THE outcome of the disputed election will be resolved by the Constitutional Court (ConCourt) when it sits tomorrow. At stake is the determination of the winner of the presidential election. But beyond that, there is something more fundamental in this electoral process, which is outside the broad jurisdiction of the highest court in Zimbabwe.
It is the question of legitimacy — for so long elusive in the second half of former President Robert Mugabe’s rule and one which is slipping away from his successor’s grasp.
Guest column: Alex T Magaisa
It is the issue of legitimacy that has the potential to unlock opportunities that have hitherto been closed to Zimbabwe. Unless the political authority in Zimbabwe is seen to have earned legitimacy, these opportunities will remain out of reach and chances of economic and social recovery will be severely limited.
Political authorities everywhere covert legitimacy. Legitimacy matters because it provides justification for the exercise of power and compels obedience among citizens without having to resort to force. It helps to convert raw power into authority. With legitimacy, the political unit’s power to govern is accepted and citizens generally obey without coercion.
There are many ways by which citizens might be compelled to comply with the political authority — it could be citizens’ fear of punishment or their habit of following long-held traditions. It is more preferable, however, to have citizens complying because they believe those in power have the right to exercise political authority. In a democracy, supporters are more likely to comply. Opponents will also comply, but they must be convinced that the process that resulted in the leadership was free and fair. It is this that gives them hope that they might also have a chance in future. If, on the other hand, the process is not fair and they are left in a hopeless state, it will be harder to secure their compliance.
It is easier and more efficient to govern when citizens are willing and prepared to comply rather than where they have to be forced to do so. This right to rule, this justification to exercise political authority is highly coveted. Even the worst dictators in history have desired to create the illusion that their mandate is legitimate.
President-elect Emmerson Mnangagwa has been acutely aware of the limitations of his power, having earned the presidency through a coup orchestrated by the military. He got into power, but he was painfully aware that he was not democratically elected. Power had been handed to him. He hadn’t earned it democratically. He has desperately desired to earn his own mandate and with that, legitimacy. Not only would it give him the justification to govern, but it would also free him from the clutches of the military generals who had handed power to him last November.
The principal purpose of this election was to cure the legitimacy deficit. Even usurpers understand the need to ensure that their rule is legitimated. But they had not anticipated the challenge that Mnangagwa faced from Nelson Chamisa and the MDC Alliance. What was supposed to be an easy path to legitimacy has become a calamitous journey. While Mnangagwa was controversially declared the winner of the election, the one thing that he coveted most, legitimacy, remains elusive. The outcome of the election is in dispute.
The ConCourt will sit in judgment of the election dispute this week and while the issue of legitimacy may feature heavily in the arguments, the court is only likely to resolve the issue of legality, with the legitimacy question featuring beyond the four walls of the courtroom. There are other actors and other forums where the issue of legitimacy will have to be deliberated and decided.
There are different forms of legitimacy, but for present purposes, only two are of particular interest: input and output legitimacy.
Input legitimacy, also referred to as procedural legitimacy, is determined by compliance with procedures that establish the political authority. Whatever procedures there are for the selection or appointment of a political authority must be followed. These procedures may be democratic, but they may also be undemocratic. Therefore, a chief has legitimacy in his jurisdiction as long as the rules are followed. Likewise, in electoral democracies, governing parties have legitimacy if they have been elected in accordance with the legal and electoral procedures.
Output legitimacy, also known as performance legitimacy, rests on the performance of the political authority. Citizens give up some of their freedom in return for the rewards that come from the political authority. People are prepared to co-operate with the political authority because they expect certain benefits, for example, service delivery, security, stability and protection. Thus whereas input legitimacy depends on the quality of compliance at the front-end, output legitimacy depends on the quality of performance of the political authority during the course of governing. The government might earn legitimacy depending on the quality of its performance.
Elections and legitimacy
Although there is criticism, it is generally agreed that the electoral process is a critical element in the establishment of input legitimacy. Not everyone agrees that electoral democracy creates legitimacy. Some argue that legitimacy may be created or lost depending on the performance of government. In other words, legitimacy is dependent on the quality of government. The focus in this case is more on the output side of the political system.
However, these views notwithstanding, we will go with the view that the election is an important process of creating legitimacy. For this to work, elections must be free, fair and credible. This is why domestic laws and international instruments are crafted to provide guidance on the conduct of free, fair and credible elections. For the election to be legitimate, it must be conducted in accordance with those rules. The counter-point is that there cannot be legitimacy if the electoral rules are not followed.
Mnangagwa was also aware of the importance of at least creating the illusion of compliance with electoral rules. This is why he was open to international observers and media. He wanted an endorsement of elections as free, fair and credible. The election was not just to seek approval from the Zimbabwean electorate, but also to gain acceptance by the rest of the world. It was a broad prayer to legitimate his rule especially after the controversial usurpation of power last November.
Political equality and legitimacy
The pursuit of legitimacy was never going to be a simple affair. A core element of the electoral process is political equality. It has been argued by political theorist Robert Dahl and it is generally accepted that political equality is the foundational norm that confers legitimacy to a political authority. There must be political equality in the political system.
Indeed, this basic norm of political equality is guaranteed in the Declaration of Rights of our Constitution. Both the equality and non-discrimination clause in section 56 and the political rights provision in section 67 provide a firm foundation for the principle of political equality. Political equality is also guaranteed as one of the basic principles in section 2 of the Constitution and likewise equality of citizenship is firmly provided for in Chapter 3 of the Constitution.
It follows, therefore, that for there to be legitimacy, the electoral process must be based on the basic norm of political equality.
Any conduct that undermines political equality would seriously compromise legitimacy. Were all candidates treated as political equals? Were voters given equal treatment? Was there a level playing field for all parties and candidates? These are critical questions that impact political equality.
This is why a fundamental question to be confronted in the present electoral dispute is whether the electoral process was conducted in accordance with the basic norm and right of political equality as guaranteed by the Constitution. This introduces a fundamental rights and freedoms angle to the electoral dispute. More broadly, the question can be framed as whether there are any factors in the election which affected political equality so as to render it illegitimate.
Who determines legitimacy?
In a BSR back in May, we wrote in anticipation of the critical significance of the legitimacy question, “For [the election] to have legitimacy, the next government must be elected in accordance with Zimbabwe’s electoral laws and also regional and international standards. But who will make this determination? Who will determine that procedural legitimacy is satisfied?” It is important to understand the key actors who have a say in the legitimacy question.
First, the issue of legitimacy is down to the people of Zimbabwe. As the electorate, they are the ones who give consent. In section 2(f), the Constitution recognises that authority to govern derives from the people. The same principle is restated in provisions regarding the authority of the executive, legislature and the judiciary. The election on July 30 is supposed to be the marker of that consent. But there is a serious problem.
The problem is that both the process and outcome of this election are disputed. There’s about half the population which is not satisfied, not just with the outcome of the election, but with the process, which they believe was unfair and presents no hope of ever changing in future. People are more likely to accept defeat if they believe the process was fair and that under the same system, they have a chance in the future. When these elements are absent, it is very hard to create consent which is necessary for the establishment of legitimacy. While the people voted, the extent to which the election has conferred input legitimacy is still in doubt.
The courts of law
The second source that may help in deciding the legitimacy question is the courts of law. This is why the ConCourt has a historic task next week and much hangs on how it handles the matter. One argument is that what the courts will decide is not really legitimacy but legality of the election. It is easy to confuse the two but legitimacy and legality are different concepts.
Legality has to do with compliance with the law — something is either legal or not — whereas legitimacy is a broader and more fluid concept which includes, but is not limited to or constrained by law. It is about what is right or appropriate, the legalities notwithstanding. Something may be legitimate without necessarily ticking the legal boxes and vice versa something may be legal but fail on legitimacy grounds. A soldier who shoots and kills civilians might argue that his actions were legal as he was following orders, but his actions will fail the legitimacy test. The ConCourt might well resolve the question of legality, but its decision might not resolve the issue of legitimacy.
The international community
The third constituency that has a role in the legitimacy question is the international community, although these is no single definitive answer from this broad array of nations. Mnangagwa recognised the importance of the international community when he took power last November. He set out on a charm offensive, trying to woo the international community, particularly the West, from which Zimbabwe had long been isolated.
He had no problems with the regional community, represented by Sadc and the African Union — both of which never had serious objections to the previous Mugabe regime. China and Russia have always been willing to accept and indeed support Zanu PF rule, with ties going back to the liberation struggle and now strengthened by the two big nations’ economic interests in Zimbabwe.
The West on the other hand has been very critical of past elections and governance in Zimbabwe. Mugabe had banned both Western observers and media from observing or covering elections in Zimbabwe. In return, these constituencies had withdrawn their acceptance of elections in Zimbabwe and ostracised the country. Mnangagwa sought to change this, first by unbanning Western media and inviting Western observers, for the first time since 2002 and even applying to rejoin the Commonwealth before the elections. Countries like Britain were perceived to have warmed up to the Mnangagwa administration, while the United States remained sceptical. The European Union also remained cautious.
The election was, therefore, an opportunity to make a new bid for acceptance as far as the sceptical outsiders were concerned. Much depended on their acceptance of the electoral process. Having managed to create a façade of peace and non-violence up to election day, the Mnangagwa administration almost succeeded in persuading the sceptical nations. “Almost” because election observers from the EU and the US had already sounded a cautionary note on the election process and were awaiting the election results.
But then quite inexplicably and against all logic, the Mnangagwa administration then literally shot itself in the foot with a series of calamities that were entirely avoidable.
The first was the slowness in the announcement of the presidential result, which did not make sense to citizens and observers given that presidential ballots were almost always counted first. While the law allows up to five days to announce election results, there was no sound reason for taking more than 48 hours especially since results were posted outside polling stations at the close of counting. The alleged failure to post results at some polling stations was itself a violation of the law. It sowed seeds of doubt in the election process.
Excessive use of force
The second was the controversial deployment of soldiers in the streets of Harare on 1 August ostensibly to quell an opposition demonstration which had allegedly turned violent. The soldiers shot and killed civilians in cold blood. The excessive use of force was a heinous and inexplicable act, which raised a big red flag on Zimbabwe, attracting negative headlines around the world. It didn’t help that Mnangagwa, as President, did not take responsibility prompting questions as to who was really in control of Zimbabwe.
Harassment of opposition
The third was the further deployment of soldiers in the high-density suburbs of Harare and Chitungwiza, where they went on a rampage, harassing and beating up people. All this happened while international media was still focused on Zimbabwe. It generated more negative headlines at a time when the Mnangagwa administration was desperate for good publicity.
Targeting opposition leaders
The fourth was the apparent persecution of leading opposition figure, Tendai Biti and fellow opposition leaders who had to go into hiding for their safety and security. Biti himself tried to flee to Zambia where he sought, but was denied political asylum in dramatic circumstances which also drew more bad publicity for the regime. The administration’s attempt to paint itself as different from its predecessor under Mugabe had failed dismally. It remains restricted to the same allies it had during Mugabe’s tenure.
Mere victory was never going to be enough for Mnangagwa. It had to be victory that was accepted both internally and externally. So far that goal remains as elusive as it was during the Mugabe era. The shoddy performance by the Zimbabwe Electoral Commission and the administration’s refusal to carry out and enforce basic reforms are at the centre of these challenges that have affected input legitimacy.
There is, of course, an opportunity to generate legitimacy through performance — output legitimacy. That means looking at economic performance, adherence to the rule of law, establishing impartial and efficient public institutions which deliver services and goods to the citizens in an efficient manner. But can this really be achieved without the acceptance and support of the international community? This is highly unlikely. Besides, the administration is already showing signs of backsliding, what with the killing and harassment of opposition supporters and the rampant use of repressive laws such as Public Order and Security Act. The administration is struggling to secure compliance and it’s having to resort to coercive instruments of the State, just like its predecessor from whose shadow it was trying to escape.
Apart from corruption, incompetence and mismanagement, international isolation has been a severe handicap on Zimbabwe’s prospects for progress. The lack of legitimacy has been at the centre of this isolation. This election was supposed to unlock the legitimacy question and probably open vast opportunities for Zimbabwe. But it has been poorly handled.
Countries that had warmed up to the administration have become coy. The post-election violence by the State was a huge source of embarrassment. The refusal to take responsibility and to account made it worse. Without this acceptance, legitimacy will remain elusive.
The ConCourt will have its say this week. But it is unlikely to be the final word on the elusive question of legitimacy. That may require more creative solutions. What is certain is that, whatever the outcome, if the legitimacy deficit persists, it will always be a serious burden upon the country and sadly, it is the ordinary people, not the political elites, who suffer. This is why politicians across the board have a huge task on their hands.
This article was first published on www.bigsr.co.uk
Alex T Magaisa is a lawyer in Zimbabwe, lecturer of law in the United Kingdom, Zimbabwean political strategist, and blogger. He currently lives in the UK