Why institutions fail

Guest Column: Alex Magaisa

There is no country with a perfect system of government. Neither is there a single formula for economic success. However, as Daron Acemoglu and James A Robinson argue in their acclaimed work, Why Nations Fail, nations that have succeeded or are on a path to success tend to be those with “inclusive institutions”.

By contrast, they argue, nations that are dominated by “extractive institutions” controlled and benefiting only a small minority of elites tend to fail. In line with this reasoning, establishing strong and inclusive political and economic institutions is critical in nation-building. We argue, therefore, that without strong and inclusive institutions, prospects for recovery in Zimbabwe are likely to remain severely limited.

However, the current regime is engaged in an orgy of emasculating and further weakening national institutions, instead of strengthening them and giving them independence. 

For example, national institutions, such as the military and police, have become severely damaged and disgraced in the eyes of the public and the world at large. It will take a very long time and great effort to repair the damage that has been done. 

In this BSR, we examine why and how important political infrastructure has decayed over the years. The current regime has failed to stop the demise of institutions. For purposes of this article the focus is on political institutions established under the Constitution, although a broader analysis could extend to economic institutions such as property rights.

While there is a general view that democracy is facing major challenges, particularly from a surge of right-wing populism in Western countries, it is often argued that the existence of strong institutions in those nations has been an important line of defence for democracy. Things could be far worse without the existence of strong and more inclusive political and economic institutions. They have, so far, been able to withstand the excesses of the new populism that threaten liberal democracy.

 These institutions include the judiciary, the media, an independent and professional bureaucracy, independent and non-partisan organs of the State such as the military, intelligence, police and prosecution services. 

They also include a strong and driven civil society which remains vigilant.

Also important in this defence are principles such as constitutionalism and the rule of law. It is the strength and resilience of these institutions that have saved the day.

 Nations that are struggling often lack strong and inclusive institutions. 


Instead, there is a small political elite which tries to emasculate existing institutions and create new extractive institutions through which they seek to protect monopolies and extract rents. 

They create extractive institutions manned by their business friends, associates and advisers. It is in this class of “extractive institutions” that the recently announced Presidential Advisory Council falls.

An important part of the solution to Zimbabwe’s deep crisis is a root and branch overhaul of institutions to ensure their independence and to facilitate their ability to perform a truly national, non-partisan and professional role.

Why do strong political institutions matter?

 Strong political institutions matter because they provide checks and balances to governmental power. The Judiciary, for example, has the power to review the actions and decisions of the government. 

When a person is aggrieved, they can approach the court for judicial review or to challenge the constitutionality of the government’s conduct. But this is worth nothing unless the Judiciary is independent and impartial.

 Also, when a person is aggrieved, they can approach the police to file criminal charges and they can expect the prosecution to take the matter to court and prosecute the accused. Likewise, the accused can expect that the police and prosecution will respect and honour his rights in terms of the Constitution. 

Citizens expect soldiers to protect and defend the nation from external aggression and where necessary, in very exceptional and extraordinary circumstances to help maintain law and order.

 However, in all this, citizens expect the police, military, prosecution services to respect the constitution and their fundamental rights and freedoms. 

They expect these public officers to conduct themselves professionally, impartially and in a non-partisan way.

Strong institutions are more effective in delivering their mandate if they remain undiluted by political interference. 

It means that civil servants who serve in these institutions make decisions professionally and they do not have to bow down to the whims of political elites.  

It is not that electoral bodies in older democracies are perfect in their delivery of their mandate, no. It is that as institutions, they generally act professionally and objectively so that even the losers, whatever their grievances, do concede defeat. 

A fair system is one that produces an outcome which both the winner and loser can accept because it run in an open and transparent way without apparent biases. 

The moment an electoral institution shows inclinations or biases, it damages the integrity of the process. Investors value fairness and a nation that shows a predilection towards unfairness is unlikely to attract investment.

 Investors also look to strong institutions for the protection of property rights. If there is a dispute, they want to find recourse through the law and the courts. This requires independent courts and respect for the rule of law. A country where the rule of law is given short shrift, where law enforcement agencies are weak and compromised is unlikely to inspire confidence.

Therefore, strong institutions do not only protect citizens but they also serve as an incentive to foreign investors. Between two or more countries with similar resources and opportunities, an investor is more likely to choose one which has stronger and more stable institutions.

Recent events have exposed some of the key institutions:

The military and police are two institutions which have been accused of egregious human rights violations by no less a body than the Zimbabwe Human Rights Commission (ZHRC), which has been an island of strength and honesty in a sea of brutality and callousness. 

Images that have circulated in international media have exposed Zimbabwe as a lawless State in which those charged with protection of human rights are at the forefront of violating them.

 It did not help that these institutions offered blanket denials of the involvement of their members when there’s abundant evidence to the contrary. It is one thing to commit violations, but to be dishonest about it adds to the already damaged reputation. 

 The prosecution and lower levels of the Judiciary have also been exposed for compromising the justice delivery system. Lawyers complained of the blanket refusals of bail and the denial of basic rights to which accused and detained persons are entitled at law. This week, lawyers marched against injustice and brutality, reminding the government to protect the rule of law. These images were shown around the world, again, confirming the poor state of affairs within the justice delivery system. The response of the Chief Justice has been dismissive.

How institutions are weakened

 It is important to examine how these national institutions have been weakened and turned into extractive institutions that benefit the political elites.  

Underfunding

One way of weakening institutional mechanisms is through deliberate underfunding of national institutions. Constitutional commissions and other bodies have been perennially underfunded. It might be argued that the government has limited resources. However, it is important to ensure that there is equitable allocation of resources so that institutions are able to effectively carry out their functions.

Only recently, the government set up a commission of inquiry to investigate the August 1 killings. The government did not find it difficult to find significant resources for that short-term project, whereas established bodies like the ZHRC with the same mandate have been perennially underfunded, compromising their ability to perform their duties.

The framers of the Constitution understood the need to protect the financial independence of these commissions. This is why section 325 provides that the government must ensure adequate funds are provided commissions and other institutions “to enable them to perform their functions effectively”. The provisions on the budget require that the Finance minister must make specific allocation of funds to the commissions. This is designed to free them from the control and oversight of political ministries. However, these provisions are hardly followed in practice.

Compromising the “human factor”

Another way to weaken institutions is through compromising the human factor. The human factor is a concept which focuses on the people in charge of institutions. With roots in the risk studies, the theory of the human factor is that in determining the cause of a problem or in trying to prevent a problem, it is necessary to focus on the conduct of the human agents.

Therefore, when there is a car crash, rather than go looking for a fault in the vehicle, the human factor theory draws us towards the conduct of the driver. This is where it is often said a crash was due to “human error”. It’s an acknowledgement that the human factor, rather than the machine, is the problem and oft-times it is.

 We can adapt this theory to institutions of the state or indeed any other organisation. An institution might have the best rule-book and systems in place, but it would still fail if the people in charge of its affairs are morally and professionally compromised. In other words, the problem is not with the rules and systems but with the human agents who run these institutions.

 Our Constitution is very clear regarding how our institutions ought to be run. From the Judiciary, civil service, the military, police, intelligence, traditional leaders and constitutional commissions such as ZEC, the Constitution sets out core principles of non-partisanship, non-interference in politics and the protection of human rights.

 However, despite this clear rule-book, with very few exceptions, these institutions are generally compromised by the human agents operating within their systems and structures. They conduct their affairs in a partisan, biased and politically compromised manner. The problem is not so much in the constitution or legislation, but in the people running the institutions. They are too entrenched in a system which has developed an anti-reformist culture.

The human factor can be compromised through bribery, subjecting officers to conditions of penury, thereby, forcing them to behave and earn rewards, appointing friends and relatives or other persons who have conflicts of interest or quite simply using sheer force and intimidation to cow officers into submission.

The Kenyans recognised the importance of the human factor in respect of their Judiciary when they had a new Constitution in 2010. They knew it was pointless to change the rule-book while retaining all the old judges. So they retired all the judges and advertised the positions after which appointments were made using the new procedure. The Kenyans did not only change the rule-book, they also changed the human factor.

We tried to do the same in Zimbabwe but it was blocked. Hence, although we got new institutional rules, we were stuck with the old human factor in the judiciary and also the prosecution service. In fact, virtually the entire human component of the bureaucracy was retained following the adoption of the new Constitution. It was a new vehicle but with same old driver.

 Deliberately avoiding institutions

 A third way is to simply ignore the Constitution and avoid setting the required institutions. That way, the institution does not even exist. One example is that section 210 of the Constitution requires legislation to set up an independent complaints mechanism to deal with public complaints over the conduct of embers of the security services. This pertains to complaints over the conduct of members of the police, military, intelligence and prison services. Despite this being in the constitution adopted six years ago, no such legislation exists and, therefore, no such independent complaints mechanism has been set up.

 The idea behind such a mechanism was to provide a facility that would enable the resolution of disputes between members of the public and members of the security services. Of course, one challenge would be to ensure the independence of that mechanism so that it is able to provide effective remedial measures in a fair, objective and impartial way. There are useful precedents around the world for such a mechanism for example the Independent Police Complaints Commission in the United Kingdom. It could have, if it existed, have been a useful platform for resolving complaints that have been levelled against the police and the military.

 It is not that President Emmerson Mnangagwa and his team are not aware of the existence of section 210 and the requirement for this mechanism. They are simply not interested. Instead, they go on to set up large bodies that fall outside the constitution, such as his new Presidential Advisory Council. They have also avoided the devolution provisions – a whole chapter of the constitution. They complain that there is no money, but they have enough resources to set up their personal outfits on public funds.      

 Shadowing and undermining formal institutions

 A fourth way is to create parallel structures that shadow and undermine constitutionally-established structures. Such parallel structures perform a role or roles that are typically assigned to formal institutions and they end up subverting the latter. An example is the establishment of the anti-corruption unit in the Office of the President which effectively shadows the Zimbabwe Anti-Corruption Commission (Zacc), which is a constitutional body.

The constitution already created an independent Zacc to deal with corruption issues, so there is no good reason to create a separate unit designed to perform a similar role but outside the parameters of the formal body.  A better response would be to strengthen the Zacc by giving it more resources and guaranteeing its independence so that it can perform its constitutional role without political direction.

 There is also a plausible argument that the existence of the anti-corruption prosecution unit under the President’s Office compromises and undermines the National Prosecution Authority, which is supposed to act independently and without political direction. Setting up an anti-corruption unit as part of the executive, which could be a subject of corruption investigations, compromises its independence and impartiality.

 Furthermore, while it is within the power of the President to set up commissions of inquiry into specific issues, it compromises constitutional bodies that already have that mandate. After the protests and killings on August 1 2018, Mnangagwa set up the Motlanthe Commission of Inquiry to carry out investigations. However, there are already bodies which have that mandate, such as the ZHRC and the National Peace and Reconciliation Commission. It did not help that the outcome of the Motlanthe Commission was announced, but no action was taken afterwards.

 Presidential Advisory Council (PAC)

 The recently announced PAC also potentially creates a parallel structure to Cabinet and is a representation of what we referred to as “elite convergence” – the coming together of political, military and economic elites – back in April 2018. The composition of Mnangagwa’s advisory council is conspicuous by the clear dominance of big capital and known cheerleaders and friends and the absence of labour and the informal sector. 

A study of its terms of reference shows that it is essentially designed to provide advice to the President on policy issues. Section 110(3)(e) of the Constitution provides that one of the responsibilities of Cabinet is “advising the President”.

Cabinet is, therefore, the formal institution that has the constitutional mandate to advise the President. This is important because a constitutional mandate comes with specific duties. The principle of collective cabinet responsibility for example which means each and all Cabinet members are collectively responsible for its decisions emanates from this arrangement. Cabinet members take an oath and are subject to specific laws such as the Official Secrets Act and are also bound by Cabinet conventions.

The PAC is a parallel structure to Cabinet in so far as it holds a mandate to advise the President. Yet it has no legal status within the structures of government. What will it do that is not already part of the constitutional mandate of Cabinet to advise the President? If the President defers to the PAC, will that not undermine Cabinet? It is often the case that those close to the seat of power compete for space and there are high chances of conflicts between the PAC and Cabinet and their respective members. In addition, there already exists a third parallel structure at Zanu PF headquarters in the form of retired comrades who are now full-time officers for the party. 

It’s also about legitimacy and accountability. Cabinet ministers are ultimately accountable to the President, but they also attend and answer to Parliament. The legitimacy of Cabinet ministers arises from their election and their appointment under constitutional rules. There is no such structure as a PAC envisaged in the Constitution. Does it qualify as an institution or agency of the State under section 119(3) of the Constitution, which provides that “… all institutions and agencies of the State and government at every level are accountable to Parliament”?

Then again, the terms of establishment suggest that it will be co-ordinated from the President’s Office which gives it a semi-official status. The terms also state that government will mobilise resources to fund the PAC and that members will be entitled to honorarium. Whether or not those resources will be drawn from public funds is left vague. But if they will be drawn from public funds, then this should trigger legal obligations for members of the PAC.

 Ignoring/dismissing institutional output

 Finally, institutions are weakened when their output is ignored or dismissed and trashed by the executive arm of the government. The effect of this was evident in the 2000s when the judiciary was effectively compromised through government bashing, forced retirements and packing the bench with pliable personnel. More recently, the ZHRC has been trashed by the government after producing a report that was critical of the government’s brutal response to protests.

The Auditor-General, Mildred Chiri, has been one of the unsung heroes over the years, diligently performing her work and producing critical reports, but nobody in government paid attention to it. Another person might have been demotivated by the attitude of her bosses, but to her credit, she and her team have diligently ploughed on.

 More recently, the output of the Motlanthe Commission has received short shrift from the government. If anything after the deployment of troops and use of live ammunition barely a month after the report, As a matter of fact, after condemning the use of live ammunition by the military and police, recent events in which at least 12 people were reportedly killed show that the government has simply ignored its recommendations. It will be very difficult for anyone to take future commissions seriously.

 Placing independent institutions under the Executive

 The Chapter 12 institutions in the Constitution are designed to be independent. They are particularly supposed to be independent from the Executive. Section 235 of the Constitution provides that they must be independent and should not be subject to the direction or control of anyone. They must exercise their functions without fear, favour or prejudice and should only be accountable to Parliament. It also provides that no person is allowed to interfere with the functioning of the independent commissions.

By virtue of section 256 of the Constitution, these provisions are also applicable to the Zacc. Yet for the past few years, that important commission has operated from the Office of the President, the head of the Executive. This makes a mockery of the independence of that important commission, which is supposed to be a check on the excesses of the executive. The Zacc has generally been weak and ineffective for many other reasons, but its placement under the highest office in the land has been a serious handicap. An anti-corruption agency must not only be independent, but it must be seen to be independent.

 Politicisation and militarisation of institutions

Finally, institutions are weakened through politicisation and in the last few decades, militarisation. This is normally through political appointments to boards of state institutions. New ministers have been known to fire existing boards and appoint their associates in their place. Senior military personnel are also retired into boards of state entities, ensuring a military footprint these institutions. 

Senior traditional leaders have openly declared their support for the ruling party.

All this is contrary to provisions of the constitution which specifically prohibit the politicisation of state institutions and their members. The provisions were deliberately designed to prevent the weakening of State institutions, which inevitably results from being tied to a political party and its interests. It is no surprising that Zimbabwe’s institutions have deteriorated over the years through deliberate politicisation where there is a conflation between the state and the party.

 Conclusion

The weakening of institutions has been a deliberate and carefully orchestrated strategy under the project of conflating the state and the ruling party. This BSR has given a summary of the ways by which state institutions have lost their lustre. It could be through deliberate capture or simply ignoring their existence or their output. The malaise runs deep into the entire system.

It is often thought that the departure of the political elite will solve Zimbabwe’s problems. In truth, it will only be the beginning. The task is enormous and requires a deep overhaul of the entire system. At the heart of any reforms that the country needs, is institutional rejuvenation. There has to be a deliberate and targeted effort at reforming state institutions, ensuring their independence and efficiency.

But beyond the structures, there is need to change the human factor. As we saw with the new Constitution, fundamental changes to the rule-book was only a quarter of the job. It needed a serious overhaul of the human factor. After former President Robert Mugabe, the system did not change. Many of the old hands remained in place. Mnangagwa retained senior figures of the old administration who were used to their old ways. It is not surprising that nothing has changed. If anything, they have become more emboldened and brazen in their posture and conduct.  

Alex Magaisa in a law lecturer at Kent University. This article first appeared on www.bigsr.co.uk 

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