adminSharon Hofisi Legal Letters
Undoubtedly, what emerges beyond dispute is that Zimbabwe’s new dispensation has several ‘new beginnings’ in many fronts. The changing political landscape can only be realistically analysed in terms of constitutionalism at party and national level. Politically, those who want to be elected may adopt Machiavellian, Hobbesian or Alexandrian approaches. Some would even believe in catchy statements such as “there is order in disorder” which simply point to chaos theory. Essentially, candidates struggle to adhere to “ideals”, “morals of politics”, and so forth.
That is real politics for those who believe in the ubiquity of politics. The increasing constitutional need in the administration of political parties such as zanu-pf and MDC has been seen in the primary elections debates and candidate selection struggles. Transparency, accountability, and justice must be the key pillars at party and national level.
Added to this are various issues that serve as a call to action for political parties and institutions such as the Zimbabwe Electoral Commission (ZEC): personal features of candidates on the ballot box, names of political parties, availability of impartial polling officers or return officers, and so forth.
The changing structure of political power in the era of “new beginnings” has brought no significant changes in the approach used by citizens’ need to demand commitment to good governance. All enfranchised citizens, whether in zanu-pf, MDC, or at national level, have shown their need to decide carefully the priorities they want for themselves in the coming elections.
I focus on one important issue in this think piece: how the pre-electoral period reflects on Zimbabwe’s preparedness to hold regular, free, fair, and credible elections this year. Everyone struggles for trust.
The language brought by the new dispensation is bracketed with “captured minds”, “captured institutions”, “captured electorate” “captured institutions” and so forth.
ZEC, an independent institution, has done the noble thing by admitting and clarifying why it employs some people from the military. The move is essentially pitched in a manner which refutes the thinking that ZEC has been captured by the military.
From a stakeholder perspective, it helps explain why ZEC has been working with other bodies outside power structures such as political parties and civil society.
ZEC’s engagement with partners must simply deal with the major challenge in this pre-electoral period — trust. The pre-electoral environment is very important in determining how political parties are continuously exploiting the multi-party democracy to take steps towards asserting their political power in Zimbabwe. Each party must demonstrate its commitment to solving governance ills such as corruption, civil service concerns, and various mistakes of the past.
The current electoral cycle has produced more than 128 political parties. But the concern is not about numbers of political parties. It is about sign-posting the real gains of entrenching political rights in our Constitution.
We can only celebrate tangible gains of political pluralism if the significant players commit to good governance in protecting candidates from victimisation, unfair disqualification, and enabling them to access effective remedies when their rights are violated.
Demonstrably, in the course of this analysis, we have various challenges: economic drawbacks, laws still to be aligned with the Constitution, internal party struggles, delays in proclaiming the election dates, need for transparency in the structural and functional operations of ZEC; registration of voters; procurement of voting material and so forth.
The possibility of improving our efforts towards democratisation and a genuine election abounds: political parties were involved in the procurement of biometric voter registration kits, and ZEC has been engaging partners. The use of de-duplication machines seems cast in stone. Local, regional and international observers seem to have confidence in our pre-electoral process.
Major political parties are taking real steps towards participating in the elections. This is important for progressive democracy.
While the Movement for Democratic Change led by Chamisa has postponed its primary elections, zanu-pf has already conducted its primary elections, albeit in muddled style in areas such as provision of ballot material, availability of names of candidates, use of police officers as returning officers and so forth.
If it is asked what the party developments mean for the national elections, the best answer is this: more and more democracy within political parties. Where does this lead us to? It seems to me that the major political parties have largely shown commitment to respecting the voice of the people. The politics of imposing candidates seems to be losing its grip if the zanu-pf results are anything to go by.
In a way, the internal democracy, never mind how it is defined, scores highly for our constitutional democracy, simplified in terms of the will of the people to make free choices on who should govern them.
For instance, in pointing out the positives from the zanu-pf primaries, we also clearly see that a cleave model is needed in analysing the relationship between constitutional law and politics.
Most candidates who were connected to their communities won the primaries. Some incumbent candidates lost perhaps because they had divorced themselves from their communities. This trend may be repeated for those candidates who merely celebrate their confirmations as candidates, but do nothing between now and the actual election.
Further, there were other positives such as the use of secret ballot and commitment to the principles of fairness when re-runs were ordered in some constituencies. The party leadership was prepared to accept the electoral grievances and it is hoped that electoral disputes during the national elections will be resolved expeditiously.
We laud ZEC for allowing some voters to be assisted by their own relatives in the national elections. We saw how of late police officers were allegedly used to assist voters. This created an impression that the elections were rigged or voters were intimidated to vote against candidates of their choice.
We also believe that disputants will have an opportunity to have their electoral challenges heard before the eventual announcement of the winners in their constituencies. This is an important to-do list for the Government as the primary duty bearer in upholding political rights.
During the 2013 general elections, several electoral cases were not resolved expeditiously and in a manner which promoted constitutionalism and effective access to justice. The Supreme Court and Constitutional Court only issued orders at the conclusion of arguments.
Petitioners were not favoured with the reasons for the judgments. This reflected badly on how our superior courts are committed to protecting entrenched and justiciable rights.
In one of the decided cases, a registered voter in Harare but living in South Africa, made an application to the Constitutional Court seeking, firstly, an order to allow him to vote in the diaspora and, to be granted the postal vote that diplomats and Government officials based in foreign countries enjoy. Zimbabwe is currently wooing the confidence of diaspora.
It needs remittances and the commitment to protecting the diaspora vote is important in the economic drive to increase foreign direct investment and general confidence in our democratisation efforts.
In recent days, we saw some candidates of small parties who were interviewed on the national broadcaster, Zimbabwe Broadcasting Corporation, registering their displeasure on the lack of funding for smaller parties. Their concerns ought to be taken seriously during this preparatory period. Their grievance is not new. Two small political parties challenged the constitutionality of the Political Parties (Finance) Act, arguing that small parties not party to the GPA did not have access to funding from foreign sources or the treasury. Unfortunately, the case was dismissed in 2013 and reasons were not quickly given.
In concluding this article, I cannot help but quote Lenin’s wise remarks that we must not conceal the evil of bureaucracy; that we speak about it openly so as to make it easier to uproot it. We need to build trust in the electorate so that our elections will be considered free, fair and credible.
Sharon Hofisi is a lecturer in constitutional law and politics. [email protected]
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