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.