Guest Column: Alex T Magaisa
I HAVE been reading How Democracies Die, a fascinating book by political scientists, Steven Levitsky and Daniel Ziblatt. While the book primarily examines the challenges facing American democracy in the wake of the unusual Trump presidency, it nevertheless raises important issues that are relevant to other countries, including those struggling with the basics of democracy.
One issue that I wish to examine within our political context in Zimbabwe is polarisation and its impact on our efforts to establish a democracy. Zimbabwe would not, at present, qualify as a democracy in most political scientists’ calculations. It may fall into the category that political scientists have described as “semi-authoritarian” or “competitive authoritarian” regimes — where regular elections are held religiously, but without the essential elements of being free, fair and credible. Nevertheless, there is a strong clamour for democracy, and we hope it will be possible to achieve full democracy in the near future.
However, one of the great impediments on the route to democratisation is the challenge of polarisation. It is widely acknowledged by most serious observers of the Zimbabwean political scene that the nation is deeply polarised. People are invariably lumped into one or the other of two principal political camps — Zanu PF, the ruling party or MDC, the main opposition. In this deeply polarised environment, the ruling party’s obsession is to keep the opposition out of power, while the opposition, feeling cheated at elections, gains satisfaction from Zanu PF’s failure. This may be described as “zero-sum game” politics: One’s win means another’s loss; one’s advantage is another’s disadvantage. There is virtually no middle ground.
This “zero-sum game” is evident in our electoral system. The stakes are so high that the difference between victory and defeat is literally a matter of life and death. It is not surprising that the ruling party tends to resort to political skulduggery in order to prevail, while the opposition always rejects the outcome and refuses to concede, thereby undermining the resulting government’s legitimacy. Feeling slighted by the opposition’s stance, the ruling party uses institutional powers derived from controlling the State to punish the opposition. The opposition in turn retaliates in order to spite the ruling party. It’s a vicious cycle in which the biggest victim is the ordinary citizen, caught between the two political behemoths.
If Zimbabwe is to achieve progress, it must overcome this big challenge of polarisation. This BSR examines one way to do so, through an analysis of unwritten rules, without which democracies would be very hard to sustain. While we often look to constitutional rules and legislation, I draw from Levitsky and Ziblatt’s brilliant work, to argue that we must pay closer attention to norms or unwritten rules that have shaped and sustained older democracies for decades (although admittedly, they too are under severe strain in these older democracies). I’m persuaded by their analysis that in addition to written rules, these older democracies have been resilient due to norms or unwritten rules developed and nurtured over the course of time. Our fledgling democracies could draw lessons from their histories.
What is polarisation?
Polarisation refers to a division into two diametrically opposing positions in relation to a specific subject. These could be sharply contrasting groups, beliefs, views or opinions vis-à-vis a particular subject. In politics, groups may be polarised in terms of ideology, for example between capitalists who believe in individualism and the free-market and communists who believe in communalism and the omnipresence of the State.
It’s not that all polarisation is bad. As Levitsky and Ziblatt point out, some of it may be “healthy — even necessary — for democracy”. That ideological friction can help shape society, allowing the contestation of ideas and policies which promote economic growth while supporting equality. Indeed, they might even borrow ideas from the other end, incorporating them into their policies to ensure stable and equitable growth. Britain, a capitalist nation, has a vast publicly funded health-care system. China, which is a communist State, has incorporated some market ideas into its economic programmes.
However, when polarisation becomes deeply entrenched to the point that it leads to segregation between groups in society, it can prove fatal to the idea of democracy. In such a scenario, what would ordinarily be partisan groups with different views become a danger to each other. “As Levitsky and Ziblatt argue, “… when societies grow so deeply divided that parties become wedded to incompatible worldviews, and especially when their members are socially segregated that they rarely interact, stable partisan rivalries give way to perceptions of mutual threat”.
In such a scenario, politics becomes a zero-sum game where winning or losing is truly a matter of life and death. Such a situation, in which one polarised group seeks to exterminate the other, is unhealthy for democracy. It is unhealthy because it encourages parties to drop the rules of civility and to seek power by any and all means necessary. The use of underhand tactics and skulduggery becomes normalised.
The party that has control of State machinery will abuse power in order to retain control. It will seek to completely shut out the other party. On the other hand, the party that is not in power may be tempted to use extra-legal measures, including uprisings, in order to win State power. When rules are broken, it becomes chaotic and democracy suffers. This, as we have already seen, is a major problem in Zimbabwe, where polarisation between Zanu PF and the MDC is deeply entrenched.
What then must be done in order to minimise polarisation and create an environment that is conducive for democracy?
Constitution is not enough
The usual starting point for most is the Constitution — which is the supreme law of the nation. There are some great constitutions which have endured the test of time, such as the US Constitution. Some are younger, but have been equally hailed for promoting democracy, such as the Constitution of South Africa.
However, while constitutions are important documents, they are not, by themselves, enough to promote or even save democracy.
Constitutions are incomplete
As Levitsky and Ziblatt argue, there are a number reasons why even the best-designed constitutions fail to save democracy. The first is that no matter how elaborately-worded they are, constitutions are always incomplete. They rarely cover all eventualities. There is always a loophole somewhere, which an authoritarian ruler can exploit.
When we were deliberating on the current Constitution of Zimbabwe, we drew lessons from past abuses and tried to provide adequate cover, which partly explains why it’s such a thick document.
But even then, if you go through it with a toothcomb, you will still find gaps that can easily be exploited by an authoritarian leader.
Some people say the Constitution still leaves too much power in the hands of the President. But if they did a comparative assessment with Constitutions that are regarded as the best and most enduring, such as the US Constitution, they might be surprised that they actually confer even more powers on the President.
The difference is not in the powers that are conferred by Constitutions, but in how they are used or not used. What determines whether or not powers are actually used are the unwritten rules/norms, which form the subject of this BSR.
The second reason is that no matter how well-written it is, the words of a Constitution are ultimately subject to interpretation. As with all legal documents, interpreting a Constitution is not an exact science. There is often more than one interpretation. These multiple and competing interpretations are ultimately decided by judges, in the event of a dispute. The judges may end up choosing an interpretation that is different from what the framers of the Constitution intended.
For that reason, an authoritarian ruler who wants to achieve an undemocratic objective can actually do so relying on the same Constitution that is used and encouraged by democrats. If the matter goes to court, a pro-regime judiciary will rule in favour of the authoritarian ruler, thereby giving legal legitimacy to his decision.
Third, even when followed to the letter, a Constitution can produce results that undermine its spirit. Such pedantry is much-favoured by authoritarian rulers and like-minded institutions. Accused of being unfair, they can simply argue back by saying they are following the letter of the law. One body that has perfected this art of legal pedantry is the Zimbabwe Electoral Commission (Zec). Even where flexibility would have helped, Zec stuck to the letter of the law in situations that produced absurd outcomes. In some cases it was wrong, but in others it was technically right. But it could have handled the matters with greater flexibility. There was something lacking, again the subject of this BSR. Likewise, a President can pack the judiciary with loyalists by using perfectly legal processes as mandated by the Constitution. If accused of packing the court, he can simply argue that appointments are in terms of the letter of the law.
Finally, constitutions can simply be bad in that they specifically confer authoritarian powers. The ruler acting upon its terms will be well with his legal rights to do so. His conduct will be technically legal. Many dictators in Africa and Latin America in the 1970s and 80s accumulated their power through amending Constitutions. In Zimbabwe, former leader Robert Mugabe abandoned the parliamentary system of government established at independence and adopted Presidentialism with an amendment to the Constitution in 1987.
In recent years, there has been a trend of African leaders extending their stay in office by simply amending the Constitution. As Levitsky and Ziblatt remind us, for all its virtues and successes in over 200 years of its existence, the US Constitution actually confers a huge amount of executive power to the President. What is remarkable is that successive Presidents have not made excessive use of these wide powers – which prompts the question why and this too is the subject of this BSR.
So while it is an important document, on its own, the Constitution is insufficient as a device for establishing, growing or protecting democracy. In fact, used without caution, even the most well-written Constitution can imperil democracy.
This argument presented by Levitsky and Ziblatt is, of course, not new i Constitutional scholarship. Readers of the BSR may be familiar with the famous words of an American jurist which I have quoted more than once over the years. In a landmark speech delivered in 1944, the jurist, Justice Learned Hand said,
“I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it; no Constitution, no law, no court can even do much to help it.”
While the judge was addressing the issue of liberty, his words apply with equal force to the idea of democracy. It cannot be saved by the Constitution alone.
In the past, I have expressed the issue in terms of the “Human Factor”, arguing that it does not matter how well-designed a Constitution may be, unless the people who are charged with its implementation have the wisdom and inclination to fulfil its objects. While many people are quick to blame the Constitution, they overlook the influence of the human factor, just as they blame machinery for accidents when the real cause is the people operating the machine.
Likewise, as great as it is, the much-acclaimed Constitution of South Africa can easily yield less progressive results under a different leadership and judiciary. And for all its weaknesses, the old Constitution of Zimbabwe was, for the most part, interpreted in very progressive ways by a judiciary that was generally pro-human rights. When most judges where pushed out from 2001 and new judges were introduced, the human factor changed and with it, the approach towards human rights and freedoms. Mugabe wanted a judiciary that would legitimise his radical land reform programme.
What Mugabe did to the Supreme Court in 2001 was not different from what a previous American leader had tried in 1937. Franklin D Roosevelt was frustrated with a conservative Supreme Court which was blocking legislation to implement his New Deal economic programme. His proposal was to change the size of the US Supreme Court, which would have given him an opportunity to pack the judiciary. This proposal was heavily resisted, even within his own party which controlled Congress.
The object for both leaders was to pack the Supreme Court in order to ensure smooth passage of a policy programme which was facing judicial resistance. The difference is that Mugabe succeeded, while Roosevelt failed. But just why one failed while the other succeeded requires some examination. It can’t simply be explained by the “human factor”.
The problem with the “Human Factor” analysis therefore is that it relies on the character of individuals. It depends upon the goodness or otherwise of individuals who have power under the Constitution. There is no external stimuli except the quality of their own moral fibre. A good person will produce a positive human factor while a bad person will cause a negative human factor. But it is not helpful to rely solely on the human factor particularly when it comes to the exercise of power. It’s not the human factor that explains why Mugabe succeeded to pack the Supreme Court in Zimbabwe in 2001 while Roosevelt failed to do the same in the US back in 1937.
Norms or unwritten rules of politics
It is here that the analysis by Levitsky and Ziblatt is helpful. The scholars highlight the significance of norms or unwritten rules in society. They are not a substitute for but play a complementary role to written Constitutions. “All successful democracies rely on informal rules that, though not found in the Constitution or any laws, are widely known and respected,” say Levitsky and Ziblatt. They refer to these norms as the “soft guardrails of democracy”. They work as a compelling moral compass for those in positions of authority. The chances of democracy are better in societies that have developed a robust set of norms than in societies that have weak or no norms at all and rely solely upon written rules.
Levitsky and Ziblatt define norms as “more than personal dispositions” which rely on the “good character” of political leaders. Instead, they are “shared codes of conduct that become common knowledge within a particular community or society – accepted, respected, and enforced by its members”. Their uncodified nature means they are not easy to see and they might even appear unnecessary. But, the scholars argue, “like oxygen or clean water, a norm’s importance is quickly revealed by its absence”.
The two norms they identify as fundamental to a functioning democracy are “mutual toleration” and “institutional forbearance”. It is these norms that are also relevant to the issue of polarisation and how it can be overcome. It is important therefore, to understand how the scholars define these two norms and how they have worked over the course of American history. Could they be relevant to our situation? I believe an understanding of these norms could be useful.
The norm of mutual toleration
By mutual toleration, Levitsky and Ziblatt mean the idea that political parties accept each other’s “right to exist, compete for power and govern”. In brief, political parties tolerate each other, their vast differences notwithstanding. They accept the legitimacy of the other party as a political contestant. They acknowledge each other as political opponents, not as enemies.
The parties accept that as long as they play according to the rules of the game, one of them will win and they will have the legitimate right to govern. The winner, in turn, acknowledges that the loser has the right to exist as the official opposition and they interact in the spirit of mutual respect. They do not treat the opposition as treasonous or subversive elements. Levitsky and Ziblatt call this “politicians’ collective willingness to agree to disagree”. The outcome of an election is not a matter of life and death, as the loser knows they will have a chance in future, if the winner falters.
The scholars provide a cogent historical summary which demonstrates that this norm of mutual toleration was not always there in American politics and as contemporary events show under the Trump presidency, there is no guarantee that it will always be there. They show how the feud between the Republican and the Federalist parties in the early years was bitter and acrimonious with each party accusing the other of being traitors. Even legislation, such as the Sedition Act was passed in 1798, which effectively banned criticism of the government. This was party-targeted legislation. “It was only gradually, over the course of decades, that America’s opposing parties came to the hard-fought recognition that they could be rivals rather than enemies, circulating power rather than destroying each other,” say Levitsky and Ziblatt.
Political parties that have mutual toleration treat each other with respect and do not see the other as an existential threat. The problem is that authoritarian rulers often start consolidating power by labelling the opposition as enemies of the state. They describe them as “an existential threat” and use this in order to create the architecture of repression. “If we view our rivals as a dangerous threat, we have much to fear if they are elected. We may decide to employ any means necessary to defeat them …” argue Levitsky and Ziblatt.
Applying this to Zimbabwean politics, it is easy to see that there is no mutual toleration between the main parties, itself both evidence and a driver of polarisation. For Mugabe, Nkomo’s Zapu was an existential threat and it was described as dangerous. Unsurprisingly, he responded to the sporadic threat of dissident activity by renegades with excessive force led by the Fifth Brigade.
When the MDC came on the scene in 1999, it was similarly described as an existential threat. It was a “Western-sponsored” party of “sell-outs” whose sole purpose was to “reverse the gains of the revolution”. In Mugabe’s book, the MDC had no right to exist. The election was a life and death affair, and hundreds were killed in order to retain power. It was this lack of mutual toleration that led senior military figures to wade into politics against the MDC declaring in effect that they would not support a Tsvangirai-led government.
Tsvangirai and other opposition leaders were beaten up, jailed and tried for treason. Many opposition leaders and activists have been charged with the offence of subverting a constitutionally elected government. Much of the ruling party’s conduct and its treatment of the opposition shows a lack of toleration. On the other hand, the opposition also views Zanu PF as the enemy. In the past, some opposition figures have threatened retribution against Zanu PF politicians. Even mere threats that they will be tried or sent to The Hague have been enough to scare senior ruling party officials. This has meant that for Zanu PF leaders, losing power is indeed an existential threat at a personal level – not only would they lose their wealth and status, but they would also lose their liberty.
The result is that an election in Zimbabwe is indeed a matter of life and death. Losing is apocalyptic. There is no mutual toleration. This is not helped by an electoral system which means the winner takes all and the loser ends up with nothing. This fight to the death means parties, especially the ruling party, uses its incumbency to ensure it never loses power. With cheating, the democratic process is compromised and the vicious cycle goes on. The declared loser refuses to accept the results, refusing to tolerate the winner and the winner in turn retaliates with arrogance, gloating and vindictiveness. Such a scenario is unhealthy for democracy.
The norm of institutional forbearance
The second norm that Levitsky and Ziblatt discuss is institutional forbearance. This refers essentially to the act of restraining oneself from exercising a legal right of function. To give a simple example, a person to whom money is owed may exercise forbearance by not making a demand from the debtor as soon as the debtor defaults. Indeed, where a demand is made, the debtor may write back asking for the lender’s forbearance. Institutional forbearance works in similar ways: a public officer may exercise forbearance even when he or she has the right to use their Constitutionally given power.
Levitsky and Ziblatt describe it as “avoiding actions that, while respecting the letter of the law, obviously violate its spirit”. This means where the norm of institutional forbearance is strong, political actors will refrain from exercising their institutional powers to the letter even though they might be technically right. They take that approach because it is better and more sensible to do so in the circumstances.
The scholars demonstrate that the idea of institutional forbearance dates back to the age of monarchical rule, where Kings and Queens claimed title by divine right (from God). Even though they could do anything because they were above the law, they nevertheless exercised restraint in the exercise of those powers. Of course, many went overboard, which prompted revolts which eventually toppled them or reduced their powers significantly.
Why does institutional forbearance matter in a democracy?
It means political actors refrain from being pedantic in the application of the law and their institutional powers. It means even though a leader has wide executive powers, he or she does not always use them to the letter, especially to punish opponents. In the words of Levitsky and Ziblatt, in means “although individuals play to win, they must do so with a degree of restraint … this often means eschewing dirty tricks or hardball tactics in the name of civility and fair play”.
It also means not exercising a right that one has in the interests of establishing and protecting a culture of good governance. In the US, the norm of a two-term presidency was set by the first leader George Washington and followed by others that came after him. In fact, it was not until the re-election of Franklin D. Roosevelt in 1940 for a third term that the norm was broken. The response was the Twenty-second amendment, which gave legal basis to the norm. But there was no law which prevented Roosevelt’s predecessors from going for a third term. What stopped them was respect for the norm of forbearance.
The norm of forbearance also means even where Presidents have the right to rule by decree, thereby circumventing the legislature, they will often refrain from doing so in order to preserve the balance between the executive and the legislature. This is why the President is usually criticised when he resorts to the Presidential Powers (Temporary Measures) Act, which essentially permits him to rule by decree. It also means even where the President can pack the judiciary, he or she might avoid this path out of respect for the independence of the courts.
A good example of institutional forbearance relates to the military. The military is the probably the most powerful sector within a state. Granted, there are laws which demarcate the role of the military and prescribe that it is subject to civilian command. But it is the unwritten rules which probably have a grater restraining role upon generals. Norms have been in place since time immemorial, even under monarchical rule, that the military does not interfere in civilian politics and that in turn the civilian rulers do not interfere in operational command of the military. What holds them back the most are the norms that soldiers must stay in the barracks.
However, once this norm is broken, it becomes very difficult, if not impossible for the military to exercise self-restraint. Military coups represent a break with these norms that govern civilian/military relations. This is why the November 2017 represents a dangerous precedent. It broke a long-standing norm and made normal for the military to intervene. It is not surprising that the military has been deployed twice within six months – breaking a norm whereby the military were generally not deployed to deal with protests. President Mnangagwa and his supporters might argue that deploying the military is perfectly legal under the Constitution. They would be technically correct. But they would ignoring the norm of institutional forbearance, which even Mugabe observed. The routine deployment of the military is a norm-breaking exercise which also exacerbates intolerance and therefore, polarisation.
Norms are complementary
As Levitsky and Ziblatt point out, the two norms – mutual toleration and institutional forbearance – are intertwined and interdependent. Where there is mutual toleration, it is more likely that there will be institutional forbearance. Conversely, where there is institutional forbearance, it is likely that there will be mutual toleration. However, where one is broken, the other is also likely to be broken. If there is no mutual toleration, it will be hard to have institutional forbearance and where there is no institutional forbearance, chances of mutual toleration will be very limited.
If parties accept each other as legitimate rivals and not as subversive enemies, they are more likely to treat each other with respect and exercise forbearance. They will not resort to dirty tricks in order to eliminate each other. An election does not become a zero-sum game; an all out war to obliterate the opponent. They are also likely to play fair; playing by the rules thereby avoiding cause for rejection of election results by declared losers. Even though they might be unhappy in defeat, they would bite their teeth, accept loss and live to fight another day. Likewise, the winners would exercise forbearance – treating the defeated with respect and avoiding the temptation to use institutional prerogatives against them, even though they might be right in a technical sense.
In Zimbabwe, the norms of mutual toleration and institutional forbearance are broken. The cost of losing an election is seen as too high, a complete disaster, which reduces toleration and forbearance. The ruling party fears the consequences of defeat while the opposition is petrified of remaining perpetually in opposition.
The absence of these norms of mutual toleration and forbearance means the ruling party plays Constitutional hard-ball – using institutional powers against the opposition while on the other hand, the opposition refuses to give loser’s consent, which the ruling party needs for legitimacy. If the refusal by the opposition to acknowledge the legitimacy of the regime is a breach of the norm of mutual toleration, the arrest and prosecution of opposition politicians like Tendai Biti, Morgen Komichi, Joanna Mamombe, Amos Chibaya and Charlton Hwende among others, is a breach of the norm of institutional forbearance by the ruling party.
Although these norms are broken, they are not unsalvageable. In my opinion, Zimbabwe has much to learn from older democracies. A study of their long histories shows that they have gone through bad times too but in these processes, they have developed important unwritten rules which work probably better and more effectively than the written rules.
At the moment, we have a serious problem of political polarisation. On the one hand this means Zanu PF wants to keep the MDC out of power at all costs. On the other hand, the MDC wants Zanu PF to fail at all costs. For Zanu PF, success would mean the irrelevance of the MDC. For the MDC, Zanu PF’s failure would be a reaffirmation of its existence. This is a damaging a tug of war without middle ground.
But this scenario is not unique within the spectrum of history. While the major parties in older democracies like America and Britain might have reached mutual toleration, they did not always start like that and it’s not guaranteed that it will always be like that. Brexit and the 2016 presidential election opened new frontiers. What is certain is that at some point, they were where we are right now, but they learnt to tolerate each other and to exercise institutional forbearance. These norms have sustained their democracies for a lengthy period of time.
If Zimbabwe is to overcome the present challenges, we must first surmount the hurdle of polarisation. To do that, there is need for political parties to embrace and apply the norms of mutual toleration and institutional forbearance. These issues are, to my mind, fertile subjects of dialogue between the two most important political actors in the country. There is no need to shut out the MDC from government, but equally there is no need to wish for Zanu PF’s total failure. Those who wish to help Zimbabwe might find that they are useful starting points.
Alex Magaisa is a law lecturer at Kent University. He writes in his personal capacity.