-Alex Magaisa
This article examines power and how it is distributed within the Zimbabwean state. It challenges the traditional conception of the state, arguing that it does not accurately reflect the location of power in Zimbabwe.
It argues that there has been a reconfiguration of the state and that this has direct implications on the principle of peaceful transfer of power following elections.
It matters to political contestants and observers to have a firm appreciation of the geography of power because, without this, it will be difficult to unlock the levers of power.
It will become apparent that while it is very important, the electoral process is only one of a package of processes that are necessary to unlock the levers of power.
Some things ought to be done, far away from the public glare. Although this is true of Zimbabwe, it is not unique to it.
The traditional conception of the State
The traditional view of the state is that it is made up of three separate arms, namely the executive, the legislature, and the judiciary.
Executive
In this conventional model, the executive, which is usually referred to as the government, administers the affairs of the state using executive powers conferred by the Constitution.
It is led by the President who appoints a Cabinet.
Ministers run government departments that are staffed by members of the public service. These public servants serve the state which means they can survive a change of government.
Unfortunately, the politicization of the public service has often compromised the independence and professionalism of public servants.
Since the executive wields a large amount of power, constitutional rules are usually designed to hold it to account. For their part, the President and Ministers like to have their way which is why there is an erosion of constitutional checks and balances through retrogressive amendments.
Legislature
The legislature, which is usually referred to as the parliament, has the law-making function, although as will shortly be explained, this is a facade.
Parliament consists of members that are elected. Zimbabwe uses a hybrid system of electing representatives to parliament. 210 members of the National Assembly are elected on a First Past the Post System.
This simply means the person who gets to the line first wins the election. One paradox of this system is that the majority of voters might lose the election. How does that happen?
Consider a situation where there are 3 candidates A, B, and C, fighting over 20 votes. Let’s assume A gets 7 votes while B gets 8 and C gets 5. B will be declared the winner because he is the first to cross the line.
But 12 people did not want him. The winner’s votes are less than the combined votes of his opponents. Under this system, the majority must contend with the fact that they will be represented by someone chosen by the minority.
60 female MPs and 10 youths are elected based on another system called Proportional Representation (PR). All Senators are also elected based on the PR system.
The PR system means members are elected based on their share of the vote in an election. To go back to our example, depending on the method of calculation that is used, both B and A would win seats. This would ensure that most voters (15) are represented.
This is not the place to debate the merits or demerits of either system.
I said the notion that the legislature makes laws is a façade because, for decades, our parliament has acted as no more than a rubber-stamping authority for what the executive wants. Bills are generated by Ministers in the executive.
They are debated in parliament and while this might occasionally generate heated arguments, ultimately the executive gets what it wants. This is usually because the ruling party controls the majority in parliament and even if they have other views, the parliamentary whipping system ensures that they all toe the line.
Therefore, what parliament does at best is give a stamp of legitimacy to laws that are designed by the executive.
There is another function of the legislature that allows minority parties to have more effect than they have in the law-making process. This is the function of holding the executive to account. Members can question Ministers in parliament, but even better, they can call public officers to parliamentary portfolio committees to account for their work.
One of the more visible committees in recent years has been the Public Accounts Committee which was chaired by Tendai Biti. This committee exposed the multi-billion-dollar scandal concerning the corrupt Command Agriculture program.
Judiciary
The judiciary is the arm of the unelected. It consists of judicial officers that are appointed by the executive.
There are judges of the superior courts and magistrates who occupy the lower courts. The role of the judiciary is to interpret the law and resolve legal disputes. These can range from disputes between individuals to disputes between the state and individuals.
The judiciary is therefore the ultimate referee in the political system. For this reason, the independence of the judiciary is of paramount importance.
The paradox is that judges are appointed, a circumstance that gives the appointing authority opportunities for leverage and capture. If the appointing authority is overbearing, the judiciary’s independence will be undermined.
That is why there was a big ruckus last year when the government amended the Constitution to extend Chief Justice Malaba’s term of office by raising the retirement age when he was due for retirement.
That controversial extension created a situation where the Chief Justice is indebted to the President, which undermines public perceptions of his independence and general confidence in the judiciary.
The importance of independence from the appointing authority is why the 2013 Constitution had been carefully crafted to ensure that the process had some checks and balances and more transparency.
All candidates would be nominated by the public and shortlisted candidates would be publicly interviewed after which the Judicial Services Commission would make recommendations to the President.
Ultimately, the President was obliged to act on those recommendations. Unfortunately, this system was undermined by last year’s constitutional amendments further depreciating the independence of the judiciary.
Waves that have affected the traditional conception of the State
However, as I have argued before, this traditional model of the state is no longer an adequate representation of the geography of power within the Zimbabwean state. Two important waves have disrupted the traditional model of the state.
Chapter 12 Institutions
The first of these waves has not been successful in its disruptive effects. It is made up of the Chapter 12 institutions in the Constitution. The Constitution refers to them as “independent institutions supporting democracy”.
They include the Zimbabwe Electoral Commission (ZEC), the Zimbabwe Human Rights Commission (ZHRC), the Zimbabwe Gender Commission (ZGC), the Zimbabwe Media Commission (ZMC), and the National Peace and Reconciliation Commission (NPRC).
The other set is referred to as “independent institutions combating corruption”. They are the National Prosecuting Authority headed by the Prosecutor General (NPA and PG) and the Zimbabwe Anti-Corruption Commission (ZACC).
These institutions are collectively designed to provide checks and balances to the other arms of the state. Among the several objectives of these “independent institutions” set out under section 233 of the Constitution is “to promote transparency and accountability in public institutions” and “to secure the observance of democratic values and principles by the State and all institutions and agencies of government, and government-controlled entities”.
They are supposed to be key referees in the political system. For example, ZEC has an important role as the elections referee. The emphasis on the independence of these institutions is meant to ensure that they execute their mandates impartially and without undue influence.
However, in practice, these intentions have not been fulfilled. There are perceptions of institutional capture by the executive, a circumstance that has resulted in bias and ineffectiveness. As such while the Chapter 12 institutions could have solidified their role as a distinct arm of the state, they have become appendages of the executive.
Rise of the securocrats
The second wave, which ironically is based on illegality, has had a more significant effect on the nature of the Zimbabwean state.
One of the far-reaching effects of the coup in November 2017 was a reconfiguration of the Zimbabwean state with the security sector standing a distinct arm. This is a point that I made in the heat of the coup, noting that the separateness and distinctiveness of the security sector had been given judicial validation when the High Court issued orders whose collective effect was to give a veneer of legality to the coup.
Although it was clear that the constitutional command structure had been violently broken, the courts decided that the military’s conduct was lawful. A challenge that was later brought to the Constitutional Court was flippantly dismissed. I argued then, as I do now, that those decisions created dangerous precedents which could be used to justify future coups.
The primary function of the security sector is to defend the nation and to provide law and order. It consists of the army, air force, intelligence services, police, and correctional services.
The constitutional structure places the security sector under the overall command of the executive. All the security services are subject to the authority of the Constitution, the President, and the Cabinet. They are also subject to parliamentary oversight.
The security services and their members are prohibited from acting in a partisan manner; furthering the interests of any political party or cause; prejudicing the lawful interests of any political party or cause; violating the fundamental rights or freedoms of any person. Members of the security services are also not allowed to be active members or office-bearers of any political party or organization.
Despite these clear prohibitions, the security services dabbled in politics when they led the removal of Robert Mugabe from the presidency in November 2017 and have generally been associated with ZANU PF’s political interests.
Consider the police’s recent conduct in the by-elections campaign. By systematically banning the Citizens Coalition of Change (CCC) from carrying out its political rallies in favour of ZANU PF, the police are acting in a partisan and repressive manner.
The arrest and torture of a prominent CCC supporter and activist in police custody is yet another example of crude partisanship under the guise of law enforcement.
The security services permeate almost every sector of the public and private spheres. Retired generals sit on the boards of state-owned companies and other entities.
They also have seats in all three traditional arms of the state – the executive, judiciary, and parliament. Even ZEC, the elections referee, has admitted to using members of the intelligence services for constitutional mandates such as accreditation. This is in addition to the already significant presence of former military personnel in its secretariat where the Chief Elections Officer is a former military officer.
Kingmaker role
But by far the most important is the role of the kingmaker in the political system. This pre-dates the 2017 coup and as is well known goes to the days of the liberation struggle when commanders in the military wing of ZANU PF played a key role in determining the political leadership.
They helped in the ouster of Reverend Ndabaningi Sithole from the ZANU PF leadership in favour of Robert Mugabe. To that extent, despite being a national security service, the commanders have always had a vested interest in the politics of ZANU PF, in which they see themselves as key stakeholders.
Before the 2002 presidential election, the security services chiefs made an unprecedented move by publicly pronouncing their partiality with Mugabe and ZANU PF in his bitter contestation against Tsvangirai and the MDC. In 2008, after Mugabe lost the 29 March election to Tsvangirai, and close sources say Mugabe was ready to give in, it was the generals that stepped up and saved his presidency.
And in 2017, at the height of ZANU PF’s succession wars, it was the military that stepped in to settle the matter by taking sides with the Lacoste faction against G40.
The political role of the security services was summed up by Chiwenga just before the coup when he described the security services as “stockholders” of the nation. In the view of the generals, the politicians in the ruling party had failed and it was time for them as “stockholders” to take matters into their own hands.
What are the implications of this reconfiguration of the State?
The purpose is not merely to describe how the Zimbabwean state has been reconfigured by these critical events and processes but to examine the implications for the democratic struggle. The fact that they consider themselves “stockholders” means the generals see themselves as having a key role in determining political leadership. As such the success or failure of the electoral process must be considered against that background.
Constitutionally, the principles of multi-party democracy and elections are the legitimate ways by which political leaders are chosen. Indeed, the principle of transfer of power is tied to elections. This was jettisoned in 2017 when there was a power transfer without elections. The irony flew over the Mnangagwa regime which proudly proclaimed itself as the Second Republic to distinguish itself from the Mugabe regime from which it had usurped power.
What this means is that while classic theory says that power transfer is negotiated through the electoral process, the current model suggests that this is only one part of a more complex and nuanced political process. In other words, while it is critical, the electoral process is subject to qualification. Negotiating power transfer, especially in authoritarian regimes is a multi-faceted battle on multiple fronts. There is the public front, which involves election campaigns such as rallies, town hall meetings, and door-to-door campaigns. This is part of performative politics where the stage is the theatre, and the political leader is the main actor on the show.
The private front
There is also the private front which has several facets. One of these is the technical work that is done by the elections team. They analyze data. They engage ZEC and other stakeholders. These are the guys who make sure the party’s election machinery is operating. They fix the nuts and bolts of the election machinery. They identify problems and strive to fix them. Sometimes matters must go to court, which means long hours of liaising with lawyers and preparing documents.
The identification and training of election agents is the job of this team on the private front. They work mostly beyond the glare of the public. Many people will never know them and the role suits men and women who are not lured by fame.
They are the ultimate water-carriers of the party, performing all the hard and dirty work while politicians on the public front enjoy the limelight and take all the glory.
This role requires technical people who understand that their role is not to be politicians; that their destiny is not to shine but to make others shine. They are to the political party what the likes of Kante, Makelele, and Gilberto Silva are to their football teams.
Another facet of the private front involves backchanneling diplomatic engagements. These are unofficial but critical engagements between parties to a dispute. They happen despite what goes on at the public front. This team that does this work is even more private than the technical team that is involved in the electoral process. The work they do is not for public discourse. Some of them take their secrets to the grave.
For perspective, even when the guerrillas were fighting the Rhodesian regime during the war, some men and women were working hard behind the scenes to build bridges and negotiate the pithy subject of transfer of power.
The Lancaster House Conference held in 1979 that eventually brought independence was the last of several failed attempts to find a solution. But those who worked tirelessly behind the scenes did not stop what they were doing because the Geneva or Malta Conferences had failed.
While they were fighting at the war front, both sides knew that they would have to talk one day to unlock the levers of power transfer. The guerrillas knew that the goal was to achieve independence and facilitate the peaceful transfer of power from the colonial regime. For their part, members of the colonial regime wanted reassurance that they would not suffer retribution once they lost power.
The outcome was a carefully negotiated settlement that included compromises that allowed the white minority regime to leave with some dignity while opening the way for the new majority government.
The white generals like army commander, Peter Walls even kept their offices for a while, predominantly white civil servants got generous pension packages which could be paid wherever they chose to settle as they re-located, the electoral system even had a White Roll that ensured the representation of the white community. There was even a controversial constitutional clause that entrenched land rights for 10 years, effectively protecting the existing colonial landowners.
These things were by no means ideal, and the nationalists did not like them at all. They were particularly riled by the property rights clauses which protected land.
However, the nationalists agreed because of the demands of realpolitik. It was necessary to make some sacrifices to unlock the levers of power transfer. The war had become too long, painful, and exhausting. And as Sun Tzu says, no-one ever wins from prolonged warfare.
The cost of the war on the neighbours such as Mozambique and Zambia who provided rear bases was getting too high. President Samora Machel used his influence on Mugabe to relent at a time when the latter was threatening to go back to the bush.
In all this, some men and women kept the lines of communication open between the nationalists and the Rhodesian regime. Some went to the grave with their accounts.
Likewise, while we all saw the public spectacle of the coup that toppled Mugabe, very few are privy to the backchanneling diplomacy that went on behind the scenes.
By the time, Mugabe sent in his resignation letter to the Speaker of Parliament, you can be sure that a lot of effort and engagements had taken place to reach that stage.
Although I have written largely about Zimbabwe, these observations are not unique to us. Our southern neighbour, South Africa has a rich and diverse history of similar accounts leading up to the end of the Apartheid era. Much had to be done and given to unlock the gates of power.
And while there was a lot of public celebration at the spectacle of peaceful transfer of power in our northern neighbour, Zambia, few will know what really happened behind the scenes to facilitate it.
But it cannot have been smooth sailing. When the long-serving authoritarian ruler of Gambia, Yahya Jammeh was defeated in 2016, he did not want to leave.
But he was eventually ushered out of office, thanks to pressure from regional bloc ECOWAS but much effort would have been invested behind the scenes to reach that position. The US was on the brink of a constitutional crisis when former leader Donald Trump refused to accept defeat and a mob stormed Capitol Hill in 2021.
But key actors stood firm and facilitated power transfer. Again, much would have happened behind the scenes.
In conclusion, negotiating the path to power is no walk in the park. It is a complex process that involves a lot of work both on the public and private fronts.
Understanding the geography of power and the demands of realpolitik will be crucial as the opposition prepares for 2023. There will be some serious work on the private front and there will also be some important compromises that will have to be made. Such compromises will not please everyone.
They may even disappoint some people. But there is no wisdom in making threats when you don’t have the power to carry out those threats. Grand promises may please the gallery, but they will only enhance resistance. The opposition is not in power not because it lacks electoral appeal, no.
The major handicap has been a failure to unlock the levers of power transfer. Nelson Chamisa and the CCC have shown that they have the people. They must now work to gain the trust and understanding of the people who control the levers of power.
WaMagaisa
