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Revitalising institutions of the state

Alex Tawanda Magaisa

IN last week’s issue the Zimbabwe Independent published two powerful and interesting articles. The first, by Beatrice Mtetwa focussed on the Attorney General (

AG)’s office in which she argued that in the last few years the office has been complicit in the violation of human rights in Zimbabwe.

The second, by Denford Magora assessed the political landscape and argued that the retention of power by Zanu PF does not necessarily signify its strengths but instead the weakness of the opposition MDC party.

These articles prompted me to engage and make a contribution on this interesting legal/political discourse. Although addressing different aspects on the political landscape, the two contributions are bound by one theme that I have previously discussed in this paper regarding the corporate community, that is, the persistence of a regressive norm culture among the significant stakeholders.

Mtetwa correctly identifies the constitutional basis of the office of the AG and argues that it has largely failed to fulfil its constitutional mandate. Indeed despite a plethora of laws and actions that appear to violate fundamental freedoms, it would seem that the AG’s office has not adequately performed its role as the key adviser to government. As a practising lawyer who is closely involved in the human rights litigation arena, Mtetwa is well placed to share the lawyer’s professional experience that, I gather from her tone, is one of general frustration about the mechanics of the present legal system.

The question that must be asked is why, despite the existence of extensive constitutional powers, has the office of the AG failed to meet the legitimate expectations of citizens?

Indeed, if the legal powers are available but there is no enforcement the problem does not lie on the law’s doorstep, but on the conduct and behaviour of the officers at the AG’s chambers as determined by a normative culture that promotes lethargy and inaction. One must explore further and question whether officers operate in an environment in which they are capable of making independent and fair decisions. It may be that the problem is that the AG’s office has been compromised in the same way that parts of the judiciary have lost their independence. If that is the case, the new AG is faced with the following conundrum: whether to allow the persistence of this regressive norm culture or to initiate a new culture in which the laws and powers available to his office are applied in order to promote fairness and legality in the system. His ability to manoeuvre and assert his independence will determine whether he can effect these changes. It is an opportunity to recreate the image of the office and hopefully attract high quality candidates to perform a role that is vital in law enforcement.

A chief element central to Mtetwa’s concern and fundamental to effecting the change in the norms is the principle of the rule of law. Although widely used on the Zimbabwean political landscape, this concept is little understood and to be sure, hard to define. In simple terms, it entails that state power may only be exercised in accordance with laws properly enacted in accordance with established procedures. Principally, it is aimed at safe-guarding citizens against the arbitrary application of power. It is characterised by among others such principles as the supremacy of the law, restrictions on the use of discretionary power, principle of equality, etc.

Critics point to the limitation that while it focuses on the importance of following procedures in enacting and applying laws, it does nothing to properly define the content of the actual laws. Thus a dictatorial regime can, as most often do, properly enact laws regardless of their inherent injustice and still claim to be governing in terms of the rule of law.

Nonetheless, this gap is often covered by the existence, in most constitutional democracies, of the Bill of Rights in the constitution, which is the supreme law of the land. This enshrines the basic and fundamental rights of citizens and serves as a standard against which the content of the laws is measured. Thus the rule of law and the Bill of Rights ought to be applied together if law- making and application is to comply with generally accepted standards. In my view, that is where the AG’s office has a crucial role — to judge and advise not only whether the state is complying with procedures of law enactment in parliament but also whether those laws are in compliance with the Bill of Rights. To do otherwise would be tantamount to an abdication of the constitutional mandate but also a violation of the ethics of the legal professional. Ultimately, Mtetwa echoes the hopeful sentiments of many members of the legal profession, by which they appeal to the professional in Sobusa Gula-Ndebele and hope that perhaps at last the respectable office of the AG can regain its status as it was known for many years after Independence. We trust that it is not misplaced hope.

Magora is a regular contributor whose pieces I often look forward to reading, not necessarily because I agree with his ideas, but for his forthright and independent approach in the expression of his views. He argues that Zanu PF is mistaken to believe that the MDC will fade because its existence was necessitated by the former’s failure to deliver on its promises. When he compares the two major political parties he concludes that they offer no viable choice. I share Magora’s view that the weakness of either party should not be considered as the strength of the other. This is the mistake that has been made in many African countries struggling for democracy — simply believing that a change in personnel is the harbinger of the good times. As they discovered in Malawi post-Banda, Zambia post-Kaunda and presently in Kenya post-Moi, it is the ability of the leadership and its commitment to the people’s will that makes a difference, not the change of leadership.

Again we return to the issue of the norm culture in government. Magora correctly identifies that one of the major problems has been the failure of the president’s lieutenants to perform in office. One may also add that the failure to change these non-performing ministers is also an additional problem. Why then do ministers continue in office even if they fail to discharge their duties and indeed when some make false public statements and promises to the electorate? Why have we allowed a culture of corruption and self-aggrandisement? It seems to me that merit and performance are not the chief criteria but rather the politics of seniority and patronage. It is necessary to move beyond that phase and utilise the collective ideas and experience that the country has nurtured in both the public and private sector over the years. Ministers ought to know that a cabinet post is not a job for life and they are not irreplaceable. Unless the culture changes and performance is made paramount, Zimbabwe will continue to spiral downwards.

At this point then one needs to consider whether the MDC itself has demonstrated its commitment to fight this culture. In other words, does the behaviour of the leadership demonstrate that they will not do exactly the same things that Zanu PF is being accused of today? So much focus of the pro-opposition movement and sympathetic press has been on the ruling party that one wonders whether, as an organisation the MDC and other political parties are totally free of the same handicaps. It is important to be careful and to be vigilant towards the opposition as towards the ruling party, otherwise as soon as they ascend to the echelons of power, the country will have the same animal, as the Zambians, Malawians, etc later discovered.

One weakness of democratic movements is that opposition parties are formed with the immediate goal of winning an upcoming election and when they fail, they often lose momentum because they have short-term strategies. I have always argued that parties like the MDC are in for a long fight — and when they decide to engage in the politics of the state, they should expect the possibility that they may remain in opposition for quite a while. The experience of the former opposition (now in leadership) in Ghana, Kenya, etc demonstrates that victory does not often come at the first attempt, no matter how well the signs might portray.

The question therefore is whether, despite the initial set-backs, the opposition is prepared and able to remain a viable political entity. Although it may be frustrating, it also gives the electorate ample opportunity to judge the viability of the persons that purport to represent them. Conversely, it is also an opportunity for the MDC to demonstrate its credentials for the long term. I would disagree with Magora on the assertion that the MDC will remain in place as long as Zanu PF fails to deliver because the viability and longevity of the MDC is not dependent on Zanu PF’s failures but on its own ability to survive the rigours of political organisation.

The great tests for the MDC leadership are whether the party can retain the trust and confidence of the electorate or whether their popularity was simply based on a temporary wave of discontent among the public. Simultaneously, it offers an opportunity for Zanu PF to revitalise itself, provided that it has the political will, and can demonstrate that it can deliver after all. In the long term, Zimbabwe will need both Zanu PF and the MDC or their equivalents, because the death of one may signal another descent into one-party dictatorship.

*Alex Tawanda Magaisa is Baker & McKenzie lecturer in Corporate & Commercial Law at the University of Nottingham. Contact: alex.magaisa@nottingham.ac.uk

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