WHAT A BIDEN/HARRIS VICTORY WOULD MEAN FOR ZIMBABWE

The US presidential election takes place on 3 November 2020. One week from today, Donald Trump could be re-elected or, as suggested by the polling data, Joe Biden will become the 46th President of the United States. This post explores the implications of a potential Biden/Harris victory on relations between Washington D.C. and Harare.  

Currently, there is no scope for government to government assistance between the US and Zimbabwe, save in the humanitarian sector. Thus, cooperation remains  alleviatory. The US$318 million provided by the US in 2019 was in such fields as health, humanitarian and food assistance as well as disaster relief. This dwarfs the US$500 million provided annually to neighbouring Zambia for instance. Further, it does little to account for the absence of non-humanitarian government to government assistance and non-eligibility for assistance through such avenues as the African Growth and Opportunity Act and the Millennium Challenge Corporation.

This state of affairs is rooted in the regime of sanctions imposed on Zimbabwe. The response to these restrictions has been varied. On the right, there is a government-driven sanctions obsession according to which the sanctions must go mantra is the panacea to Zimbabwe’s moribund economy. The left insists on sanctions denialism, arguing that government malpractice is more problematic than any foreign restrictions. This post does not seek to prove or disprove either position, focussing instead on US laws and whether a change in presidency could alter their effect.  

The US sanctions on Zimbabwe flow from two branches of government. The restrictions imposed by the legislative branch are contained in the Zimbabwe Democracy and Economic Recovery Act (ZIDERA). The restrictions by the executive branch are in a series of executive orders issued by President George W. Bush and renewed by President Obama and President Trump. Under section 4(c) of ZIDERA, the US government is obligated to oppose and veto any application by Zimbabwe in a multilateral financial institution for services including, but not limited to, finance, credit facilities, loan re-scheduling and international debt cancellation. These can only be permitted if the President of the United States certifies that the Government of Zimbabwe has met the requisite conditions set out in section 4(d) of the Act. These conditions are wide ranging and include restoration of the rule law, respect for property rights and, following a 2018 amendment, also include pre and post-election conditions and restrictions on the role of military and traditional leaders. The amendment also requires implementation of the SADC Tribunal rulings which were interpreted by the Government of Zimbabwe as a reversal of the land reform program. This is the extent to which ZIDERA contains economic sanctions. It undermines economic progress by using American votes and influence to exclude Zimbabwe from accessing international financial services.  

Executive order (E.O.) 13288, 13391 and 13469 constitute what some people have called targeted sanctions or smart sanctions. By executive action, President Bush identified persons and entities whose properties and interests in the US were blocked and were not be …transferred, paid, exported, withdrawn, or otherwise dealt in. These are the sanctions which have been renewed by each president after President Bush and were recently updated to include the names of Kudakwashe Tagwirei, Owen Ncube and Anselem Sanyatwe. In a nutshell, the sanctions differ in scope. The economic sanctions under ZIDERA target the entire Zimbabwean economy whilst the executive orders affect the specified individuals and entities. Within political discourse, the sanctions-obsessed activists emphasize the effect of ZIDERA on the ordinary person whilst the sanctions-deniers present the targeted nature of the executive orders as representative of the entire sanctions regime. 

These restrictions affect Zimbabwe in two ways. The first is the real and quantifiable inability to access debt relief and lines of credit from the World Bank, IMF and African Development Bank. The effect of these sanctions on such sectors as local banking have been observed by scholars. The second, less quantifiable but more far reaching consequence is irreparable harm to the nation’s financial reputation. The existence of sanctions lowers investor confidence and thus reduces foreign direct investment. Some scholars rightly note that, by the time ZIDERA was enacted, the IMF had already suspended lending to Zimbabwe. This suggestion that ZIDERA has not had any effect on the Zimbabwean economy seems oblivious to the effect of sanctions on the investment climate as well as the damage done to the nation’s credit-rating. This is not to suggest that there are no internal rule of law challenges in Zimbabwe or problems with rampant corruption. The effect of sanctions on a polity is not mutually exclusive with the prevalence of internal governance failures. 

The U.S. President has enormous powers in foreign policy. In the case of Zimbabwe, the American President could certify Zimbabwe to access financial assistance or debt relief in terms of section 4(c) of ZIDERA. The President could also repeal the executive orders containing targeted restrictions. In his presidential campaign in 2008, then candidate Obama showed an openness towards détente, stating his willingness to meet with leaders of such countries as Venezuela, Cuba and North Korea. This led to the Iran Nuclear Deal and moves towards normalization of relations with Cuba. Candidate Joe Biden's campaign has been far less inspiring.  He has eschewed any truly transformational promises, only pledging to restore the status quo prior to the Trump presidency. As Krystal Ball explained on The Hill, Joe Biden’s pledge to restore the soul of America is simply the liberal equivalent of Trump’s Make America Great Again (MAGA). Neither slogan is forward looking, with both hearkening to an over-celebrated past be it the 50’s for Trump or the Obama years for Biden. Nothing new is being promised, making it unlikely that new relations will be forged with erstwhile enemies. 

As part of MAGA agenda, President Trump made it his mission to undo President Obama’s legacy from the Paris Accords to the Iran Nuclear deal. Biden’s presidency would seek to reverse these actions. It is highly likely that the Iran Nuclear Deal will be reinstated and moves towards normalization of relations with Cuba will resume. On the hand, countries perceived to be too close to Trump will be alienated, and this will likely be the fate for North Korea and Russia. Biden’s hawkish and neo-conservative approach to both has already been previewed by his remarks in the last presidential debate.  This is also the likely fate for Zimbabwe. Even though Trump was not conciliatory with Zimbabwe, the accusation that he was ‘cozy’ with dictators will make Biden sensitive to similar perceptions. If he wins, President Biden will seek to restore and strengthen ties with traditional allies and not perceived pariahs like the regime in Harare. This is ironic since President Mnangagwa has, through Mthuli Ncube, adopted the neo-liberal obsession with budget surpluses and GDP growth which is highly regarded in Washington D.C. The agreement to compensate white farmers also seems in line with the requirements in ZIDERA. However, the reality is that the sanctions-denying activists will have a powerful ally if Joe Biden secures the White House. ZIDERA was sponsored by a total of four senators, two of whom were Hillary Rodham Clinton and Joseph Robinette Biden. Hillary Clinton recently tweeted demanding the release of political prisoners in Zimbabwe, highlighting how the corporate wing of the Democratic Party is a powerful amplifier of opposition and civil society voices in Zimbabwe. With Joe Biden in the White House, the bipartisan agreement to financially isolate Zimbabwe and target persons and entities would thus continue without any significant alteration. 

In the Democratic Party’s primaries, there was only one candidate who insisted that, 

…global institutions, like the IMF, World Bank and UN Security Council (which we lead) must reflect the changing global demographics and add Africa to leadership roles. 

In his words, 

Africa must play a greater role in international development or else…we will repeat the colonialist/imperialist history of the 19th and 20th century that suppressed African opinions and impoverished Africa.

That candidate was Senator Bernie Sanders from Vermont. Unfortunately, the nomination was won by a centrist neo-liberal politician who is unwilling to challenge the international development architecture. Joe Biden would be the first establishment candidate to win the presidential election since George H.W. Bush in 1988. The successive run of outsider governors, a junior senator and a New York businessman will be halted by the incumbency of a Washington insider who has the underwhelming agenda of resetting rather than reforming Washington D.C. For countries like Zimbabwe, this can only mean a lukewarm serving filled with more of the same; an imperial global order which uses human rights speak to coerce the conformity of the global south by threatening economic consequences for countries that dare challenge the orthodoxy of wealth retention by monopoly white capital. 

CONSTITUTIONAL COURT INTERVIEWS 2020: Specialized Court without Specialized Judges?

The Judicial Service Commission (JSC) held interviews for Constitutional Court judges on 28 September 2020. This will enable formal separation of the Supreme Court from the Constitutional Court. The 2013 Constitution provided a seven-year transition in which Supreme Court judges doubled as the Constitutional Court panel. In spite of the arduous and at times rigorous interview process, it is highly likely that the five acting judges of the Constitutional Court will simply be made substantive. This has significant implications on the court's jurisprudence.  

The interview process was profoundly technical and challenged candidates on their knowledge of procedural requirements, substantive law and institutional design. It was clear that the judges were, without exception, more comfortable in the procedural realm as opposed to the substantive questions of legal rationale. They could more easily state the correct procedure, but struggled to account for why it exists. In other words, they are decidedly positivist. Similarly, they were very uncomfortable with abstract concepts such as the rule of law, constitutionalism and judicial activism. It was only Justices Hlatshwayo and Zhou, who both have deep backgrounds in academia, that were reasonably comfortable in this area. Justice Hlatshwayo particularly flourished through his insistence on turning the adversarial and examinatory proceedings into exploratory discussions on law and judging. It must be recalled that most of the candidates were trained in the 70’s. Contemporary discussions on theoretical foundations of law and politics cannot be presumed to permeate judicial institutions. As Justice Gowora put it, they neither have the time nor freedom to be part of the relevant trainings. Further, one can only be an entry level judge upon attaining the age of 40. Thus, by the time one seeks higher office, the training from law school may no longer be congruent with contemporary notions of constitutional adjudication. 

Even though the Constitutional Court sounds like a specialized court, ideally staffed by experts, it will likely be a court of generalist career judicial officers, no different from an equivalent common law Supreme Court.  This is why Justice Zhou faced rigorous questioning regarding his experience, having only sat on the High Court for eight years. Justice Zhou premised his candidature on his rich background in constitutional law training. However, the Chief Justice questioned what was so special about Justice Zhou to warrant him skipping the Supreme Court, where his competitors have sat, and preside in the apex court. In other words, candidature to be a Constitutional Court judge has less to do with specialized training and more to do with relevant judicial experience. Certainly, the JSC Guidelines on the interview process place a premium on Legal and life experiences relevant to the position including judicial posts held... To that extent, the hierarchy of courts is based on seniority and not peculiar constitutional expertise. 

Those who felt the interview questions were too dense missed the attempt at presenting generalists judges as specialized constitutional adjudicators. The questions were an opportunity for career judicial officers to showcase their suitability for the narrow and specialized function of the Constitutional Court. This came to a head when they struggled to deal with concepts that lie at the heart of that constitutional function. Be that as it may, there were still many illuminating moments, the most important of which was when judges were asked what they would improve on the current constitutional court bench. Justice Garwe was refreshingly honest, noting that insistence on procedural rectitude was contrary to the constitutional requirement that these are kept to a minimum. As a result, many cases are not heard on the merits. Presented with the same question, Justice Makarau found no fault in the Court, remarking that it could only be improved by elevation of the level of representation by the lawyers. Whilst Justice Garwe showed the progressive and liberal approach in the 2013 Constitution, Justice Makarau stuck to the positivist approach of judicial perfection. Further, whilst Justice Patel noted that the Court might not be getting enough work, Justice Makarau made the contrary claim that judges were overwhelmed. It was also refreshing to hear Justices Patel and Gowora swat aside the issue of judicial capture, stating that judges should be able to take criticism and show independence through their work. 

Those who support interviews believe they enhance transparency. There is certainly value in hearing from judges outside the courtroom setting. However, the result might have been a foregone conclusion. The interviews were not highly subscribed with no nominees interviewed from private practice, civil society or academia. This might have been due to the realization of the high favourability of the sitting judges. Even in South Africa, where the first Constitutional Court bench had appointments from outside the judiciary, prior judicial experience is now pre-requisite for appointments. In the USA, there has neither been the nomination nor confirmation of a Supreme Court justice without prior judicial experience since 1971. 

 If the interview process was truly determinative, then Justice Zhou would be in with a shout. However, there is a high premium on judicial experience. As Justice Patel pointed out regarding strengths of the current bench, they have collegiality and have gathered the relevant experience since 2013. Chief Justice Malaba and Deputy Chief Justice Gwaunza were both appointed to their posts as the most senior judges. There is a strong norm which supports judicial appointments based on seniority. This certainly flies in the face of the interview process as influential in the appointment process, but is also important for comity and collegiality on the bench. The JSC Guidelines on the interviews do indicate that interview performance is only one factor to be considered in deliberations, with others being comments from the Law Society, from the general public and considerations of diversity and gender composition. Perhaps constitutional adjudication does not need specialized judges and constitutional law is like any other form of law which is within the competence of any judge. Nevertheless, in the context of an institution which is created to give specific visibility and protection to the Constitution, it does seem paradoxical to create a specialized court without specialized judges. The court lacks specialist lawyers, having judges also drawn from general practice. 

Interviews create expectations. they are an independent source of power. When ED sought to push Chiweshe, they were used by CJ to highlight strength of Malaba. Chiweshe knew this, so he did not attend interviews. They were meant to also parade the in coming judges. The power of the JSC to make their preferred candidates look good. 

This means the Constitutional Court will not be a new and dynamic guardian of the Constituion. Rather, it will be a new Supreme Court by another name. 

THE TRUTH ABOUT OUR JUDICIARY

This post is a response to Dr. Alex Magaisa’s “The trouble with our judiciary.” In that piece, Dr Magaisa uses the decision in Gonese & Majome vs Parliament & Others CCZ 4/20, together with the failure to hold public interviews, as evidence that the very men and women with the power to defend the Constitution are conspiring to trash it. These are strong words and grave allegations. As a student of Constitutional Courts, I have a keen interest in the public’s perception of judicial bodies as well as the distance between judicial outcomes and how they are shaped and presented for public consumption. Thus, the allegations warrant further attention.

1.    Unconstitutional constitutional amendments

In the Gonese case, the Constitutional Court ruled that passage of Constitution of Zimbabwe Amendment (No.1) Bill in the Senate was constitutionally invalid as the threshold of two-thirds was not reached. For Dr.Magaisa, this marks an important precedent that a constitutional amendment can be unconstitutional on procedural grounds. However, this has never been in doubt. There are two types of invalid constitutional amendments. The first is based on process and the second on substance. Process invalidations are procedural. They ask whether the power to amend was exercised in accordance with the provisions of law. On the other hand, content invalidations are substantive. They inquire whether the actual content of the amendment is consistent with the constitution. It is akin to two students who inform the teacher that their test results are wrong. The student who says the addition of awarded points is inaccurate makes a procedural claim whilst the one who argues that their responses deserve a higher grade makes a substantive claim.

Every country which sets procedures for constitutional amendment allows invalidation of unprocedural amendments. It is the entire object of setting out the procedure. However, some countries go further and allow their courts to rule that a constitutional amendment is invalid even if it is procedurally valid. This is the unconstitutional constitutional amendment. It limits the capacity of parliament to amend the constitution if that amendment is against a constitutional norm. This empowers courts to evaluate constitutional conformity as though the amendment were any other law. This power has been exercised in a few countries including India, Turkey and Bangladesh. In most countries, the legislature retains original constitution-making powers and can amend any part of the constitution subject to the procedural requirements. These amendments are never rendered unconstitutional since they form part of the constitution upon enactment.

In Gonese, the Constitutional Court did not suggest that there is scope for an unconstitutional constitutional amendment. It couched amendability as part of the constitution’s perpetual mutability and parliament’s flexibility to adapt to the needs of society. The counterbalance to mutability was stated as rigidity through a special amendment process. The court did not identify substantive limits on the amending power. Even though it highlighted that amending is not the same as replacing, this also points to the procedure for the two rather than a suggestion that parliament lacks the power to do either. Restating that laws passed unprocedurally are invalid is hardly new or innovative. The Court would have to cite provisions which cannot be amended outside of constitutional replacement to suggest acquiescence with the idea of unconstitutional constitutional amendments.

2.    Invalidation of Bill instead of an Act

Dr Magaisa is befuddled by the fact that the Court ruled against the bill when applicants were challenging the validity of an Act of Parliament, because the President had already signed the Bill into law. He suggests that a request for a cow was met with the granting of a goat, enabling the court to send the bill to the Senate. For this reason they, according to him, invent a new application for the applicants, treating their challenge as one against a Bill rather than an Act. This allegation strikes at the heart of judicial integrity, with the potential to intensify feelings of hostility against a bench portrayed as deceitful and self-indulgent.

The allegation is inaccurate. The Gonese application challenged the passage of the bill, and on that basis subsequently challenged the Act. Both were before the court. This is reflected in Dr. Magaisa’s own writing: They argued that the special parliamentary procedure used to pass the Constitutional Bill was flawed and that Parliament had failed in its duty to uphold the Constitution.  The relief sought by the Applicants appears in the judgement as follows:

The relief sought is by way of a declaratory order in the terms that –

1. Parliament failed to fulfil the constitutional obligation provided for in s 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No. 1) of 2017 on 25 July 2017 and 01 August 2017 in the National Assembly and the Senate respectively.

2. Accordingly, the proceedings in Parliament pertaining to Constitutional Amendment Bill (No. 1) of 2017 on 25 July 2017 and 01 August 2017 be and is hereby set aside.

3. The first respondent pays costs of suit.

The court’s version of the Applicants’ draft order court is corroborated by multiple court reports. It also approximates to the case of Gonese and Majome vs President of Zimbabwe and Others CCZ10/18 in which the same applicants argued against the presentation and passage of the bill amending The Local Government Act. Dr. Magaisa makes several errors, the first of which is the claim that this application was filed after the bill was signed into law. This application was filed on 6 September 2017 challenging the bill. On the very next day, the amendment act was gazetted in General Notice 491A/17. The applicants then filed an additional application to challenge the Act, and requested the court to consolidate the two records:

To the extent that the president has now signed the Bill, it is now necessary to file this application which is directly connected and interlinked with Case Number CCZ 57/2017(earlier application). Naturally this matter and Case Number CCZ 57/2017 have to be consolidated together at the time of hearing…Once a finding is made that Parliament breached its constitutional obligations as contended in Case Number CCZ 57/2017, it is quite clear that the president has nothing to assent to [sic].

This not only appears from press reports, but the judgement itself:

The application was filed on 06 September 2017. Before it could be heard, the President signed Constitutional Bill (No. 1) 2017 into law. The applicants filed another application under CCZ 58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

It is abundantly clear that there was no invention of an application by the Court in order to rule against a bill instead of an Act. The applicants challenged both, arguing that a finding against the bill would lead to a subsequent order against the Act. They did not request a cow only to be given a goat – they request a goat, on receipt of which they argued entitlement to a cow. What Dr. Magaisa calls a new application was an additional application. The court heard both and granted the first application whilst giving the Senate a chance to correct their error, failing which the relief in the second application becomes effective. In the circumstances, we can lay to rest the questions over judges failing to distinguish between a bill and an act whilst focusing on the casting of aspersions over facts which are ascertainable from a reading of the judgement.

  

There is increased frequency of claiming judicial manipulation of court records. In the High Court case of Mashavira, the judge was accused of using the wrong constitution. When actually pressed on the issue, the opposition relented and conceded that the correct constitution had been used. After the Supreme Court decision in Mashavira, judges were accused of changing the names of parties by switching the MDC-T to MDC. This belies the fact that the High Court papers resembled those in the Supreme Court. It suggests that court decisions are being weaponized to advance peculiar party interests at the expense of the public’s perception of the courts.   

3.    Justice Gwaunza’s non- recusal

The other serious charge levelled against the judiciary is aimed at Deputy Chief Justice, Hon. Elizabeth Gwaunza. Since she was appointed in terms of the impugned amendment, Dr Magaisa states that she must have recused herself from the case. Her participation meant there was self-interest in the Court’s decision to save the invalid amendment. This, he argues, explains why the Court fashioned relief allowing the Senate to save the amendment. In summary, Dr. Magaisa charges highest court with inventing an application so they could save one of their own from a constitutionally invalid appointment. In the same vein, he states that the second most powerful judge in Zimbabwe presided over a case oblivious or indifferent to a conflict of interest.

Yet again, Dr. Magaisa is dead wrong on the facts. These two applications were heard on 31 January 2018. This appears from the judgement itself and press reports. Justice Gwaunza was appointed Deputy Chief Justice on 30 March 2018, a full two months after the hearing this case. She could not have recused herself for an appointment yet to be made. The self-interest that Dr.Magaisa cites was non-existent. It is evident from the judgement that Justice Gwaunza heard the case and gave her opinion prior to her appointment as the suffix to her name is JCC (Judge of the Constitutional Court) and not DCJ (Deputy Chief Justice). Yet again, the facts alleged and aspersions cast could have been dispelled from a reading of the judgement. There is no evidence that any application was invented or recusal needed in the circumstances.

4.    Parliament continuation

Did the court take parliament for granted in giving it an opportunity to remedy this defect? The Court suspended its order of invalidity so the Senate has a chance to rectify its constitutional breach. Suspended orders of invalidity are used by constitutional courts as a soft remedy. It is a dialogic device enabling the judiciary to engage the legislature in a constitutional conversation. Some scholars argue that courts are more activist when they have this power since the state can remedy constitutional infractions before the order of invalidity is effective. This power is in section 175 (6)(b) of the Constitution which empowers the Court to;

make any order that is just and equitable, including …an order suspending conditionally or unconditionally the declaration of invalidity for any period to allow the competent authority to correct the defect.

This is the power which the Court cited. Dr. Magaisa objects on two grounds. First, he argues that the bill lapsed since the relevant session of Parliament ended in July 2018. Secondly, this is a different parliament. In his view, the Act should have been deemed unconstitutional, thereby concluding the entire matter. However, the bill’s passage was challenged in both houses and only succeeded in respect of the upper house. Whilst it goes without saying that all bills lapse ahead of a new parliamentary session, the relief granted in this case is by no means the norm. It is an exceptional remedy meant to address an exceptional situation. Consider the fact that this bill did not lapse as a matter of fact. It ‘passed’ the Senate and was signed into law before Parliament was dissolved. It was only rendered ‘pending’ when the Court ruled against the procedure in the Senate. This does not fit neatly into lapsed bills in the contemplation of the Constitution. Since the previous Parliament cannot be re-constituted, this leaves the option of sending the bill to the current upper house.

Further, the Court affirmed that Parliament is a legal persona capable of suing and being sued. It acquires rights and obligations independent of its members. Whilst the Senate is indeed composed differently, it remains the properly constituted upper house of parliament. This does not amount to taking the Senate for granted as it can always refuse to pass the bill. Sending the bill to a differently composed Senate is not outrageous, more so in exceptional circumstances to correct a constitutional defect. As an analogy, the US Constitution has not time limit on the amendment process for similar reasons. The last amendment to the Constitution of the USA acquired sufficient state ratifications in 1992 following the law’s passage in 1789. These states were obviously constituted differently from the time the law was passed but still exercised the constitutional power of ratification. This is not an example to normalize this practice, but to show that institutions have the capacity to fulfill obligations in spite of shifting membership. One may disagree with this approach, but that is not legitimate basis to claim that the Court has no such power when it is clearly provided in section 175(6)(b).

5.    Zibani inconsistency

Finally, Dr. Magaisa highlights the failure to conduct interviews for judicial appointments as contrary to the Romeo Zibani decision. In that case, the Supreme Court underscored the primacy of compliance with the Constitution no matter the stated intentions of the executive. The Constitutional Court was formally separated from the Supreme Court on 22 May 2020. This created five vacancies on the Constitutional Court. Dr Magaisa argues that the Judicial Service Commission (JSC) ought to have advertised the openings and conducted public interviews in accordance with section 180. I was in agreement with this claim, only taking umbrage at the suggestion that this could only be driven by inappropriate executive influence. However, having reached out to the JSC for a comment, I am no longer inclined to agree with Dr.Magaisa. 

Mr Walter Chikwana, the Acting Secretary of the JSC, pointed to the wording of the section 180: 

Whenever it is necessary to appoint a judge...the Judicial Service Commission must...

The obligation on the JSC is activated by the necessity to appoint a judge. It was not necessary to appoint a judge prior to 22 May 2020. At that point, the Constitution provided  that Supreme Court judges presided over the Constitutional Court. The necessity to appoint was created by the court separation. In other words, the requirement for public interviews was activated on 22 May 2020, and the Acting Secretary confirmed that the declaration of vacancies has already been communicated to the JSC, triggering processes which will culminate in public interviews. This makes it abundantly clear that the men and women entrusted with protecting the Constitution are not conspiring to trash it, but are faithfully complying with its provisions. 

Dr.Magaisa then speculates the rationale for his perceived non-compliance.

It seems Chief Justice Malaba and the Judicial Services Commission have succumbed to the political agenda of amending the Constitution…

There is no real evidence provided for this claim. Even though the current scenario is presented as similar to that in Zibani, it is actually different. In Zibani, a Cabinet Minister argued that an unsigned memorandum to Cabinet indicating an intention to amend the constitution was sufficient basis to secure an interdict against constitutional compliance. It was also in the context of a divided government in the throes of factionalism driven by Robert Mugabe’s advanced age. For these reasons, the Supreme Court in Zibani stated that the process of tinkering with the constitution was ‘fraught with uncertainty.’

In the current matter, the executive has not sought or been part of court process to interdict the JSC. The discussion is not based on an internal memorandum. An amendment bill was actually gazetted, presented in parliament, and the JSC presented its views. Those views indicate that the JSC supports reforms to judicial tenure, preferring five year extensions for all judges rather than annual extension for judges of the two highest courts. As Dr. Magaisa acknowledges, passage of the bill was conceivable were it not for the supervening impossibility of the COVID-19 crisis. This is not a judiciary succumbing to a political agenda. It is common to order institutional behavior in accordance with looming legal or political changes. For instance, the Constitution suspends by-elections when a vacancy occurs within nine months of a general election. In the US, Republican Senate Leader Mitch McConnell refused to confirm President Obama’s Supreme Court pick, Merrick Garland, because the US was in an election year. The Zibani requirements for constitutional compliance remain relevant and have been respected, since the JSC has initiated the process for interviews, only encumbered by the delays occasioned by the COVID-19 pandemic. 

6.    Conclusion

We are living in the post-truth era in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief. A sense of injustice from the Presidential Election Petition, fomented by the Mashavira judgment, has popularized attacks on the bench including through selective reading of the Malawi Election Petition. Partisanship fuels dramatic yet dubious narratives, which in turn entrench political divisions and intensify frustration with national institutions. Allegations against the judiciary can be peculiarly injurious since it is the branch of government which is most constrained from delivering contemporaneous feedback and rebuttals. Thus, it is vitally important that we rigorously vet factual assertions in a sincere quest to ascertain the truth. This not only avoids needless undermining of judicial institutions, but assists in keeping personal allegiance in check so that expediency does not trump integrity and the politically fashionable does not trump the factually verifiable. 

TWISTS AND TURNS IN MDC WRANGLE

This week I offer an update of court cases and developments in the opposition in the context of the 7^th anniversary of the 2013 Constitution.

1.     29 May 2020 Ruling

On Friday 29 May 2020, Justice Chitapi will deliver a ruling on an application to stop further recall of MDC Alliance parliamentarians. The ruling will determine whether the Alliance application is properly before the court. Several issues were raised concerning the application including the capacity of the Alliance to sue in its own name. If that ruling is in favour of Dr.Khupe, the case will be dismissed. If the ruling is in favour of the Alliance, then lawyers will argue whether the court should stop any further recall of MP's. This is unconnected to the cases filed to challenge the actual recall of four parliamentarians. The Friday ruling will indicate whether lawyers can argue to stop further vacancies being announced whilst the Alliance challenges the recall of its MP's. Thus, whatever outcome on 29 May 2020, these matters will remain in the courts for the foreseeable future. 

2.    ‘National Council’ Resolutions

On 21 May 2020, a group calling itself the National Council and National Executive of the MDC-T at the time of the death of Morgan Tsvangirai met and demanded a 6^th June meeting with Dr.Khupe, Douglas Mwonzora and others. According to Jameson Timba,  this was done because the  MDC-T Constitution allows the National Council to self-convene on petition from at least a third of its members. Section 6.4.2.6 of the MDC-T Constitution provides as follows:

An emergency National Council Meeting may be convened on the basis of a petition signed by at least one third of the members of the National Council provided that at all material times only the President or any person specifically delegated in writing by him or her shall have the right at any time of convening a meeting of the National Council.

Thus, whilst the party constitution allows a petition for an emergency national council meeting, it does not allow the National Council to self-convene. Douglas Mwonzora correctly pointed out that it is only the National Chairperson who presides over national council meetings and the Secretary General convenes them under the supervision of the President under sections 9.3.1 (h) and 9.5.1(a) of their party constitution. In other words, the 21 May 2020 meeting was not properly constituted. However, this is not fatal – as long as it is not fashioned as a meeting of an organ of the party but just a group of persons who met to petition the Dr.Khupe leadership. If it is presented as a National Council meeting, it is as void as the Central Committee meeting which ‘recalled’ Robert Mugabe.

3.    MDC-T/MDC-Alliance Membership

The 21 May announcement introduced a new dynamic to this wrangle. Previously, MDC Alliance members insisted that the Supreme Court judgement had nothing to do with them. They are now claiming a right to be consulted in the implementation of a judgment which, in their words, is not germane to their political fortunes. They constituted themselves under a constitution they disowned to meet a leadership they do not recognize. This is not what the constitution permits. They can only petition Dr.Khupe if she is their leader and they are members of her party, which would be at odds with the mantra of Chamisa Chete Chete. It is the dark art of applying rugby rules to a game of soccer. What is handball when committed by the other team is not only excusable, but actively encouraged when done by your own team.  

If the MDC Alliance members can petition Dr.Khupe under the MDC-T Constitution, then she is their leader with an attendant power of recall. It also means the petitioners are members of the MDC-T, without which membership they have no right of audience. It redounds to the original claim that the Alliance was a coalition whose individual membership was retained by its constituent parties. MDC Alliance party members cannot constitute themselves as the authentic structures of a different party altogether. This duality of membership is being created to re-enact the events of 2018 when Dr. Khupe’s constitutionally mandated incumbency was usurped in favour of Advocate Chamisa. It is meant to flex Chamisa’s populist muscle to counter the weight of two court orders. We are literally going round in circles. The main MDC’s response to the finding of constitutional violation is to re-engineer events which led to the current quagmire. Needless to say, this is not a spitting image of progress.

4.    What happened to the Alliance?

This foments confusion in an already messy set of narratives and counter narratives. For a long time, it was understood that the Alliance ceased to exist after elections when the MDC incorporated MDC-Green and PDP. This all changed after the Supreme Court ruling. Suddenly, it was claimed that the Alliance had actually continued after elections but only switched to a stand-alone party incorporating MDC-Green and PDP. This mutated further when we were informed this week that the Alliance ended on 2 March 2018 and became one political party with MDC-Green and PDP before elections! According to Jameson Timba,  the 11 September 2018 appointments of Welshman Ncube as vice president and Tendai Biti as deputy chairperson actually occurred before elections. It is enough to make your head spin. In the Supreme Court, the MDC had argued that the wrong constitution was used by the High Court before conceding that the correct version had been used. After the Supreme Court ruling, the MDC distanced itself from that constitution and adopted the Alliance identity. After insisting on all platforms that the Alliance did not need a constitution, Chalton Hwende indicated this week that they actually have a constitution! It is not clear whether there is a coherent set of facts in this matter, or rather a contrivance of claims conjured up over time to ameliorate the effects of an adverse court ruling.

5. So what?

Ultimately, this probably does not matter for many voters. They just want a viable alternative to ZANU PF and believe any misfeasance by MDC is negligible in comparison to the ruling party. That is a reasonable calculation. However, it remains possible to support the opposition and still question why the MDC has a written constitution if they want to operate with the sovereignty of the UK parliament. Constitutional supremacy is at odds with the current claims of plenary powers accorded to the majority. It also seems counter-intuitive to subject the party to court processes if party leadership is unwilling to comply with court orders. This approximates to the words of then Commissioner of Police Augustine Chihuri when faced with an order to evict land invaders in 2000:

… Police intervention in one place will apocalyptically provide the match stick that will ignite this beautiful country of ours into a bloody conflagration.....Equally the courts are not the forum where the land problem can be solved. It required an armed struggle to begin to attempt a solution to the problem. …. This Honourable Court should be mindful of that.

The MDC has adopted a similar approach in discounting the role of courts and arguing for impossibility of enforcement. On this 7th anniversary of the 2013 Constitution, we must recall that the rule of law also requires compliance with unfavourable court orders. Political parties and nation states are guilty of enacting constitutions which they are not willing to implement. This implementation gap defines the distance between the respective constitutions and a culture of constitutionalism. Constitutions are not just about majorities. They give minorities a chance to avoid tyranny by numbers. Insistence on majoritarian views to trounce constitutional imperatives stifles the capacity for diverse and inclusive development. Further, perpetuating a battle which was settled by the Supreme Court only entrenches this aversion to the rule of law leaving the party vulnerable to more adverse rulings. The 22nd of May should remind us all that it is commitment to constitutionalism which will restore the image of our country and its political parties as grounded in justice, equality and the rule of law.

PARLIAMENTARY RECALL: ORIGINS, PERILS AND WAY FORWARD

This week I look into the rationale for parliamentary recall, why it persists and the way forward for opposition politics.

1.    Background

The original Lancaster House Constitution did not contain a right of recall. In fact, two members of (PF) ZAPU crossed the floor and joined ZANU (PF) in the 80’s without facing expulsion. When ZANU PF itself faced internal desertion, it created this law to buoy its dominance. Robert Mugabe expelled his Secretary General, Edgar Tekere, from ZANU PF in 1988. However, Tekere retained his parliamentary seat, leading to  a constitutional amendment establishing parliamentary recall. Therefore, this law was enacted for two reasons: to ensure party ouster resulted in parliamentary expulsion as well as to prevent defections from party membership. Overall, this law was meant to bolster ZANU PF’s conflation of party and state whilst grounding its “one center of power” principle.

This shows how parliamentary recall was never a benign form of voter-protection which has only been sullied and weaponized by latter day hyper-partisans. It was created to protect elite power by coercing the conformity of parliamentarians. Consequently, the provision has been activated as a top down enforcement mechanism rather than bottom up expression of voter preferences. Munyaradzi Gwisai, a firebrand politician in the order of Edgar Tekere, was the first to be recalled in 2002. In subsequent years, losing factions of political parties have been the primary target for parliamentary expulsion. This was the case when the provision was invoked by Prof. Arthur Mutambara against Abednico Bhebhe and others (2009), by Morgan Tsvangirai against Tendai Biti and others (MDC-T Renewal, 2014), Robert Mugabe against Mutasa and others (Mujuru faction, 2015), Emmerson Mnangagwa against Ignatius Chombo and others (G40 faction, 2017), Nelson Chamisa against Dr. Khupe (2018) and Dr. Khupe against Prosper Mutseyami and others (2020). In each episode, elite leadership enlisted the power of the state to expel rival factions. It has never been an expression of shifting allegiances at constituency level. The 2020 case of Dr. Khupe is unique to the extent that she exercised power over a faction which defeated her at the polls. This reflects a systemic contradiction dealt with in greater detail below.

2.    Global perspective

Laws granting parties a right of recall are almost non-existent in established western democracies. South Africa relaxed its anti-defection laws through a 2002 amendment whilst New Zealand got rid of it for stifling legitimate dissent. These countries consider floor-crossing as integral to political freedom. The electorate expects representatives to shift allegiances in accordance with voter preferences. The same representatives may vote with liberals on abortion, but vote with conservatives on free trade. There is no illusion that the views of the party will always reflect and protect voter interests. On the other hand, such laws are prevalent in developing democracies where political parties constitute a powerful middleman between the voter and their governance. In such settings, the power of the voter is surrendered to the party upon declaration of the constituency winner. Parties are modeled as trustees shaping, rather than agents representing, the will of the people. Trusteeship involves delegation of significant responsibility to an independent party such as the courts, whilst agency denotes acting in the shadow of the principal who retains primary decision-making authority. Voters are, by our constitutional construction, the beneficiaries of, rather than the principals to, their elected representatives. The principal, with the ever-present power of recall, is the political party.

3.    Party vs People

This is a classical will of the people vs will of the party dynamic. A provision protecting voters would be akin to section 84 of the Constitution of Uganda which allows two thirds of registered voters to recall their representative on submission of a signed petition. The parliamentarian is forced to be responsive to the constituency on the pain of recall. This also reflects the view expressed by Professor Madhuku that parliamentarians represent the entirety of their constituencies and not just those who voted for them or their party. This is not the case in Zimbabwe. A parliamentarian could ignore their constituency but retain incumbency if they maintain cordial relations with party leadership. This sucks out the agency of mobilized masses into insulated elite structures, resulting in the following outcomes:

i)               Voters are locked out of parliamentary decision-making and like their representatives, are beholden to political parties;

ii)             Voters are incentivized to support candidates with sufficient party support no matter their policy preferences, educational and/or representative qualifications;

iii)            Conflation of party and electorate as a precursor to party-state conflation;

iv)           Partisan divisions are entrenched since parliamentarians need only respond to their party and not any national or constituency wide imperatives;

v)            Power transfer from those with support of the people (populists) to those with the backing of the party (institutionalists).

The institutionalist leanings of this framework mean that voter preferences can be overridden through party capture. This usually plays out during primary elections when popular local candidates duke it out with candidates imposed with powerful institutional backing. Since agency is surrendered to parties upon declaration of a winner, the determinative factor ceases to be who has the backing of the constituency, but who has control of the institutional levers of power. The Supreme Court order granted Dr.Khupe institutional control over a party which overwhelmingly supports her rival. The power of recall allows Dr. Khupe to enforce this contradiction. Needless to say, this is bad for democracy. It will be exacerbated if government removes the requirement for by-elections as reported, giving the power to replace legislators to political parties. This is essentially how the national president is replaced, and extending the practice to parliament would reduce the relevance of the voter even further. It would give Dr. Khupe the power to replace parliamentarians chosen under the stewardship of Advocate Chamisa, deprive such voters of parliamentary representation and generally expose voters and their representatives to uncertainty every time there is a party split. 

4.    Way forward

The long term solution lies in taking this power from the parties and giving it back to the people via constitutional amendment.  Unlike in South Africa, Zimbabweans do not vote for political parties but the actual candidates. They must therefore retain the power of recall by meeting a threshold of two thirds or 75% of registered voters in the constituency concerned. In the short term, Chamisa’s party must fight on all fronts. They announced parliamentary disengagement to consult their structures, but they need not disengage to conduct consultations. Disengagement from parliament could result in further expulsions. It hardly seems strategic to disengage and deliver parliament as a one-party chamber to ZANU PF, more so when the same party is demanding payment under the Political Parties Finance Act. ZANU PF is accustomed to dominating parliament and would railroad its legislative agenda which might include the afore-cited removal of the requirement for by-elections. It would be better to have representatives fighting ZANU PF on behalf of the people rather than retreating from an elected chamber because ZANU PF is acting like… ZANU PF.

Similarly, the extra-ordinary congress must now be a no brainer if the power that was lost is to be regained. There was a time when Chamisa’s party could dismiss the Supreme Court judgment and trudge on as a new political outfit. That time is gone. The reality is that a rival faction has been awarded enormous powers resulting in a major shift in the political landscape. Advocate Chamisa has the numbers to win at Congress and should leverage his support to thrash out a deal and avoid a messy and highly combative congress.  Mediation is in order, perhaps by a respected party elder such as Advocate Eric Matinenga. Chamisa could be elected unopposed on the understanding that Dr. Khupe will lead the formation which contested the last election under her wing. They would identify areas of convergence and demarcate independent zones for autonomous decision making (perhaps POLAD) whilst caucusing together to confront ZANU PF. This would be the new MDC Alliance. A photo-op would be done with Chamisa and Khupe holding hands, bringing closure to this protracted saga and moving the spotlight back to the various national crises. If Chamisa could enter a ZEC run election against Mnangagwa, he can surely participate in a Congress under the interim leadership of Dr Khupe. He has always stated a preference for the court of public opinion, which is what a party congress constitutes. Would it not inspire voters across party lines if opposition leaders came together and displayed the sort of magnanimity lacking in our national leadership? In the famous words Obama’s chief of staff Rahm Emmanuel, every crisis is also an opportunity which must never go to waste.

REALITY CHECK ON PARLIAMENTARY RECALL

Four MDC legislators were recalled from Parliament on 5 May 2020. Charlton Hwende, Prosper Mutseyami, Tabitha Khumalo and Lillian Timveos’ seats were declared vacant pursuant to the powers bestowed by the Supreme Court judgment of 31 March 2020. In that ruling, leadership of the MDC was returned to Dr. Thokozani Khupe pending an exraordinary congress. The Chamisa formation had reacted with characteristic defiance, avoiding judicial scrutiny by insisting on the MDC Alliance identity. However, this ejection is the first indication that claims of the non-consequential nature of that judgement were misplaced. I previously suggested that adopting the MDC Alliance identity meant relinquishing that of the MDC which would come with loss of real power. In this post, I deal with some of the controversies associated with this development.

1.    How can the people who represented the MDC Alliance be recalled by the leader of the MDC/MDC-T ?

Many have questioned how MDC Alliance legislators can be subject to the whims of the MDC-T. These are political entities which competed against each other in the last election. Since the MDC Alliance legislators were elected on an Alliance ticket, it is only the Alliance which can recall them from Parliament. This is an understandable but mistaken reading of the National Constitution. The floor-crossing provision in the Constitution does not protect the right of the party under which one contested, but the party to which one belonged :

if the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament …

The question is not, as suggested by other commentators, which party they respresented, but to which party they belonged. Even the most senior members of Chamisa’s party acknowledge that the MDC Alliance was only a coalition of parties during and immediately after the 2018 elections. It had no individual membership. None of the MDC Alliance legislators belonged to the MDC Alliance – they belonged to their own political parties. These political parties formed the institutional membership of the Alliance. If the MDC Alliance ever became a political party, this occurred after elections. Thus, the constituent political parties retained the right of recall in terms of the Alliance Agreement and the National Constitution. The MDC-T was a member of the MDC Alliance. This is the party to which the legislators belonged in 2018 and it is the party under the interim leadership of Dr.Khupe. In other words, these MP's were recalled by the MDC Alliance, through its constituent party the MDC-T. Therefore, Chalton Hwende’s tweet indicating that he left the MDC-T in 2018 is confirmation of the grounds upon which he was recalled.

The role of the Speaker and President of the Senate has been previously enunciated as declaring vacancy of the seat upon receipt of notification. This appears to be what occurred in the National Assembly. The Senate had two sets of letters, with one adjudged to be contrary to the Supreme Court ruling. This would represent new territory, that is, how to proceed on receipt of two letter with competing claims. Given the sequence of events, it appears both officers were on firm footing in their actions.

2.    How can one person lead two parties in Parliament?

It is not yet clear whether the MDC Alliance is a political party. Though many claim that it is a political party, its constitution remains elusive. The prevailing view is that these entities are factions of the same party. Much confusion has been peddled by senior members of the Chamisa party. They insist that ‘registration’ with ZEC, receipt of money under the Political Parties Finance Act and acknowledgement by the Constitutional Court all point to evidence of the existence of a political party. This is not true. There is no registration of political parties in Zimbabwe. In other words, there is no statute whose requirements are met to confirm the existence of a party. It is established by its own constitution. This was stated by the Constitutional Court in the case of Madzimure vs Senate President CCZ8/19 :

A political party is a product of a voluntary association of people who share a common ideology …. It is constituted in terms of its own constitution and as such is a legal entity independent of members. 

Therefore, it is not the Electoral Act, Political Parties Finance Act or Parliament which confers the status of a political party. This is done by the party’s own constitutive documents. When one approaches ZEC to participate in elections, ZEC is not conferring legitimacy on a political entity, but merely accepting its participation in elections. Similarly, the Political Parties Finance Act is a mechanism for public financing of electoral participation rather than a registry for conferring status on political entities. The MDC Alliance agreement states that it is a non-compete pre-election agreement. There is no evidence that this pre-election pact evolved into a political party as no Alliance party constitution has ever been made public.  Even if such constitution were made public, it would not prove that this party participated in elections as it was only constituted thereafter. In other words, those legislators participated in elections on behalf of the Alliance as a coalition rather than a political party. 

This means Dr. Khupe leads a party and an Alliance of parties. Both Morgan Tsvangirai and Nelson Chamisa led the Alliance and their respective political parties as well. However, the important difference is the fact that Dr. Khupe leads two entities which competed against each other in elections. This seems counter-intuitive, more so given the different electoral outcomes for both entities. It is the product of the Supreme Court judgment which effectively treated these entities as factions of one party. It is not unheard of for a person to be a substantive leader of one entity and interim leader of another, even if it presents a conflict of interest. In the absence of a law being violated, this eventuality will continue to shape our reality.

3.    They should all resign en masse

Many have also suggested that all MDC Alliance legislators should resign in solidarity with their colleagues and trigger a mini-general election. This would avoid parliamentary ejections and take away leverage from the Khupe camp by forcing matters to be settled at the polls. There are other considerations to be made together with such a bold move ;

i)               It is not apparent when such by-elections would be held in light of the Covid 19 global pandemic. Many countries have been legislating for postal ballots to avoid in person contact at the voting booth. The time needed for such reforms, in the broader context of containing the pandemic, may delay the prospects of the by-elections. A quick-fix and swift return to Parliament might not be feasible in the circumstances. It might lead to a protracted period outside of the legislature with no input in parliamentary committees, no participation in inter-parliamentary forums and no capacity to hold the executive accountable.

ii)        Any such by-election would probably need to be under a name other than MDC, MDC-T or MDC Alliance. These have either been relinquished by the Chamisa camp or been subject to effective control by the Khupe camp. There is no longer room to hide under the subterfuge of the MDC Alliance. This might actually meet the demands of supporters who want an entirely new identity which does away with the continued struggles with Khupe’s camp.

iii)     Most importantly, it is not just members of parliament who are subject to recall. In terms of section 278 of the National Constitution, members of local authorities can also have seats declared vacant. Dr. Khupe could recall MDC mayors and councillors, meaning the Chamisa camp would need to similarly consider relinquishing control of all 26 local authorities it won in the 2018 elections and wait for by-elections after surrendering power in key urban centers. Such a radical move would be highly presumptuous, destabilizing and create even more uncertainty.

4.    ZANU PF hidden hand?

As has become customary, we were served with a copious dosage of political deflection, with everything presented as the handiwork of ZANU PF. Robert Mugabe always asserted that he was not concerned with Morgan Tsvangirai but his handlers in Britain and the USA. The Chamisa camp has adopted the same approach. Nothing that is done by Dr.Khupe is taken as an exercise of agency by an independent and determined woman. Rather, it is interpreted as evidence of a big man behind her throne. Let us take a step back and consider that when Morgan Tsvangirai recalled Tendai Biti and others in 2014, Parliament complied. When Nelson Chamisa recalled Thokozani Khupe in 2018, Parliament complied. It is only now that it is people from the Chamisa camp that are recalled, that parliamentary compliance with notification of recall is labelled fascist and unacceptable – a jaw-dropping double standard.

POLAD has been presented as evidence that Dr Khupe is a ZANU PF pawn. This is the same argument used against Professor Welshman Ncube, David Coltart and others in 2005, with Polad being the contemporary equivalent of the Senate. These appeals to ZANU PF are unhelpful. They take away individual agency, ignore independent decision and unduly credit ZANU PF as an omnsicient, omnipotent political player. Whilst this is effective at discrediting members of the opposition, it builds a perception of ZANU PF invincibility as the ultimate chess player that is always ten moves ahead of the main opposition. This lauds ZANU PF for a tactical nous it does not possess whilst entrenching partisanship through reductionist reading of everything as a simplistic binary of pro/anti ZANU PF.

5.    Way Forward  

The current situation highlights the limitations of headstrong defiance as a strategy to deal with adverse court rulings. It is a reminder that reality cannot simply be spoken into existence. Rather, it should remind popular leaders to actually show leadership. It was only after Morgan Tsvangirai lost in the 2013 elections that he thawed relations with Welshman Ncube and was open to forming a coalition. What will it take for his successor to similarly realize that opposition forces are stronger together? Those who call these internecine battles a distraction are absolutely correct. It is a zero sum game ; every moment spent fighting opposition members is at the expense of confronting the national crises. Leadership surely involves more than securing millions of votes; it must be inclusive and bring people together – even those viewed as highly objectionable. The MDC Alliance is Morgan Tsvangirai’s legacy and it would behoove his successor to make that tent a little bigger, if only for the sake of the democratic movement. If that cannot be done, we shall be treated to an endless spiral of factional confrontations which have little to no effect on ZANU PF's dominance of local politics.