THE PRIMACY OF POWER AND LIMITED VISION WITHIN CONTEMPORARY AFRICAN CONSTITUTIONALISM[1]

In the last blog, I made the claim that the rise in juristocracy was at the expense of the more representative arms of the State and thus inimical to representative democracy. In this instalment, I make the claim that the masses have been complicit in and actively sanctioned the amassing and sustenance of imperial powers by the executive branch.


Professor H.Kwasi Prempeh

 According to renowned author and academic Kwasi Prempeh, the huge burden placed on the judiciary to promote and sustain constitutionalism is demonstrative of the failure to build credible checks and balances into the “political half of the state.”[2]In other words, excess power within the executive leaves people with no option but to approach the courts to level the playing field. In fact, African leaders’ preference for an authoritarian State model has its roots in the colonial state and its indelible features of “…a unitary and internally unaccountable executive (the colonial governor), possessed of extraordinary powers, a centralized administration, subordinate courts, compliant chiefs with no organized opposition party,”[3] Given this history of unchecked powers at the executive level, post-colonial leaders sought to regain imperial status; legitimizing their colonial nostalgia in the name of urgent developmental goals and achieving greater unity.[4] Coupled with the wealth of what scholars call the ‘large reservoir of unrivalled legitimacy’ that comes with founding fathers’ “founder rights,” many African States, as in Zimbabwe, revised and replaced the post-colonial parliamentary model with an executive presidency. Thus, “the process of reconfiguring legitimacy within the postcolonial state and society had but one beneficiary, the president.”[5] Legislative and constitutional changes only took the constitutional order closer and closer to the colonial past.

 

Interestingly, in spite of various waves of constitution building, no African state has opted to return to the parliamentary model with its system of checks and balances and parliamentary sovereignty. To the contrary, the imperial presidency has thrived. Further to various constitutional reform exercises, it was noted that the emerging Presidencies retained the monopoly of policy initiatives, dominated law-making and thus remained “the real source of the laws governing society’s routine social and economic activity.”[6] The irresistible conclusion was the existence of a cosy relationship between the people, or at least political elites, and the imperial presidency. Concordantly, it was noted that calls for political change in Africa were driven more by a desire to be part of government rather than to seek to reform it.[7] In this vein, emerging constitutions were more concerned with elections and the politics of turnover in high office rather than the rule of law, constitutionalism, checks and balances and reducing the powers of the executive. This preoccupation with elections is driven, fundamentally, by a confirmation bias and failure to problematize institutional excess. That is to say, people believe their own person will use those same (excessive) powers with greater moral aptitude, not indistinct from Dambisa Moyo’s advocacy for a benevolent dictator.[8]

The Principals to the Inclusive Government who overwhelmingly endorsed the Constitutional Draft

Comparing the outcome of Zimbabwe’s constitutional reform process to the pitfalls noted by scholars in other jurisdictions is both informative and illuminating. This is more so because the Constitution of Zimbabwe represents a significant constitutional consensus. It was approved by 94.49% of voters in a referendum held in March 2013. It had the support of President Mugabe’s ZANU PF, Morgan Tsvangirai’s MDC-T and Professor Welshman Ncube’s MDC. In fact, leaders of newly emerging political parties such as Tendai Biti of the People’s Democratic Party (PDP), Elton Mangoma of the Renewal Democrats of Zimbabwe (RDZ) and Joyce Mujuru of Zimbabwe People First (ZPF) were all in support of its enactment. The only significant opposition took the form of a ‘Take Charge’ campaign led by the National Constitutional Assembly (NCA) together with the Zimbabwe Congress of Trade Unions (ZCTU), a faction of the Zimbabwe National Students Union (ZINASU) and the Progressive Teachers’ Union of Zimbabwe (PTUZ). Outside of this coalition, the constitution was universally accepted. It is a reflection of some shared understanding of politics, power and constitutionalism in Zimbabwe.

However, if the pitfalls noted by Prempeh and others were warnings, they were not heeded. The President’s powers remain substantially intact. He retains exclusive powers to choose an unlimited number of cabinet ministers and deputy ministers[9] who, including the President, are the real source of laws for the palpably weak legislature (which he can dissolve if it does not pass his national budget or passes a vote of no confidence in his government[10]). He retains a wide array of appointing powers and remains both head of state and government. The only restraint on the presidency is the imposition of the two-term limit. Thus, in the words of Prempeh, it is the rules of entry and exit and not the rules of play which have changed. As succinctly put by scholars: “…the contemporary African president generally retains within the constitutional and political orbit the essential attributes of imperium long associated with presidential power in postcolonial Africa. The imperial presidency in Africa has been term-limited but not tamed.”[11]

This begs the question of how such a broad civic and political consensus would support retrogressive provisions already warned of by scholars. There could have been enthusiasm over other provisions in the constitution (expanded declaration of rights, constitutional commissions, affirmative action for women) as well as the view/hope that the spirit of the constitution would overcome any seemingly retrogressive text (both views which have surely been discredited).

 

 

Another possibility, which I would opine more accurately accounts for this consensus, is the fact that people follow the power. They prefer leaders who wield immense power albeit without an appreciation of its truly corrosive effect. It is not just ZANU PF which supports an all-powerful leader. Steps taken over a long time have increased the amount of power wielded by Morgan Tsvangirai, the leader of the main opposition MDC-T. In national politics as in opposition politics, leaders have amassed immense powers for themselves with the people’s consent. Thus people not only want powerful leaders, but want to follow powerful coalitions which are likely to lead to electoral victory. This would explain why the parties to the Inclusive Government were in agreement over the imperial presidency. It can be argued that African peoples, broadly, have more intimate encounters with power in the form of chiefs who are not themselves representatives of limited executive power; meaning more people are inclined to believe in benevolent paternalism than limited power through checks and balances, making constitutionalism and the rule of law an exercise in social engineering.

This preference for power replicates itself at all levels, including in civil society where one continues to witness power being amassed in the hands of individuals and is legitimized in the broader context of fighting an (equally) evil regime. The same “founder rights” are used to legitimise wealth accumulation and exclusive use of resources by a small clique of powerful civic elites. Like Agent Smith replicating himself throughout the Matrix in the Matrix trilogy, the self-serving habits of the dictatorship are reflected and replicated throughout society and are sanctioned and given constitutional approval.

Like Agent Smith replicating himself throughout the Matrix in the Matrix trilogy, the self-serving habits of the dictatorship are reflected and replicated throughout society and are sanctioned and given constitutional approval.

Making an appeal to the greater good or showing evidence of malfeasance either by the regime or its opponents to a member of either is akin to trying to convert a religious person, that is to say, it is all about the power and the glory. No matter what argument is advanced, persons will align with the centre they believe holds real power; be it the power of incumbency (ZANU PF) or power of numbers (MDC-T), what will hold sway will not be the power of the principle (democracy/constitutionalism/rule of law). As long as constitutionalism and the rule of law continue to hold illusory power and/or value, the popularity of the imperial presidency, with its ostentatious exhibitions of power and authority, will continue to hold sway.

 

David T Hofisi is a human rights lawyer and writes in his personal capacity

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[1] “Limited Vision Behind Contemporary African Constitutionalism” is a phrase by H.Kwasi Prempeh and a sub-heading in his paper: “Africa’s “constitutionalism revival”: False start or new dawn?”

[2] See H.Kwasi Prempeh Africa’s “constitutionalism revival”: False start or new dawn?

[3] See Number 1 supra

[4] See the rhetoric of Mwalimu Julius Nyerere: “Development must be considered first…Our question with regard to any matter – even the issue of fundamental freedom – must be, ‘How does this affect the progress of the Development Plan:”

[5] See Number 1 supra

[6] See Number 1 supra

[7] See Number 1 supra.

[8] “In a perfect world what poor countries at the lowest rungs of economic development need is not a multi-party democracy, but in fact a decisive benevolent dictator to push through the reforms required to get the economy moving”  ― Dambisa Moyo, Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa

[9] See Sections 104 and 105 of the Constitution of Zimbabwe

[10]See Sections 143(3) and 109(4) of the Constitution of Zimbabwe

[11] See Number 1 Supra

IN COURTS WE TRUST: JURISTOCRACY AND CITIZEN DISEMPOWERMENT THROUGH EXCESS FAITH IN THE COURTS

In this blog post, I make the claim that insistence on litigation has unduly given prominence to the judicial branch of government at the expense of the representative arms of the State; thereby disempowering the masses.

The putative father of the Constitution, James Madison, thought the legislative branch of government would emerge as the government’s strongest arm;

“In republican government, the legislative authority necessarily predominates.”[1] 

He posited that as the branch of most proximate to the people, coupled with its law making ability, it would emerge the most powerful.[2] However, with the post-World War II emergence of global constitutionalism and its features of written constitutions with declarations of fundamental freedoms, judicial review and rejection of legislative sovereignty, the power of courts, particularly Constitutional Courts, has grown exponentially.[3]

It has long been understood why policy makers would rather delegate policy making authority to the courts thereby allowing for their growing influence. This reduces their own decision making costs and shifts responsibility to institutional apparatus. Further, politicians can rely on the judiciary's apolitical and professional image to gain more support and legitimacy for otherwise controversial and possibly outrageous policy choices.[4] In this way, political decisions are insulated from popular political pressure. This has been the gradual progression from democracy to juristocracy, where more and more decisions are left to and thus made by the least representative branch of government – shielded from the fundamental base of any democratic matrix: the people.

 

However, and particularly in Zimbabwe, there is a similar relationship between citizens and the judiciary. Just like the policy makers, the general populace would rather shift the decision making role to the courts in lieu of demanding it from their elected representatives. The last general election was held further to a court challenge. It was the judiciary which set the date for the election. The decision to outlaw child marriages was made by the judiciary and not the legislative branch. In fact, activists are now advocating for the legislative branch to follow up on the court’s decision. A myriad of issues including ZBC licensing and absence of laws on devolution have been brought to the courts ahead of popular expression or sustained lobbying of representative arms of government.

There are many possible reasons for this phenomenon and it is, indeed, not anomalous for the courts to be called on to resolve controversies. What is remarkable is the extent to which they have been called in Zimbabwe at the expense of other branches of government. People generally have more confidence in the courts due to their professional and apolitical image. Further, legitimacy questions arising from elections have reduced people’s faith in their elected representatives and the political architecture. There is also the scourge of violence that is unleashed on any form of popular expression that is deemed to be against the State. Thus, just as the policy makers would rather that the Courts sanitise any controversial policy measure, the people would rather the Courts reduce the personal risk and political costs of any disapproval from the State through their cloak of legitimacy; everyone can hide behind the adage that the courts have spoken! Thus the politician can remain in power, safe from public pressure whilst the people can also have a binding decision reached whilst safe from police brutality. The courts become the great sanitiser in that scenario.

 

Another reason though, is that of lack of access. Parliament is detached from the people. Demonstrating within a proximity of parliament is actually prohibited. Further, once people elect their representatives, their voice is only heard through committee hearings (which do not need to take their views into account) or public demonstrations (which tend to involve violent confrontations with the police). By contrast, the Slovenian constitution provides for popular initiatives. That is to say, four thousand voters can get the legislature to vote on a proposed legislative initiative whilst forty thousand voters can get a referendum to reject proposed legislation.[5] Other legislatures provide for a process of recall of legislators by voters. In Zimbabwe once the election is done, participation in governance tends to also be over. Similarly, the executive is insulated from the people with no mechanisms for engagement. This leaves only the judiciary as the accessible avenue for redress. 

Thus as other branches of government retreat from the popular political pressures, the judiciary’s power and influence grows. However, since the Judiciary itself is appointed by the executive – this growing influence can be manipulated by the executive by delegating controversial measures to the unelected branch of government (which the populace views with a semblance of legitimacy) as a ploy to keep the masses without a voice and disempowered.

When political parties filed an urgent application for the release of election results in 2008, every other action was halted and strategy suspended until the courts had spoken. This is just one example of how institutional features such as rules of sub judice make the courts particularly disempowering. Any movement which is led by legal practitioners is likely to overstate the role which litigation should play in the democratic process. It is vital to hold all branches of government accountable and to revive their representative function rather than burden one branch of government in the (mistaken) hope that, because of their professional and apolitical outlook, they will always be the ‘good guys.’

 

David T Hofisi is a human rights lawyer and writes in his personal capacity

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[1]See:  http://www.enotes.com/homework-help/from-reading-no-51-federalist-papers-please-198543

[2] See number 1

[3] See Dejonge Matthias,Faculty of Ghent University, Academic Year 2014-2015: Constitutional Courts: Democracy vs. Juristocracy?

[4] See Number 3 at page 25

[5] See also the Constitution of Croatia

THE OLYMPICS GAMES AS AN ARGUMENT FOR GREATER INCLUSIVITY AND CITIZEN EMPOWERMENT

In this blogpost, I make the claim that the Olympic Games show the benefits of ethno-diversity and citizen empowerment 

The United States of America (USA) extended its dominance in the medals count at the Rio 2016 Olympics. It remains the country with the most gold medals and overall medals tally in the Summer Games. There are many possible reasons to explain American supremacy in the summer games, from superiority of resources and training regimes to identification of children with specific physical attributes to excel in particular fields. In this blog, I make the claim that the all these factors are enhanced by the USA’s ethnic diversity and citizen empowerment. Whilst the USA is not even close to being the most ethnically diverse country in the world, their ability to make use of their ethnic diversity in the context having the third biggest population in the world accounts for their superiority. Further, they are able to empower their citizens, from an early age, to be able to play a meaningful role through sport. In an era of the parlance of shutting down borders, building walls and extreme vetting, continued US success at the summer games is a shining example of the benefits of inclusivity as opposed to exceptionalism.

The USA had won 116 medals (43 of them being gold) at the Rio Olympics at the time of checking. The next country in the order of ranking was China with 70 and the United Kingdom with 66. The population of China is in excess of 4 times the population of the USA – making the point that one needs more than just numbers. The USA benefits from a high population and considerable diversity in its population. It is certainly more diverse than China, ranking 85^th on James Fearon’s Ethnic and Cultural Diversity by Country, with China coming in 138^th (Zimbabwe is 101^st). There is much to be said about harnessing a global pool of talent within a single country. This is not new – people remarked at the ethno-diversity of the French football team that won the Soccer World Cup in 1998 and the UEFA European Championship in 2000. From diversity always emerges the best of human talent and ability. This phenomenon replicates itself at various levels. At my high school, the performance of the football team was always a reflection of the scouting conducted at football tournaments. The more talent that was recruited from other schools, the higher the performance. The more inclusive we are of ‘others’ the more we excel as a people.

THE 1998 FRENCH WORLD CUP WINNING TEAM, NOTED FOR ITS RICHNESS IN DIVERSITY

Thus the normative lesson to be drawn is one of inclusivity and participation. The less we include others the less we succeed. However, as already pointed out, it is not enough to simply have people, they must be meaningfully included in order to reach their full potential. There is still need to show leadership through inclusion. This is evident not just from sport but in the workplace as well. It is not enough to have people in the workplace or have their physical presence in meetings. A meaningful contribution to decision making and reaching out for their opinions not merely to legitimize the leadership’s already established views is key in ensuring that institutions benefit from the pool of talent they have. Abraak Saati’s work on the Participation Myth offers a great model for different forms of participation from mere tokenism to full participation.[1] 

It is only in circumstances where individuals have no fear of participation that institutions benefit from their members. However, far too often, in the workplace as in countries, institutions suffer from asymmetry of skill and capacity cultivated by a culture of fear. Even in the courtroom, it can sometimes feel as though the legal practitioners are passive participants since the bench has decided on the verdict ahead of proceedings. Similarly, democracy is modelled based on the assumption that an informed and active citizen is not afraid in participating in his own governance. Since the government is often the first to impede the citizen from doing so, the country does not benefit from its own talent. Thus the two step process of including others and then giving them meaningful role is never achieved.

The British television show QI (quite interesting) not only awards points for correct answers but deducts them for commonly believed and yet wrongful answers. As such, quite often, the most silent participants win the most points. I make the counter claim. It is only when people can actively speak out and are given a meaningful role that countries, like the USA with its strong free speech protections, can make full use of their human resources and succeed on the international level.

David T Hofisi is a human rights lawyer and writes in his personal capacity

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[1] See The Participation Myth Outcomes of participatory constitution

building processes on democracy Abrak Saati at page 22

WELCOME BACK MIGHTY WARRIORS, WHILST YOU MADE PROGRESS ABROAD, WE REMAINED PAINFULLY IN SITU...

This blog post links the treatment of the Zimbabwean female football team, the Mighty Warriors, to the power of sport as an indicator of moral, cultural and State failures in the treatment of its citizens.

This last week the country was understandably apoplectic over the treatment of the Mighty Warriors on their return from the Rio Olympics. Their spirited performances and dogged determination (leading them to score in each of their games) was a source of deserved pride and credit. It is fair to say that without winning a single match, they won over millions of hearts (even Manchester City Captain Vincent Kompany tweeted in their favour). Thus the nation was horrified by images of the Mighty Warriors being ferried from the airport in a school bus and claims that they were offered US$5 (or US$1 depending on what you read) and told to be on their way home.

Whilst this is disgraceful, it is not, in my view, surprising. Sport is a unique way of assessing the status of the citizen in relation to the State and State institutions. The protocol regarding travel for State leaders is well established and well-funded as an extension of their elevated status. The attendant red carpets are rolled out with police escorts; they are, of course, representatives of the people. 

Sport however, flips the script. Ordinary persons take on this representative role, and depending on their success, can garner more popular support by galvanizing entire nations to associate with the success of their feats. What is the State to do when ordinary citizens return from playing this representative role (which is often reserved for elites)? The response is normally one of acknowledgement; with the greater the success meriting more prominent acknowledgement. From this despicable fiasco of the Mighty Warriors at one end of the spectrum to Kristy Coventry returning to various pieces of largess and national salutation at the other.

Then President of the Zimbabwe Olympic Committee, Paul Chingoka joins Kirsty Coventry for the pomp and fanfare after her success at the 2004 Olympics

However, when the dust settles, the stale air of familiarity makes for a startling revelation. The sporting figure, with new found recognition and glory, is confronted with the sameness of (ill) treatment. Cassius Marcellus Clay (as he then was, later Muhammad Ali) claimed to have thrown his gold medal from the 1960 Olympics into the Ohio River after being denied a meal in a restaurant due to the colour of his skin. Even after becoming an Olympic Champion, his treatment was still predicated on race. No matter the progress made on the international plane, the stagnancy at home would ensure his glory was short lived. At the 1968 Olympics, Americans Tommie Smith and John Carlos won gold and bronze medals, respectively, in the 200 metres event. Rather than salute their national flag on the medals' stand, they raised their fists in the Black Power salute, a protest against the USA's treatment of black people. The iconic image is reflective of the irony of having to salute the flag of a State which will invariably treat one as a second class citizen. And as so often happens, the basis for treatment of a citizen is not equality and universal human rights but rather such grounds as race, class, gender, political affiliation...in spite of any national success on the regional/international plane. 

Americans Tommie Smith and John Carlos raise their fists in the Black Power salute at the 1968 Olympics in protest against the treatment of black people in the USA

In this sense, competing in sport at a global level is comparable to the emancipating effect of the world wars on women in the work place. With most men away at war, women entered the work force and claims about women’s incapacity for work were debunked. Similarly, sport can be dignifying and assertive of people’s rights. It shows that persons can not only be representative of their countries but bring glory to them irrespective of their perceived station. A group of ordinary women can make the whole world admire and receive tweets from prominent sports-persons. This results in unspoken but real suspicion from elites who believe they have the legitimate claim to any representative role and subsequent glory. When Kirsty Coventry won her first gold medal for Zimbabwe, then President of the Zimbabwe Olympic Committee, Paul Chingoka, had to join her at the airport for the pomp and fanfare. The elites must be associated with and benefit from the feats of ordinary citizens and concordantly, distance themselves from any of their failures and retain plausible deniability. This antagonism is latent, it is never spoken, but is often the inarticulate premise for the treatment faced upon return. 

After my first journey to Europe, my project manager greeted with a snide remark reminding me that my true place was in rushing to places like Dotito, Dublibadzimu and Siyakobvu. In other words, do not let this foreign experience get to your head, you are back and we are in charge! There is a power dynamic at play, and elites feel a need to retain their place in the spotlight. We underestimate primal mammalian jealousy, more so when it is from persons who hold higher station to our own. Every time I return to Zimbabwe I am taken aback by the stale air of familiarity; the sameness, the stagnancy and the desire to reinforce hierarchy by discounting the foreign experience. That gold medal don't mean you ain't a nigger no more Mr Clay, and that global adulation doesn't mean you will be treated better Mighty Warriors.....Welcome back!! We are Mighty proud of you. However, we must apologise, as you made progress abroad we stayed the same at home….and you suffered for it. Shameful indeed. 

David T Hofisi is a human rights lawyer and writes in his personal capacity