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.