adminSharon Hofisi Legal Letters
Democracy is loosely interpreted as a people-oriented concept simply because of the demos or people aspect in it. Frequently we hear that Abraham Lincoln coined the popular statement that describes democracy as a government of the people, by the people for the people.
We are also introduced to the etymology of democracy which has been given a Greek touch as has been the case with several words in modern day political usage.
What enabled the Greeks to greatly influence democratic structures the world over? Discerning politics I suppose. Well, we know at one point Alexander the Greek subdued the world. The Greek influence to democracy is similar to the Roman influence to international law or Napoleonic influence to the codification of the law.
Beyond the Greek etymology or Lincoln’s description of democracy, a full statement of democratic forms is never found in one country. You will obviously find Ataturk democracy in Turkey (owing to the great influence of their ruler); Fortress democracy in Israel (owing to the political relationship between Israel and Palestine); Parliamentary democracy in the United Kingdom (simply because Parliament is supreme); constitutional democracy in Zimbabwe (we have a constitutional clause in this regard and also consider constitutional supremacy as a founding value of democracy) and so forth.
The etymology of democracy is gradually spoken everywhere. Here I deal with various forms of democracy one may find in Zimbabwe. What is topical during the President Mnangagwa-led dispensation is progressive democracy. Our dictionary of democracy is growing. Democratisation is not instant, but democratic tenets are non-negotiable. We hear of electoral reforms; consolidating democratic gains; dialoguing between parties, “no reform no elections” and so forth. All in the name of progressive democracy!
The way in which a Constitution is written is no different from a mosaic of which the pieces are not yet joined together. The various pieces are joined together in relation to how they affect a particular society. So it is with our various forms of democracy.
The most common piece in our Constitution is constitutional supremacy by which we derive our constitutional democracy. It is the type of democracy of the written mosaic which places emphasis on a constitution, especially a written one.
Laws, customs, practices and conducts must use the Constitution as the ultimate measure.
Zimbabwe has followed constitutional democracy since independence. The Lancaster House Constitution had a section that underscored the supremacy of the Constitution, and by parity of reasoning, it entrenched constitutional democracy.
With constitutional democracy, a State, its institutions and agencies have no luxury to have relations with citizens save that which is based on the supreme law. The rule of law becomes one of the key pillars in this link and is anchored in the need to grant remedies to citizens in the event of constitutional breaches, especially those involving the Bill of Rights. The best remedy for breach is specific performance and we have seen various right holders approaching our superior courts to enforce their political rights, marriage rights, rights to privacy and so forth.
Constitutional remedies include removal of a public figure from office; remedial action from the public protector and so on. We have witnessed some events in this regard. At the end of the day, our definition of constitutional democracy is and must be founded on the rule of law (which is simply the set of rules, including those found in the mother law or the constitution). Rule of law includes the respect for laws in our ordinary statutes, common law, and judge-made law.
In this election year, a person who doesn’t want to vote might argue that there is no right to vote under the common law.
He or she is allowed to bolster that argument by saying that the common law is something that does not move and is not found in a Constitution. But it is also one’s right to argue that common law is stored somewhere. I shall discover it. What is this so-called common law?
A simple reading of Section 176 of the Constitution shows that the common law is not a fixed body of laws. Judges of the superior courts have been given power under constitutional democracy to develop this law.
Because common law is not explained in a constitution, one can argue that its rules explain a form of democracy that is not founded on the constitution. Why? A constitution is nothing, but a set of ordinary laws which are given a supremacy or extraordinary status. But a counterargument would be given in the following manner: By allowing judges to develop the common law, we also believe that the Constitution can be a vehicle for developing certain non-constitutional rules such as the common law.
The atmosphere of democracy can take us to international pressures or measures such as punitive sanctions or laws such as zidera or conditions of re-engagement such as progressive democracy as shown at the beginning of this article. As a nation, diverse and united in our diversity, we realise that the book of democracy is a school book with its parts carefully considered (by us or others) and meant to benchmark interstate political, social and economic relations.
Progressive democracy is doubtlessly not instant democracy. Zimbabweans must carefully engage and build their confidence on several non-negotiable tenets of democracy, chief among them being good governance. We know good governance is a tenet of constitutional democracy that is listed among the founding values and principles in our constitution.
There are several principles attached to good governance: some involving human rights others involving practices such as devolution of government. One must read the essential features of the Constitution such as the preamble; national objectives; the Bill of Rights; and constitutional provisions on public administration (Chapter 9) and devolution (Chapter 14) to get a detailed analysis of the values of good governance.
We can also argue that good governance can be determined using multiparty democracy which we also consider to be an important principle of good governance in our Constitution. But one person can say only two parties, zanu-pf and mdc-t, keep the other at its feet. Another can say dominance in terms of numbers doesn’t count, what counts is dominance in terms of position in government or control of government administration. This will take us to Orwellian democracy.
Those who read George Orwell’s Animal Farm know fully well that although all animals are equal, some animals are more equal than others. Periodically, revolutions are quelled or mooted. Occasionally a President in Zimbabwe enjoys some privileges or immunities.
So it is with diplomats and consular figures. Further, this President is a beneficiary of direct democracy in Zimbabwe because we directly elect the President in terms of the Constitution. The same holds for the direct appointment of the Vice Presidents in the future in terms of the Sixth Schedule.
Sometimes we feel it is better to follow indirect or representative democracy when we appoint legislators and councillors during periodic elections. We believe our MPs spend some time with us in their constituencies. We shun them when we do not hear much about constituency talk or constituency development.
In all this, before we condemn a law, conduct, practice or custom as undemocratic or unconstitutional and so forth, we strive to understand the various forms of democracy that our polity subscribes to. A bit of history is needed here. During the liberation struggle, people would talk about democratic centralism or consensus based decision-making process which was facilitated by a top-bottom or bottom-top process.
Democratic centralism rested on the three pillars of: discussion of all issues by all the concerned parties until a general consensus was reached; respect for a decision to be taken by central organs of the party; and criticism and self-criticism of the leaders by the members and the masses, and among the leaders themselves (Mazarire 2011).
Readers of military history do understand how democratic centralism created some complex relationships between the Dare reChimurenga and the ZANLA High Command. Later there were some problems in implementing this form of democracy when in 1972 the Joint Military Command was formed between ZANLA and ZIPRA and later in 1975 when the Zimbabwe People’s Army (ZIPA) was formed. I won’t go into detail in this regard.
Suffice to mention that the spirit of that time, Mwenje No.2, which was ZANU’s second strategy after Ndabaningi Sithole’s 1964 ‘clarion call to war’, demanded that the party should guide the gun. Democratic centralism allowed ZANU to embark on such moves such as the Crocodile Gang, Emmerson Mnangagwa’s sabotage of the Fort Victoria railway and the Sinoia Battle concept.
We can also take our argument to the world. We hear there are functional or failed democracies; mature or immature democracies; and so forth. Using our worldviews, we don’t loathe those who defend liberal democracy or those who strongly critique it using illiberal democracy in Western Europe. You can hear someone attacking democracy as a Western concept that ignores influences of the Global South.
In the end, democracy becomes a way of life for a given polity. The choice is with the polity to consolidate the gains of democracy.
Sharon Hofisi is a lecturer of Law and Public Administration. Feedback: [email protected]
Online Reporter