Asleep at the Wheel
Zimbabwe’s Supreme Court had the opportunity to finally give the opposition a fighting chance. But it didn't.
Elections, everywhere, are frequently fraught with acrimony. When they do get messy, it may take either foreign involvement (as in Côte d'Ivoire in 2010) or, as often happens, courts roll up their sleeves (recently seen in Kenya, Uganda, and even the United States) to resolve them. While such involvement by courts has generally earned the judiciary broad recognition as a champion of democracy, this hasn't always been the case -- at least not in Africa.
Elections, everywhere, are frequently fraught with acrimony. When they do get messy, it may take either foreign involvement (as in Côte d’Ivoire in 2010) or, as often happens, courts roll up their sleeves (recently seen in Kenya, Uganda, and even the United States) to resolve them. While such involvement by courts has generally earned the judiciary broad recognition as a champion of democracy, this hasn’t always been the case — at least not in Africa.
Lately, many eminent African constitutional scholars have expressed profound skepticism and decried the polarizing and sometimes negative impact of judicial intervention in electoral disputes on the continent. Their point, it seems, is that by manipulating political forces, courts are increasingly becoming instrumental in thwarting the very democratic ethos they are supposed to protect. While this is not without some (perhaps questionable) exceptions, events in the lead up to Zimbabwe’s first general election in seven years, following both the adoption of a new constitution and the horrifying election-related violence of 2008, give fresh impetus for deeper reflections on such concerns.
Zimbabwe’s parliament was set to automatically dissolve on July 1, meaning that routine elections needed to be called. When exactly they should be held, however, remained a matter of great contention until Zimbabwe’s Supreme Court intervened. In a May 30 ruling characterized by some analysts as "crisis-provoking," and upheld on appeal on July 4, the Supreme Court ordered President Robert Mugabe to call general elections no later than July 31 this year. The majority opinion, despite dissent from some on the bench, reasoned that allowing the president to rule without a legislature amounted to "shredding the Constitution and inviting a state of lawlessness and disorder."
Critics however, find fault with this reasoning, saying that the old Constitution, which has certain provisions still in effect, only requires that elections be held within four months of Parliament’s dissolution — time that the opposition requested in order to prepare for the upcoming election. With no apparent legal need to hold "early" elections, the court order for elections to be held at the end of July only reinforced emerging cynicism regarding the democratizing impact of judicial involvement in electoral disputes.
The country may have, so far, had a successful constitutional reform process (based on the power-sharing agreement between the ruling party and opposition starting in 2008), but the political transition process itself remains highly charged. Tact and due diligence, especially as far as the planned elections are concerned, are critical; any error can result in total regression on progress made so far. Yet, it does not seem this is a goal — at least not for the Zimbabwe African National Union-Patriotic Front (ZANU-PF), the ruling government party that has made no secret of its support for the Court’s recent decisions despite concerns from regional bloc, the South African Development Community (SADC), and the opposition party Movement for Democratic Change (MDC) that Prime Minister Morgan Tsvangirai is the leader of.
Zimbabwe’s political system is not stable enough to undergo elections at this time. Reforms to de-politicize a highly partisan security apparatus traditionally allied to Mugabe’s ZANU-PF have been ignored. Recommendations to amend key media laws such as the Broadcasting Act, the Criminal Procedure Act, as well as the Access to Information and the Privacy Protection Act, which should ensure free and fair coverage of the elections by both the public and private media, as well as protect journalists, have been mostly disregarded.
Money is another issue. With the United Nations officially out of the picture, the only other funding option is the SADC. Mugabe’s increasingly confrontational tone towards the bloc appears to have undermined this as the country has now drawn on its own reserves to self-finance the elections; money it doesn’t really have. Given that the country’s economy remains very small and has recently lost three points on its GDP, Finance Minister, Tendai Biti of the MDC has described the situation as rape, and warned that it will put the country back economically as they have had to draw on resources which could have otherwise gone to more productive sectors.
Why would a court insist on ordering elections under such circumstances?
Mugabe and the ZANU-PF have welcomed the Constitutional Court’s refusal to extend the election date, and have indicated their resolve to abide by and implement it with an eagerness to comply with judicial decisions that is not normally a trademark of the regime.
Mugabe and ZANU-PF are being this compliant because they have the most to gain from the consequences of the court’s decision. The Mugabe camp’s motivations are elucidated when compared with the Egyptian parliamentary elections of November 2011. Similarly to Egypt’s conservative but better-organized Muslim Brotherhood (MB), Mugabe’s ZANU-PF prefer early elections; the MDC alternatively, like Egypt’s ill-organized secular parties, called for postponement to allow for key reforms and proper preparation.
Like the MB two years ago, the ZANU-PF, is widely seen as likely to ride the wave to victory in any election held sooner rather than later. Two credible surveys from 2012 — one by Afrobarometer, and the other, jointly conducted by Freedom House and Zimbabwe’s Mass Public Opinion Institute — have in fact predicted such a possibility. Legitimate factors — some of which have been attributed to growing corruption within the MDC, and what some perceive to be Tsvangirai’s poor handling of the power-sharing government with Mugabe — do account for this. Another possible cause for the MDC’s dwindling fortunes is Prime Minister Tsvangirai’s colorful liaisons with women, which the ZANU-PF has made sure to point out during campaigning.
Yet, one cannot also discount the impact of the intimidating campaign of terror being perpetrated by ZANU-PF militants on voters, who remain terrified by the prospects of another round of election-related violence. The same applies to Mugabe’s deliberate refusal to implement the constitutionally mandated reforms which many agree are critical for guaranteeing a legitimate and peaceful election.
Considering these broader concerns, and the Court’s apparent reluctance to engage them, it is hard not to question whether forcing these elections now is anything but a recipe for disaster — especially if any of the parties reject the outcome of the polls.
Without being an advocate of reactionary courts nor bed fellows with unadventurous judges, it is important to emphasize one common expectation of courts in a democratic polity: When judges are faced with a high-stakes query (like elections) in which strict interpretations of what is legal might not only yield unjust results but also provoke social tensions or conflict, they must find the just and appropriate balance between law and context. It is clear that the Supreme Court’s judicial intervention is advocating measures that aren’t appropriate for promoting governance and democracy in Zimbabwe.
One thing emerging from both the court’s rulings which must not be glossed over is the deep political antagonism that continues to define the relationship between Zimbabwe’s main parties, despite six years of coalition rule and the unified euphoria of the March constitutional referendum. Virulent and scathing attacks against Tsvangirai and the MDC from ZANU-PF ministers following the first ruling, as well as assaults by the Mugabe-controlled security forces on MDC partisans are indicative of bigger battles ahead in the event of another disputed vote.
Could we, as some are predicting, be looking at a possible replay of the past six years? Should that become imminent, will this Court despite failing to inspire confidence so far — be able to resist the politics, and stand by the purpose, values, and vision of the new constitutional order? What happens in Wednesday’s elections and in the days and weeks following it will be decisive, not the least because it will provide the single most important test for all the key actors of this political process.
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