranteed.

Introduction

Zimbabwean Journalist Brezhnev Malaba posted the above vignette on micro blogging site twitter on the 5th of August. The tweet aptly captured what appeared to be Zimbabwe’s return to a horrid and torrid past where thousands of civilians were subjected to death, torture, displacement and maiming as ZANU-PF sought to discipline opposition from ZAPU, which seemed well supported in Matabeleland. Back in the 1980’s the crimes against humanity that the state perpetrated were enough to lend several leading state figures in the Hague, but the world turned a blind eye, and to date perpetrators of the so called Matabele Massacres or Gukurahundi have escaped censure, and some of its leading architects are in today’s government. Isn’t it telling then, that 30 years later descriptors used to illuminate that horrid moment of madness are apt for a Zimbabwe that is supposedly under a new dispensation committed to democratization and liberalization of both the politics and economics of the country?

The Post-Coup State’s Political Legitimacy Prior To Elections

Zimbabwe went to the polls on 30 July 2018 as constitutionally required, at the end of a five-year term that started in 2013. These elections, however, deviated from normalcy that constitutional scheduling infers, as they followed hard on the heels of the ouster of Zimbabwe’s leader since independence, President Robert Mugabe, at the hands of the military and a ZANU-PF faction in a coup in November 2017, effectively ending Mugabe’s 37 year reign. The coup was followed by the overt deployment of heavy military presence and interference in all spheres of life, including policing services, public spaces, and social service delivery. Hither to, military involvement in all manner of state and public affairs had been covert, and conjectural, but the coup made this overt through the army’s ubiquitous presence for a sustained period of time.

Was this post-coup state legitimate. Without clouding the discussion with abstract notions around the normativity and empirical discussions of legitimacy, in our understanding, there is no state or entity that can be fully legitimate. As such a state’s claims to legitimacy are almost always a function of consent of only part of the population, resting on the consent of the winning coalition within the electorate through the extent to which a regime receives diffuse support. Viewed from this perspective, the legitimacy of the post-coup state in Zimbabwe will always be questioned, but it is reasonable to assume that the coup plotters claim to legitimacy was accepted internally through mass support of citizens and the civilian putsch in political parties in parliament from November 18 to 21, as well as externally through the reluctance of external actors in the international community to recognize the coup and sanction it, preferring instead to label it a military assisted transition. Beyond this general take on legitimacy of the state we apply a particular analytics of political legitimacy based on the argument that political power is legitimate to the extent that it meets the Beetham’s three criteria for political legitimacy set in figure 1 below:

On the surface, Legality and Normative justifiability regarding the post-coup regime were removed from the domain of conjecture, and assisted Zimbabwean authorities, their supportive citizens and the international community through two processes. The first was the scaling down of military involvement post 15 November to allow for civilian processes to topple Mugabe through citizen’s protest, his party ZANU-PF’s processes, and impeachment through parliament. The second was the High Court judgment by Justice Chiweshe of the 25th of November 2017, which ruled that, “The action of the Zimbabwe Defence Forces in intervening to stop the takeover of first respondent (former President Mugabe) constitutional functions by those around him are constitutionally permissible and lawful in terms of Section 212 of the Constitution of Zimbabwe.”

While some in civil society and the political commentariat continued to argue that the regime was illegitimate based on its entry through a military and palace coup, the debate was essentially lost on account of a citizenry intent on moving on and celebrating the first change over in leadership at the top of state ticket since independence. The last part also on the surface covered the third leg of the political legitimacy question, although questions lingered, and were left to be answered by the first post-coup election of 2018. The prevailing sentiment was one of giving the regime a chance to do right by the people of Zimbabwe through improving their lot and delivering a legitimate election.

The Post-Coup State’s Legitimacy in the Aftermath of the 2018 Election

As Zimbabwe headed for elections, the army seemed to retreat to the barracks, and the pre-election period was characterized by relative calm and peace with few reported incidents of overt physical violence. Given the November Coup, the post-coup regime, its governance, and the 2018 Election were supposed to be the mechanisms for fully ushering the country back to legitimate constitutional and democratic governance. The ultimate condition for achieving this in the eyes of both Zimbabweans and the international community was a free, fair, and credible election whose victor would be undisputed on account of the process. Achieving this would signal trust being reinvested into the electoral process as the legitimate means of attaining power, and international investors would be reassured that Zimbabwe was back to political norm compliance, a good sign for economic reengagement.

However, the immediate post-election period has presented serious challenges for democratic development and the legitimacy of the state in Zimbabwe. Despite the relative calm and peace experienced on polling day and a commitment by the state to enhance macro-economic performance through reviewing investment law in Zimbabwe, the state has shown limited commitment and interest in reforming the political space. For most observers, this damning indictment is a function of immediate post-election events, which saw five fundamental things occur.

  1. First, the poll was disputed with the opposition alleging partiality on the part of the Zimbabwe Electoral Commission, and rejecting its declared Presidential results which gave incumbent president Emmerson Mnangagwa a narrow 50.08% of the vote, just enough to award him victory without the need for a Presidential run-off election – as fake.

  2. Second, On 01 August 2018 opposition members marched against the inordinate delay in releasing Presidential results, resulting in violence, and the deployment of the armed forces to police the protest. The army indiscriminately fired live ammunition to disperse the demonstrators resulting in the death of at least 6 people, with scores injured. According to police, the deployment of the army was after the police had invoked section 37 of the Public Order and Security Act (POSA).

  3. Third, while the second development fatally showed limitations imposed on freedoms of association, the environment was also characterized by limitations to freedom of expression and media freedom as police attempted to unsuccessfully bar the opposition from briefing the media on their protests.

  4. Fourth, Zimbabwe’s urban centres were subjected to informal martial law with the armed forces released amongst civilian populations, going on a rampage that saw the army, beating and harassing people in supposed opposition areas, forcing business to close and policing an informal curfew.

  5. Fifth, police cracked down on opposition leaders and supporters, arresting an estimated 27 MDC-Alliance activists at their Morgan Tsvangirai House Head Quarters, raiding the homes of top officials, advisers and organisers, and putting out persons of interest notices on some opposition leaders in the national media. Raids and threats were also made against civil society leaders and activists.

  6. Sixth, Opposition members and polling agents in some rural areas were reportedly threatened with beatings by the army in several villages as reported by Heal Zimbabwe Trust.

  7. intimidated, and assaulted covering an MDC Alliance press conference at Bronte Hotel in Harare. In addition, the army and police have assaulted both local and international journalists carrying out their constitutionally guaranteed duties.

The above developments inevitably placed Zimbabwe on a slippery slope towards democratic regression, undermining the citizens’ spirit of 18 November 2017 when they marched against dictatorship as a governance system, al beit, with the support of the army. Post-election reprisals on political opponents diminished the possibility of uniting a deeply divided society and fundamentally failed the state’s attempt at achieving political legitimacy in the eyes of the majority of its citizens and interested global partners. The military action of 1 August and the days that followed (see Figure 2) succeeded in gunning down people, legitimacy and hope, setting the country back to a political moment not unlike that of July 2008.

The July 30 Election Contestations and Military Aftermath: of Express Consent, Legality and Normative Justifiability

The contestations around the legitimacy and accuracy of the election results place the issue of express consent in doubt, while the actions by the military despite attempts to sanitize them by the police fail the normative justifiability and legality tests. International Human Rights Norms specifically dictate that if the military is to operate amongst civilians, it must uphold the principle of distinction making civilians generally immune from military attack, that is if there is a war and an opposing combatant, which in Zimbabwe’s case there was none. Following on this, international law is quite explicit that militaries must ensure that civilian populations enjoy general protection against dangers arising from military operations, and must operate on the principle of proportionality.

Article 51 of the Geneva Conventions Protocol 1 specifically prohibits attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The disproportionate response to protest by the Zimbabwean state, which started with the deployment of the army itself before even the 6 fatalities, was clearly disproportionate and failed to protect civilians from the dangers of the military action. The forgoing fails the Zimbabwean state on the normative justifiability test. This result unfortunately stands even if it were true that the Police invited the army to help, because the same rules of engagement and normative conducted would be expected.

A telling indication that the state is aware of the legitimacy eroding effects of the immediate post-election developments is the attempts by the President Emmerson Mnangagwa to plead that these actions were out of character with the new dispensation and have no place in the Zimbabwe he is trying to build. The President while appearing noble and well intentioned inevitably forced a second question onto the table. Who is really running the state? This is especially given the received wisdom that the path to power for him was cultivated by the military under stewardship of his erstwhile now deputy Retired General Constantine Chiwenga, who even prior to the November 2017 Coup regarded himself as the country’s second strongest man after Mugabe, in Mnangagwa’s absence. By this logic, while Mnangagwa was elevated by the coup and while other key Military actors like Perence Shiri, Valerio Sibanda and SB Moyo got promotions from the coup, could it be that Zimbabwe’s second most powerful man remained number two? This question has led to speculation of either elite discohesion in ZANU-PF and the state with two centres of power around the President and his Deputy, perceived to be his military handler, or a coup in effect in the state where civilian authorities are not in control of their arms of cohesion, in some variation of a deep state thesis.

Perhaps more telling was first the ominous warning on twitter from Minister Retired Major General S.B Moyo where he warned that they have been mature taking abuse over months, but that this should not be mistaken for weakness. Later after the unfortunate military incursion of August 1, Minister SB Moyo attempted to distance the army and government from the military actions initially calling the reports false, and then later arguing that the perpetrators were imposters posing as army. It is ironic that the Foreign Affairs Minister takes center stage on commenting on local developments involving the army, almost creating the impression that he is reprising his coup role as primary spokesperson for the Zimbabwe National Army.

Illegitimacy Long In The Making Failing And The Democratic Test

While the immediate post-election period’s developments have been telling, the writing towards Zimbabwe’s failure to pass the democratic test should have been on the wall already on account of the post Mugabe administration’s failure to reform the political space. The following (lack of) progress markers from the pre-election period substantiate this claim:

  • Constitution and the Electoral Act: Zimbabwe held elections with an Electoral Act that was not fully compliant with the Constitution. Amongst several irregularities and inconsistencies that made the act fall afoul of the constitution are that it limited franchise through excluding a large number of Zimbabweans in the diaspora as a result of the Electoral Acts prerequisites around prospective voters residing in their constituency. The Act also limited the right to vote for other population groups granted franchise by the constitution like prisoners, hospital patience, and persons manning essential services through ZEC’s inability to make arrangements for these groups to exercise their right to vote. In addition, the Act continued to leave ZEC at the mercy of the Minister of Justice, Financially and regarding its recruitment practices for the head of secretariat and ability to make electoral regulations. In the post-election phase, given the challenge against the Presidential results mooted by the MDC Alliance, it is likely that further deficiencies around electoral dispute resolutions will be unearthed as the act is overly technical and equivocal on dispute resolution.

  • Repressive Legislation: Zimbabwe’s post-Coup dispensation, while claiming to be new and committed to democracy did nothing regarding the removal from Zimbabwe’s statute books of repressive pieces of legislation. These laws, which curtail human freedoms guaranteed in Chapter 4 of the Constitution, include the Public Order and Security Act (POSA), Access to Information and Protection of Privacy Act (AIPPA), and the Criminal Law Codification and Reform Act (The Code) which were in the past used drastically to discipline dissent undermine human rights in the period prior to November 2017. While most political gatherings were allowed prior to the July 30 Election, police denied several opposition and citizens their right to peacefully demonstrate and present petitions as stipulated in Section 59 of the constitution, citing that they had already approved numerous gatherings and demonstrations. For instance, police denied the MDC Alliance the right to demonstrate on the grounds that the MDC Alliance “…have already applied for a star rally scheduled for the 28th of July 2018 which we have already sanctioned; you previously held two similar demonstrations against Zec on the 5th of June and the 11th of July 2018 over the same issues.”

  • Party State Conflation: The Mnangagwa administration continued to perpetuate the conflation of the state and party, rather than separating them, essentially using state resources and government programs to campaign. For instance, the official opening of Karo Mine in Mhondoro was combined with a ZANU PF rally at Mubaira Growth Point.

  • Biased Media Reportage: State owned media continued to be largely partisan with either cosmetic or biased coverage of political parties. As Media Monitors Zimbabwe noted, Coverage was often tilted in favor of ZANU PF while the opposition was demonized. In their pre-election report covering a ten day period, the monitors noted that, “There is heavy bias in favor of ZANU PF - the ruling party and its candidates, in election coverage particularly in state-owned and public media. ZANU PF received 45% of all coverage, 75% in state newspapers (Chronicle, Herald and The Sunday Mail) and 54% on ZBC TV and radio stations (Classic263 formerly SFM and Radio Zimbabwe).” In addition, the coverage given to the opposition was often biased. For instance, between 11 July and 16 July the Herald ran articles that were meant to tarnish the image of the opposition leader Advocate Nelson Chamisa while propping up President Mnangagwa as a credible and only option for the electorate.

  • Mystery of the Voters Roll: The Electoral Court sat while the voters’ roll had not been availed. Despite historical contestations on the availability, access and form of the voters roll, the Electoral Court sat with political parties complaining that the electoral commission had not availed the voters roll. The Zimbabwe Electoral Commission failed to take corrective measures cited in the 2013 SADC Election Observer Mission (SEOM) Report on Elections in Zimbabwe on access to the roll by election stakeholders. It is conspicuous that ZANU PF often sprang to the defense of the commission and never raised any issues with the same.

The immediate post electoral period’s developments suggest that Zimbabwe is trending towards degenerating into a fully-fledged overt military state. Incessant human rights violations have resurfaced with the state prepared to shut down the little available democratic space. The cosmetic changes in the campaign environment were driven by ZANU PF’s convenient desire to portray the party as being on a reform path and that the dominant narrative would be around the personification of former President, Robert Mugabe as the ONLY ‘evil’ that stalled democracy in both Zimbabwe and ZANU PF, thus the fall guy. This narrative sought to undermine the discourse of ZANU PF as an anti-democracy institution whose system of governance is predicated on dictatorship and suppression of fundamental human freedoms in furthering the goals and interests of a minority ruling elite. Significantly, the military coup of November 2017 took away civilian authority in politics and placed it in the hands of the military who have emerged as the ultimate arbiter in electoral disputes. Following events of the first August, their veto power is virtually unquestionable.

In previous Elections, the Crisis in Zimbabwe Coalition has adopted the Chain of Democratic Choice as its analytics, hinged on the 5 Is (Information to allow voters to make free preferences, Inclusion, Insulation, Integrity of the process and Irreversibility of the peoples verdict). Following Dahl and Schedler the coalition subscribed to the notion that a violation in the chain of one link, does not lead to a less democratic election, but an undemocratic one. The foregoing sections show that the chain of democratic choice is not only broken but possibly in relation to the 2018 election irretrievably so. On account of this and the processes failure to adhere to meaningful levels of express consent that is not disputed, normative justifiably of some state actions and doubted legality of others, the processes also fail the legitimacy test. In short the July 30 Election rather than put paid to the legitimacy problem of the Zimbabwean state, in all probability started a new era of illegitimate government that is undemocratic on the strength of the evidence so far.

Recommendations

The 2018 elections constituted a turning point and a critical juncture that could have allowed Zimbabwe and Zimbabweans to look forward to the task of rebuilding and making Zimbabwe great again off a clean political slate with limited to no legitimacy challenges on the state and those presiding over it. Now that the 2018 process lacks legitimacy and was undemocratic, Zimbabwe finds itself at a similar political moment to 2008. While difficult, the situation is not intractable, especially if Zimbabwe and the interested international community learn from the 2008 experiences. Below are some actions that can assist to rescue Zimbabwe from reverting back to the twin crisis of legitimacy and governance which have dogged the state since 2000.

  1. Zimbabwe must return to full norm compliance in modern statecraft where the military is subordinate to civilian authority and desists from interfering in civilian political affairs as it did in November 2017, and now in August 2018. This entails that

  • The military immediately returns and stays in the barracks through leaving communities and roads where it is present.

  • The Military halts human rights abuses on defenseless citizens and uphold the supremacy of Chapter 4 of the Constitution which says that……

  1. Zimbabweans across all cleavages of society must engage in collective dialogue around the fundamental challenges face the country and co-create a vision for the nation that every stakeholder buys into and works towards. This entails:

  • Avoiding the 2008 trap of looking at Zimbabwe’s challenges as problems between two political actors with the citizens as spectators and pawns in a process that distributes power amongst elites but without dealing with the country’s deep rooted fundamental challenges to which everyone is a stakeholder.

  • Ensuring therefore a multi-stakeholder dialogue and national visioning process that has civil society, government, political parties, business, religious groups and unions on board.

  1. The government must facilitate impartial and independent investigations into the Harare shootings and assaults of civilians by members of the military. Such investigations must establish culpability with guilty parties subjected to the course of the law.

  2. Zimbabwe must uphold the rights of citizens and international visitors in all respects including through upholding media freedoms, and civil and political liberties.

  3. The SADC community together with other global players must institute discussions on the situation in Zimbabwe and develop a political and economic rescue package that is predicated on democratic progress.

  4. Urge the regional community of people to continue standing and fighting in the corner of Zimbabwe and its people rather than political elites.

END NOTES

See Beetham, D. (1991). Max Weber and the legitimacy of the modern state. Analyse and Kritik ,

13 (1), 34-45.

For a sound argument on the illegal and constitutional nature of the coup see Jason Brickhill, “Coup and Constitution in Zimbabwe Part 1: The Military Action is Profoundly Unconstitutional” (OxHRH Blog, 18 November 2017) http://ohrh.law.ox.ac.uk/coup-and-constitution-in-zimbabwe-part-1-the-military-action-is-profoundly-unconstitutional/

See https://www.independent.co.uk/news/world/africa/robert-mugabe-impeachment-zimbabwe-parliament-begins-sessions-president-remove-latest-updates-a8067111.html

See https://www.nytimes.com/2017/11/18/world/africa/zimbabwe-mugabe-march.html

https://www.herald.co.zw/military-intervention-legal-court-rules/

See Peoples Convention declaration at http://kubatana.net/2017/11/27/national-peoples-convention-lays-demands-declaration/ Un

http://blogs.lse.ac.uk/africaatlse/2017/11/16/understanding-the-military-takeover-in-zimbabwe/

See https://www.newsday.co.zw/2018/08/chamisa-rejects-fakeresults/

http://uk.businessinsider.com/zimbabwe-riot-over-election-results-2018-8?r=US&IR=T

See: https://www.pazimbabwe.com/zimbabwe-47911-woman-shot-by-mnangagwa-soldiers-in-harare-protests-buried.html

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=16&cad=rja&uact=8&ved=2ahUKEwjI- rWhndrcAhUcOsAKHdBGDzUQFjAPegQIAhAB&url=https%3A%2F%2Fuk.news.yahoo.com%2Fzimbabwe-riot-police-briefly-break-144543379.html&usg=AOvVaw0ox31HRY7-9-NMLAv9C2AF

https://bulawayo24.com/index-id-news-sc-national-byo-142308.html

https://www.dailynews.co.zw/articles/2018/08/03/crackdown-on-opposion-mdc-leaders

http://www.healzimbabwetrust.org

  1. See: https://www.thestandard.co.zw/2018/08/05/soldiers-go-berserk-harare/

The March 2008 Harmonised Elections were heavily disputed and resulted in a run-off election set for July of that year. Ahead f the run off the military and war veterrans are alledged to have killed over 200 opposition supporters, and displaced and victmised thousands. Morgan Tsvangirai, pulled out of the run-off election leaving Mugabe as sole candidate in an election that was roundly rejected at home and abroad, later leading to a Government of National Unity between the main political protagonists with a presence in parliament.

See Geneva Conventions especially Article 51 on the Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949

See Protocol Additional to the Geneva conventions of 12 August 1949 (Protocol 1), https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=D9E6B6264D7723C3C12563CD002D6CE4

https://www.timeslive.co.za/news/africa/2018-08-01-zimbabwe-police-had-to-ask-for-armys-help-to-quell-protests/

See Zimbabwe's Mnangagwa vows to probe post-election killings

https://www.malaysiakini.com/news/437336

See Zimbabwe After the Coup: Prospects for Real Political Change https://za.boell.org/2018/05/17/zimbabwe-after-coup-prospects-real-political-change

See https://www.myzimbabwe.co.zw/news/29255-minister-lt-general-rtd-sb-moyo-reacts-to-soldiers-beating-up-citizens-clamp-down-on-opposition-leaders-reports.html

https://edition.cnn.com/2017/11/20/africa/zimbabwe-military-takeover-strangest-coup/index.html

For a wider reading on the inconsistencies of the electoral act with the constitution see http://www.veritaszim.net/node/2431

See: https://www.dailynews.co.zw/articles/2018/07/25/police-ban-mdc-demo

See: http://www.zbc.co.zw/live-blog-karo-resources-ground-breaking/

see Media Monitors Zimbabwe’s 2018 Harmonised Election Coverage: Media Coverage 10 Days After Nomination Court. JUNE 14 - 24 2018

https://www.herald.co.zw/chamisa-paranoid-immature/

See: https://www.newsday.co.zw/2018/06/nca-sues-zec-over-voters-roll/

See Andreas Schedler’s Elections Without Democracy: The Menu Of Manipulation, 2002

See Crisis in Zimbabwe Coalition’s Countering electoral manipulation: strengthening Zimbabwe’s Chain of Democratic Choice. 2013

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