Zimbabwe’s Constitutional Court recently rendered a judgment upholding the election of Emmerson Mnangagwa as President of Zimbabwe following a legal challenge by Nelson Chamisa presidential candidate for the MDC Alliance. Chamisa had argued that the presidential election should be nullified on account of irregularities in the conduct of the election. Mnangagwa and the Zimbabwe Electoral Commission (ZEC) opposed the petition on both technical and substantive grounds.
On arriving at the judgement, the Court decided that Chamisa had not availed sufficient evidence to void the election leading to the conclusion that Mnangagwa had been validly elected as President of Zimbabwe and that the electoral commission had properly conducted the election. The Court gave an abridged version of the judgment, undertaking to deliver a full judgment at a later stage.
Naturally, the ruling party was pleased with the outcome, while the opposition felt aggrieved. It is important to take stock of the implications of the judgment.
The first is that Mnangagwa and ZANU PF have a new five-year mandate to govern the country. At just over 50 per cent of the national vote, Mnangagwa remains on the hot seat on the slenderest of majorities. It means he does not command the support of nearly half the voting population. He has a huge challenge to carry both the winners and losers of the election. This requires strong and inclusive leadership.
Second, Mnangagwa’s task is not made easy by the fact that those who lost out still feel aggrieved by the conduct of the election and the determination of the Court. They have not accepted the outcome and this refusal to concede is giving great discomfort to Mnangagwa and his team. A key issue in this election is the legitimacy of the political authority and the absence of a concession has weakened the moral authority of the government. ZANU PF is desperate for Chamisa to concede so that they can claim moral authority over the rest of the population.
Third, although the formal legal processes have confirmed Mnangagwa as the winner of the election, it has not given him the ‘legitimacy’ that he needs. Part of this legitimacy would have been bolstered by acceptance and endorsement from the international community, particularly the West which has been very critical of Zimbabwe for many years. For the first time in nearly 20 years, Western election observers were invited to observe the elections, the hope being that their endorsement would help the government on its path to return to legitimacy. However, a number of factors have undermined this quest for international acceptance, with Western observers so far withholding their endorsement of the elections.
The EU and American observers were concerned that the electoral process presented an uneven playing field which gave an unfair advantage to the ruling party and marginalised the opposition. A myriad of problems was cited, including unequal access to and use of state resources, state media bias, abuse of traditional leaders to influence voters, military intrusion, failure to abide by basic rules such as delivering the voters rolls and a lack of transparency in electoral processes. These and many other challenges have been cited in previous elections. Observers noted some improvements, including the generally peaceful conditions before and during the Election Day but observed that vast improvements were required to have a truly free, fair and credible election. In essence, the core elements required for procedural legitimacy which an election should confer are still missing.
The killing of unarmed civilians during protests by opposition supporters on 1 August 2013 revealed the ugly head of state-sponsored violence and brutality that has marred the legitimacy of previous elections. On that day, a group of opposition supporters had engaged in protests in Harare and unfortunately, there were some acts of violence. The police were later joined by members of the Zimbabwe Defence Forces in order to contain the protests. However, the response of the military was excessive. Soldiers were seen shooting directly at protesters and bystanders using live ammunition resulting in several deaths and injuries. In the days that followed soldiers also reportedly went around some high-density areas of Harare and Chitungwiza, allegedly harassing and assaulting ordinary citizens.
This violent crackdown was widely covered by international media and drew condemnation from several Western governments. It grossly undermined efforts at presenting a new and reformed face of the Zimbabwean government under Mnangagwa. By the time the results were announced two days later, the electoral process had already been irretrievably tainted. The government refused to take responsibility, leaving questions as to who exactly was in charge of the country. A view emerged that there were two parallel streams of authority which were a source of confusion and instability.
To minimise the damage caused by the killings, Mnangagwa promised to appoint an international commission to investigate what had happened. Mnangagwa has in the past few days appointed a Commission of Inquiry under the Commissions of Inquiry Act. While it is headed by former president of South Africa and has some international personnel, the local composition leaves a lot to be desired as one is a well-known cheerleader of the ruling party and another is an interested party in the matters under investigation, having been a candidate in the presidential election. The other member already holds important roles in the new establishment. All in all the composition of the commission has been widely condemned by the opposition. Whether or not it can present credible findings remains to be seen but many on the opposition side have already expressed their lack of confidence in the commission. These shortcomings do not help the new political authority’s quest for acceptance and legitimacy.
An important outcome of the election is that ZANU PF controls both executive and legislative power in the absolute sense. The executive presidency is already powerful but coupled with a two thirds parliamentary majority, it means ZANU PF will have untrammelled power, even to change most parts of the Constitution. While some parts of the Constitution such as the Declaration of Rights are entrenched and require a referendum to change them, other parts can be changed by use of ZANU PF’s two-thirds majority.
A critical challenge for the next five years is, therefore, the protection of the Constitution which is still only 5 years old. ZANU PF only used its two-thirds majority once between 2013 and 2018, but the likelihood of more and fundamental changes during the next term is high. Democratic forces and civil society will have to be vigilant and pursue other channels beyond parliament to stave off changes that would unfairly tip the balance in favour of more executive power and the ruling party.
An important issue is the role of the judiciary in the electoral process. By upholding the election and dismissing the opposition’s challenge with costs, the Court has effectively endorsed the conduct of ZEC. Yet it is the conduct of ZEC in the electoral processes which gave rise to the greatest concerns both by the opposition and election observers. What it means is that ZEC will in future be emboldened, believing that there is nothing amiss with its conduct which so angered the opposition and drew observers’ criticisms. This is likely to give ZEC greater confidence to pursue the same practices and attitude which affected the acceptance and legitimacy of these elections. The likelihood that the outcome of future elections will be contested remains high, which is a recipe for confusion and instability.
There have always been concerns over the independence and impartiality of the judiciary. The conduct of the presidential petition suggested that the Court was harder and more robust towards the opposition than it was towards ZEC and the ruling party. While the system of justice is adversarial, in these petitions, the Court took a more inquisitorial role, putting the lawyers to the test. This was necessary given the conflicts of facts which could not be resolved on the papers alone. The lawyers had no opportunity to cross-examine witnesses. The Court should have adopted a fair approach towards all parties and the feeling on the opposition side was that it was tougher on them and after on the ruling party and ZEC. The Court accepted ZEC’s contentions without the robust questioning that would have exposed its weaknesses.
The manner in which the court handled the case and the outcome left many opposition supporters feeling hopeless, believing that respite would not come through the formal legal and political processes. A lack of trust and hope in the formal processes and institutions is a recipe for chaos in a polity. For a start, in future, there might be greater apathy as voters feel their votes will not make a difference if the formal processes and institutions are contrived against them. When people lose confidence in the formal processes and institutions, it might cause them to look to informal channels to pursue their political dreams and objectives. This could spell disaster and chaos, especially in a country where the class of young, unemployed and frustrated voters is growing at a fast rate.
It is important therefore to lead serious and fundamental reforms of the formal processes and institutions which are critical for peace and stability. If these fail, and if there is a perception that they have failed or they have been captured, it could affect the path of peace and democracy in the country and results could be catastrophic for the entire nation.
For the opposition, it is important to regroup and re-energise its base. Chamisa ran an incredible campaign. No opposition leader had ever won at least 2 million votes in a national election. That he managed to achieve this in less than 6 months and against heavy odds which included very limited financial resources is an incredible feat. Even though Mnangagwa and ZANU PF were declared winners and have formal power, Chamisa and the MDC Alliance retain a significant amount of informal authority. The opposition should harness this informal authority to its advantage.
The election revealed demonstrated the significant weaknesses in Zimbabweans electoral systems. However, the opposition needs to draw lessons from its own campaign so that it continues to do the right things while correcting any weaknesses it may identify. Most importantly, the task of party re-building and strengthening is critical while at the same time pursuing fundamental reforms at the national level.
Dr Alex T. Magaisa teaches public law at Kent Law School, the University of Kent. He was recently a Reagan-Fascell Fellow at the National Endowment for Democracy in Washington D.C. and was previously an adviser to Morgan Tsvangirai when he was Prime Minister of Zimbabwe and leader of the MDC. He also advised the constitution-writing process in Zimbabwe firstname.lastname@example.org or email@example.com Twitter: @wamagaisa