N/B this is a late post, it was written prior to the Zimbabwean constitutional court case (ConCourt) sitting that gave a clean bill of health to the July 2018 elections in Zimbabwe.
Whilst, the elections in Zimbabwe has come and gone, the ghost of the disputed elections still stare at the Zimbabwean populace. To many, the election results has been a bitter pill to swallow. This is considering that many expected the plebiscite to usher in new political players for the next five years.
The official results announced by Zimbabwe Election Commission which are disputed by the MDC-Alliance, Emmerson Mnangagwa, place the establishment candidate at 50.8% to Nelson Chamisa, opposition candidate’s 44.3% votes. The Zimbabwean opposition is at the cusp of a defining political moment. The MDC-Alliance has to make painful decisions. It has to weigh the options, whether to accept the poll results and move on. Or dispute and challenge them in the courts of law which might be a cul-de-sac. Alternatively, it may engage in extra-judicial means including mass protests. These seem unlikely given the heavy-handedness of the state and the invocation of the Public Order and Security Act.
Ghost of a disputed poll
What this election has also done is to leave a trail of a country deeply divided and in fear following the post-election episodes. The onus will be on the new President to heal and unite the nation which stands deeply divided right in between the middle. But this national healing is not going to be easy.
Again, there will be need for truth-telling, dialogue, historical accountability, remorse, justice and forgiveness. The National Peace and Reconciliation Commission (NPRC) which is in existence, apart from its involvement in the signing of peace pledges prior to elections, remains largely ineffectual and silent in the wake of the state’s heavy handedness post the 30 July plebiscite.
Move on – elections are behind us
Whereas the MDC-Alliance has vowed to contest the electoral results in the courts of law and through other constitutional means, whatever that means. There is a feeling among some analysts within and outside Zimbabwe that the Alliance should move on and prepare for 2023. The ‘moving on to fight another day’ narrative is premised on the assumption that the outcome of the court rulings will not be favourable to the opposition. Predictably, going to court will legitimise and sanitise Zanu-pf’s rule. In other words, there won’t be a ‘Maraga moment’ in Zimbabwe, a situation where the Kenyan Supreme Court led by chief Justice David Maraga annulled the August 8, 2017 election results.
With the benefit of hindsight, it is important to note that previous election disputes brought before the bench by the MDC party have not yet been settled. These spawn from the year 2000 – 2002. Such a precedent then makes many sceptical on the possibilities of a favourable and timeous judgment regarding the recent polls. History has also shown that there is lack of judicial independence in most African countries. In often cases, the judiciary is beholden to the incumbent. This is nowhere more evident in Zimbabwe.
But the temptation of moving on in the wake of disputed election results is not the panacea. Rather, it is problematic insofar as it will perpetuate the continued contestation of election results in Zimbabwe. The continued failure to cure and address the opaqueness and malpractices associated with the election management body (ZEC) will still cast a dark shadow on the country’s democratic ‘tradition’. The continued disputation of Zimbabwe’s successive elections exposes the challenges of elections as avenues for democracy. Again, the events surrounding the recent polls seems to confirm the notion that Zimbabwe has not yet matured in terms of fully embracing the tenets, norms and practises of electoral democracy. Zanu-pf party however, seem hell-bent on moving on to form the next government with or without the much-vaunted endorsement.
Litigating for electoral democracy
In other jurisdictions, in Kenya following the 2007 election violence and as part of the implementation of the 2010 constitution embarked on a process of judicial reform. But, in Zimbabwe the same judiciary that has failed to settle opposition election court cases is still in situ. There too, in Kenya, during this vetting exercise of judges, one of Africa’s finest legal scholars Albie Sachs opened the discussion on what he termed ‘Who will judge the judges’.
As the MDC-Alliance challenges the poll results in the Zimbabwean courts, it remains imperative to also pose the poignant questions on ‘Who will judge the Zimbabwean judges’. Or whether the judiciary will act according to the whims and caprices of the establishment.
Strictly speaking, it does seem the elections are done and dusted. The tempting view is that the MDC-Alliance court challenge will only be one of those academic endeavours that will help set a precedent for future case laws. This is unless and if there is a ‘Maraga moment’ – a situation which is highly unlikely. This is considering prevailing concerns of the judiciary bowing down to political pressure in Zimbabwe.
If pursued, the MDC-Alliance legal route will clearly prove the intersection between ‘living law’ (law as it is) and ‘living politics’ (politics of the day).
As many waits with bated breath – hopes are that the executive interference will not influence the judicial proceedings and outcome. But again, the opposition has a burden of proving the cheat and discrepancies in the vote tally.
Be that as it may, the opposition maintains it has the V11 forms which is ample and compelling evidence to prove the claims of election ‘rigging’.
Engagement with external actors.
It seems the international community, continent and the region have become weary with the Zimbabwean saga. It will be too much to expect much from these quarters. One needs only to look at Kenya, where the African Union (AU) observer mission gave a clean bill of health to the 2017 election which were later annulled. Following the trickling of congratulatory messages, it is going to be a tall-order to pursue the narrative that the Zimbabwean election was ‘rigged’.