It’s nearly a year since the regime of former President Robert Mugabe fell in a military coup and three months after a controversial election. An election that was supposed to sanitise and legitimise the regime that took over failed to achieve its core purpose. The Emmerson Mnangagwa regime holds power, but its great weakness is that it is bereft of legitimacy. Its most ardent supporters deny this, but it is the lack of legitimacy that is the single most significant impediment to international acceptance. The country is in an economic crisis which is fast spiralling out of control.
guest column: Alex T Magaisa
The legitimacy deficit is confirmed by two reports of international election observers which were published in October: the European Union Observers Mission and the NDI/IRI Observer Mission from the United States. Both observer missions issued highly-critical reports of the July 30 elections. It is important to analyse the political and economic significance of these reports.
Legitimacy
We have covered the issue of legitimacy in previous BSRs, but it is necessary to highlight key elements in order to provide context to the role of election observers and why their views matter. The type of legitimacy with which we are concerned here is input legitimacy. Also known as procedural legitimacy, it is about the procedures and processes that confer power on a political authority. In democratic systems, input legitimacy is conferred through elections. A political authority is regarded as having input legitimacy if it is a result of an election that is free, fair and credible.
Whether or not an election meets the standard of free, fair and credible polls primarily depends on the opinion of the electorate. It is up to the electorate to determine whether it has participated in a free, fair and credible process. This is usually demonstrated by an acceptance by winners and losers of the outcome of the electoral process. It does not mean everyone agrees with the outcome. The losers will obviously be unhappy, but they accept the result because they acknowledge that it would have been conducted freely and fairly. This confers legitimacy on the election.
However, as we have seen in a previous BSR, where losers’ consent is withheld, this can impact on legitimacy. There are many reasons why losers may withhold consent, but usually it is because they question the manner in which the election was conducted. This withholding of the losers’ consent should not be a problem for the winners if the losers’ complaints are isolated and unsupported by other key actors in the electoral process. It becomes a big problem if the losers’ complaints are backed by other actors.
Election observers are key actors in the election process. They can be local, regional or international. Their role is to observe the conduct of elections and report on their findings. They give an opinion as to whether elections were free, fair and credible.
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They usually do so using standards in national domestic law, regional and international standards. There are a number of standard-setting agents at local, regional and international level that have developed a set of standards deemed desirable in the conduct of elections. While they are not legally obliged to follow them, members states or signatories are expected to comply. In the case of Zimbabwe, both the African Union (AU) and the Southern African Development Community (Sadc) have developed instruments that set standards for democratic elections.
Election observers are, therefore, important players in the legitimation of an election process. They help to bolster the legitimacy of the election if they determine that the election was free, fair and credible. By contrast, if they determine that the election was not free, fair and credible, they diminish the legitimacy of the election.
Incentive for good behaviour
However, election observers also serve an important, indirect purpose. Their mere presence before, during and after an election can be incentive for good behaviour on the part of electoral authorities and competitors. Electoral authorities are usually keen to be endorsed as having run a proper election. The key players, especially the winners, want endorsement of the elections by observers as it bolsters the legitimacy of their victory. This provides an incentive for good behaviour.
However, it might also lead to cosmetic behaviour which is designed solely to please election observers. This is why election observers are encouraged to be present on a long-term basis, covering periods long before, during and after the election. This will give a better picture of the election process since a lot of things that affect and influence an election happen before and after polling day.
Source of comfort
In weak democracies, opposition parties welcome and look to election observers as a source of comfort in an environment in which the State and its institutions often take a partisan role towards the ruling party. International election observers in particular are seen as key actors to whom the opposition can relay concerns over the skewed election process and the unfair behaviour of the ruling party and State institutions. They see international observers as the ears and eyes of the world who can validate their complaints and probably nudge the ruling party into behaving well.
Democratic consolidation
Apart from incentivising good behaviour, election observers are also seen as promoters of democratic development and consolidation through the recommendations they issue after elections. Their role is not limited to identifying shortcomings of the electoral process, but also to providing ideas and advice on how the electoral process might be improved. In this way, election observation could serve as a learning resource for fledgling democracies.
Conditionality and leverage
However, others take a dim view of election observation, which is seen as part of the hegemonic enterprise by powerful Western nations. They are seen as part of the political conditionality which allows Western powers to impose themselves and their interests upon smaller and weaker States. By and large, election observation is more prevalent in the developing world. Although democracy is more established in the West, critics argue that this does not mean their elections are free of shortcomings. Thus aid is often tied to certain conditions, including opening up to election observation and promoting democratic principles and institutions.
It is argued that the views of election observers may be motivated by other considerations, such as the foreign policy of their home government and their economic interests. Writing in the African Journal of Political Science in 2002, Khabele Matlosa points out that both election monitoring and observation “have also tended to be used as part of the political conditionality and leverage through which industrial countries impose their hegemony over developing countries” and in the process “undermine their already enfeebled national sovereignty”. This argument based on sovereignty was often invoked by Mugabe to keep out Western observers whom he accused of being part of the regime change agenda promoted by their governments.
The problem might be solved by having an international body which has a mandate to monitor and observe elections across nations. However, for practical reasons, this is unlikely to happen and it is likely that election observation will be performed by those that have resources and interests in promoting electoral democracy.
Incentive for bad behaviour
While the conventional view is that they provide an incentive for good behaviour, critics argue that they can also incentivise bad behaviour of ruling parties when election observers endorse as free, fair and credible elections that fall short of those standards. Regional observers such as Sadc and the AU have routinely passed elections in many countries as free and fair, even though citizens complain of serious electoral violations. It has left many citizens across the continent describing regional organisations as dictators’ clubs as they routinely back incumbents and are too quick to endorse elections, even when there are clear disputes. This endorsement of bad practices or elections perpetuates oppression.
The lack of confidence in regional observers leave most opposition parties relying on Western observers, which is regrettable because the continent needs to build strong and reliable institutions and avoid dependency on the West. However, as long as regional observers
Regulatory capture
In some cases, election observers can be captured through co-optation or even outright bribery which leads them to pass favourable reports on elections. Sometimes such capture happens through natural processes of interaction between election observers and electoral authorities to the point that they end up being too familiar. This leads to proximity and familiarity between election observers and electoral authorities, where the former end up sympathising or even trying to explain the behaviour of the latter.
Regulatory theory has an explanation for this phenomenon, which is referred to as “regulatory capture”. This is where a regulator ends up being captured by persons whom it is supposed to regulate. The regulator becomes weak and ineffective, serving the interests of the regulated at the expense of the public good. Likewise, election observers, especially the local and regional ones, who spend a lot of time interacting with electoral authorities may end up being captured, even unknowingly, by the electoral authorities that they are supposed to watch over.
Regulatory theory has mechanisms to prevent and mitigate the effects of capture. These include rotation, where instead of having one regulator dealing with the same institution, there is rotation of regulators. Likewise, it is important to rotate staff and election observers at these organisations.
Zimbabwe and election observers
Zimbabwe has had a long history with election monitors and observers since independence in 1980. In 1980, the first multi-party democratic elections attracted observers from the Commonwealth and other nations at a time when there were no set standards. One observer who was part of the Commonwealth team, Stephen Chan has previously recounted how they had to develop rules and standards as they went along during that historic mission in 1980.
There was a great deal of international interest in Zimbabwe’s elections in 2000, following heightened activity in the country, including the farm takeovers that escalated in February that year. Western observers were highly critical of both the 2000 and 2002 elections and thereafter, Mugabe banned them from observing future elections.
The situation changed in 2018 after the dramatic fall of the Mugabe regime. One of the early promises made by the new leader, Mnangagwa, was that the country would accept international observers. This was consistent with a new foreign policy which was based on openness to the world and re-engagement with the West. After years of estrangement and isolation, Mnangagwa wanted to bring back Zimbabwe into the community of nations. This was evident in his oft-repeated slogan which promised that “Zimbabwe is open for business”.
Mnangagwa was conscious of the legitimacy-deficit following the coup and he wanted to hold an election which would confer him with legitimate power. He could not achieve that without the endorsement of the election by Western observers. Thus, he radically changed the policy of his predecessor and opened up to Western observers. In doing so, he was confident that the election would meet the minimum standards of a free, fair and credible election. However, he was also taking the risk that Western observers would refuse to endorse the election, in which case his legitimacy would be undermined.
If Mnangagwa’s approach was not motivated by principle it was definitely a pragmatic move. It was not because the man who had served Mugabe loyally for more than 50 years had suddenly become a born-again democrat. He knew, however, that if he was to avert the fate of his old boss who had plunged Zimbabwe into an economic mess, he needed to drop the streak of stubbornness and rebuild strong ties with the West. They had imposed a regime of sanctions since the early 2000s and solving the democratic deficit was part of the conditions of lifting those sanctions. He needed to charm the West into believing that he was a different man from his old mentor. Rescinding Mugabe’s ban on Western observers was one of the key acts in this process.
Verdict
Although there were a number of observers from around the world, including Sadc and the AU, the ones that drew the most attention were those that had previously been banned: the European Union (EU), the United States and the Commonwealth, the latter because Zimbabwe is angling for a return to the group of largely former British colonies. Now the EU and the US missions have issued their final reports and both are highly critical. In short, Mnangagwa has not received the endorsement that he desperately wanted from the Western observers.
Joint IRI/NDI Observer Mission
The essence of the Joint IRI/NDI mission report is captured in the following passage in its report:
“While some significant incremental improvements were demonstrated in the 2018 elections, Zimbabwe has not yet established a process that treats all political parties equitably and allows citizens to be confident that they can cast their vote and express their political opinion free from fear of retribution. Consequently, Zimbabwe‘s democratic trajectory is not certain and the international community should remain vigilant and engaged in supporting the people’s call for a genuine transition.”
It noted that the limited improvements were overshadowed by “important shortcomings” which gave rise to “deep concerns that the process has not made the mark”.
This was by all accounts a damning verdict on the election process. It found that the Zimbabwe Electoral Commission (Zec) had not done enough to build public confidence in its credibility and impartiality and recommended that it adopts a more transparent approach to build public trust and improve perceptions of credibility. It also found that Zec had adopted an overly “legalistic” approach to management of the election instead of cultivating a relationship with stakeholders which inspired more confidence in its process.
Other key issues of concern cited by the IRI/NDI Mission included the military crackdown on the opposition after polling day which led to the death of six civilians, “politicisation of food aid, intimidation of voters, partisanship of traditional leaders and inordinate media bias”. The full report of the Joint IRI/NDI observer mission can be found here.
EU Observer Mission
The EU’s observer mission report was equally critical. According to the EU mission, while the elections were competitive and political freedoms were honoured and the voting on polling day was peaceful, it found that “many aspects of the 2018 elections in Zimbabwe failed to meet international standards”. It noted a number of areas of concern including: Zec’s lack of independence, a playing field that was not level, a legal framework that failed to implement the reforms in the 2013 Constitution, failure to avail the right to an effective legal remedy, misuse of state resources in favour of the incumbent and the heavily-biased State media.
The EU mission’s verdict on Zec was particularly damning, stating that “the electoral commission lacked full independence and appeared to not always act in an impartial manner”. The EU mission encouraged Zimbabwe to build confidence in the electoral process and institutions, including Zec independence and that the electoral management body works on its communication systems to enhance confidence. Like the IRI/NDI joint mission, the EU mission urged Zec to work on its results management process to enhance verifiability and traceability of results. According to the EU Mission, “the final results as announced by the electoral commission contained numerous errors and lacked adequate traceability, transparency and verifiability.”
It also condemned the “excessive use of force by security forces and abuses of human rights in the post-election period” which “undermined the corresponding positive aspects during the pre-election campaign.”
Broader implications
It is quite evident from the two final reports from the EU and the US that the election failed to meet the minimum standards that would qualify it as free, fair and credible. A good outcome for Mnangagwa would have been for the two observer missions or at least one of them, to have given an unequivocal endorsement of the elections. The fact that they did not has several implications for the Mnangagwa regime:
Like the Mugabe regime before it, it stands on a weak ground and is lacking in input/democratic legitimacy. While from a legalistic perspective it is the government of the day as confirmed by the electoral authority and the highest court in the country, it is democratic legitimacy. An endorsement of the election by international observers would have bolstered its input legitimacy.
The failure to get clear and unequivocal endorsement by international observers is a blow in the government’s efforts at international re-engagement. The invitation of Western observers was a key part of the plan to demonstrate that Zimbabwe had changed, but the damning verdict on the elections means that the country has failed to satisfy the minimum requirements. Sanctions legislation like Zimbabwe Democracy and Economic Recovery Act of 2001 lists democratic and electoral reforms are predicate conditions. This means the Mnangagwa regime has an onerous task of convincing both the EU and the US that it is serious about political reforms.
The negative reports have dealt a big blow on the Mnangagwa’s efforts to unlock the levers to help revive a broken economy. The approach of the Western powers and its citizens, both individual and corporate, is guided by the views of their observer missions. If they had endorsed the electoral process, the governments would find it easier to endorse the outcome and work with the government. Consequently, their citizens would also have confidence to deal with Zimbabwe. The damning reports mean political risk in relation to Zimbabwe is still unacceptably high. This lowers prospects for investment. It would also have been easier to rebuild relations with multilateral institutions like the International Monetary Fund and the World Bank and also managing debt-relief negotiations with the Paris Club of Western debtors, who are owed millions by Zimbabwe.
What’s to be done?
Although Western observers have issued highly critical reports and have withheld clear and unequivocal endorsement of the July 30 elections, they have also given recommendations which are important. This means while input legitimacy is weak, the regime can still redeem itself through performance if Mnangagwa commits to his mantra of being a “listening President”.
The regime should study and implement the recommendations made by both the EU and US observer missions and other missions. These recommendations deal with democratic issues, including the independence of Zec, realigning laws to the 2013 Constitution, removing State media bias, ensuring independence of traditional leaders, avoiding abuse of State resources.
These political reforms are achievable, but they require serious political will on the part of the government. The problem is that the regime has apart from rhetoric failed to implement even the most basic reforms. It does not take much effort or money to ensure that the public broadcaster performs its role as an objective and non-partisan media. It does not take much effort to ensure an independent Zec and judiciary. It’s all about building credible and enduring institutions with men and women of integrity.
It’s a source of deep embarrassment that citizens have to pin their hopes on foreign observers to nudge their own governments to conduct free and fair elections. It shouldn’t be like that. That they are reduced to that situation is because their governments have made the situation impossible. The State and its institutions, such as the electoral authorities, the police, media and the judiciary are captured by the ruling party. Hence, when they raise hue and cry, it is not to their institutions, which have continuously let them down, but to foreign observers and international institutions. It shouldn’t be like that, but that is how the governments have failed the citizens.
Conclusion
When Mnangagwa took office last November, he arrived with much promise to an exuberant and expectant nation. After 37 years under Mugabe, the fact that his long-time lieutenant was taking over did little to dent their hopes. They should have known that while Mugabe had gone, the system that he built had remained firmly in place.
Mnangagwa was good with words and for a while, he charmed the world with his rhetoric of openness and a new beginning. His invitation to international election observers was a good step which was rightly hailed. But he should have complemented it with real and effective changes to the electoral system. However, he was never going to make significant changes that would expose him to electoral defeat. The election was meant to sanitise the power grab that had taken place last November. The invitation of election observers was meant to smooth the path towards re-entry into the community of nations.
The critical reports show that the country still has a long way to go. Regime sympathisers want the Mnangagwa regime to be accepted by the international community, but they lack the courage to tell the regime of the simple steps it needs to regain legitimacy and ease the process of acceptance. They are ready to tell the world what to do, but they are coy when it comes to their own government. They could start by studying the reports of the election observers invited by the government and encouraging the government to implement the recommendations.
WaMagaisa
