(Last Updated on November 10, 2020 by GERALD NCUBE)
When the COVID19 pandemic hit the world early this year, several political commentators warned that it would present opportunities to authoritarian rulers to increase repression in their countries. It was inevitable that fundamental rights and freedoms would suffer as restrictions would be imposed to deal with the public health emergency. The mechanism of national lockdowns entails such limitations on rights and freedoms even in the most open democracies.
True to the predictions, authoritarian regimes have taken full advantage of the pandemic. They have gone further to impose unreasonable restrictions in their countries. In Zimbabwe, the regime has curtailed the right to vote. There are several by-elections which are mandated by the Constitution. They should be held within 90 days of a vacancy arising in a constituency. It is a mandatory constitutional requirement.
In early September, the elections management body issued a policy document outlining plans for COVID19 compliant elections. Shortly afterwards, the regime issued a statutory instrument suspending elections, citing the COVID19 pandemic. It was a clear reversal of the election commission’s position. The Zimbabwe Election Commission quickly complied with the decree despite its illegality, going back on its position.
The Zimbabwean regime is behaving as if it is the only country that is facing the COVID19 pandemic. Yet it is becoming the exception in the region. Plenty of other countries are going ahead with elections. Among African peers, Malawi, Burundi, Guinea, and Tanzania have all held elections during the pandemic. Namibia is due to hold regional council and local authority elections on 25 November. The elections authority has devised a COVID19 Mitigation Strategy. This is what ZEC had done before it was bullied into submission by the regime.
Another neighbour, South Africa is also going ahead with municipal ward by-elections on 11 November. Zimbabwe’s southern neighbour has had far greater cases of the COVID19 pandemic, but it is going ahead with electoral processes having worked on risk-mitigation mechanisms considering the pandemic. ZEC was simply doing what its peers were doing to prepare for elections during a pandemic. However, the Mnangagwa regime would have none of it.
The great irony is that this week President Mnangagwa flew to Tanzania to attend the inauguration of President Magufuli whose re-election took place during the pandemic. A man who has banned elections in his home does not see the irony of going to congratulate another man who has held an election in his home. It might appear as if the hypocrisy eludes Mnangagwa but on the contrary, he knows exactly what he is doing. He simply does not care for the rights and freedoms of the citizens and elections for him are a nuisance that can be avoided if he does not want them.
The reason for suspending elections is because the Mnangagwa regime has no incentive to hold them. The bulk of the by-elections are in opposition strongholds where ZANU PF has very little chance of success. More significantly, Mnangagwa does not want to disturb the false narrative that places Thokozani Khupe and her party as the legitimate opposition. Khupe returned to Parliament via the backdoor following the controversial expulsion of MDC Alliance members. Holding these by-elections would lead to a mass return of MDC Alliance MPs into Parliament because the surrogate opposition led by Khupe has no chance of winning them. A heavy defeat will debunk Khupe’s fraudulent claim to be leader of the legitimate opposition.
The strategy of the authoritarian regime has been to lock out and exclude the legitimate opposition led by Nelson Chamisa while promoting Khupe’s outfit. By-elections in MDC Alliance strongholds are therefore not in the regime’s interests. The regime has found false cover in the COVID19 pandemic to avoid these by-elections. Therefore, the regime contradicts itself by relaxing restrictions in other sectors while maintaining tight restrictions when it comes to elections. It is behaving like the authoritarian regime that it is. It is averse to competitive elections.
Persecution of Hopewell Chin’ono
This week, the regime once again arrested prominent journalist Hopewell Chin’ono. A group comprising police officers and officers from the Office of the President took him from his home early evening on Tuesday 3 November. He was detained at Harare Central Police Station. The initial charges against Chin’ono were that he had allegedly committed contempt of court through a tweet. Chin’ono had made a comment on a letter which was written by judges raising several allegations against Chief Justice Malaba authoritarian style of leadership of the judiciary.
Later another charge was added, namely that Chin’ono had obstructed the course of justice. This was in relation to a tweet in which Chin’ono had commented on how the state was handling the gold smuggling case involving a high-profile PEP, Henrietta Rushwaya. Ms Rushwaya was caught red-handed at the airport attempting to smuggle 6kgs of gold to Dubai. Chin’ono tweeted that his sources at the National Prosecuting Authority (NPA) had told him that the state had made a deal with Rushwaya, in which the state would consent to bail.
Chin’ono’s tweet was accurate, because that is precisely what happened. State prosecutors bizarrely consented to lax bail conditions in a matter where some resistance to bail would have been expected. As it happened, the magistrate stood in the way of the state’s consent thwarting the plan to grant the beleaguered Ms Rushwaya an easy way out of state custody.
Incredibly, the state is now charging Chin’ono with obstructing the course of justice. The man was only doing what journalists do: reporting news backed by sources. It is trite that a journalist’s sources are confidential. Section 61(2) of the Constitution makes it clear that “Every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists’ sources of information”. The state cannot force Chin’ono to reveal his sources. If journalists were charged with corruption because they have sourced information from confidential sources with the state, every decent journalist would be in jail. To insinuate corruption on the part of Chin’ono as the regime is doing is absurd.
In any event, what Chin’ono reported turned out to be true. If anything, he should have been applauded for the scoop. Instead, the regime has locked him up. They should be investigating why Ms Rushwaya was being treated leniently by the prosecutors.
Regime’s hypocrisy again
The regime’s spokesperson, Nick Mangwana attempted a lame justification of the arrest of Chin’ono by saying that the state was protecting the “integrity of the justice administration system”. “In a democracy there has to be a balance between freedom of speech and protecting the integrity of a justice administration system”, he pontificated. “Unrestrained disrespect to the court can collapse a justice delivery system”, he added. For Mangwana, Chin’ono was disrespecting the court and deserved to be arrested. But Mangwana, like his boss, suffers double standards.
Just a couple of days earlier, Mangwana had issued a press statement exonerating President Mnangagwa’s wife Auxilia and their son Collins who were named by witnesses in the gold smuggling scandal. Before that, the police had also issued a similar statement. Both statements were issued after Mrs Mnangagwa issued her own statement on Facebook, challenging the police to issue a statement clearing her and her son’s names following the allegations. A witness in the case against Ms Rushwaya, one Gift Karanda had allegedly told authorities that the gold in question belonged to Mrs Mnangagwa and her son. Mrs Mnangagwa took umbrage at this and denied any involvement, hence the demand that the police exonerate her.
The fact that the police duly obliged smacked of submission to the demands of Mrs Mnangagwa. The government’s intervention through Mangwana was also unbecoming considering that the matter was already before the courts. It is not for Mrs Mnangagwa to tell the police what to do. If she was named as a suspect, the police should apply the rules that it applies to every citizen. After all, every other named person was arrested and questioned by the police. They were never given the chance to demand that the police should clear their names.
This is why it is hypocritical of the regime to accuse Chin’ono of tampering with the administration of justice when the wife of the President has so openly interfered with the investigations to the point of commandeering the police to issue a statement exonerating her and her son. The correct approach would have been for her as First Lady to cooperate with the investigating authorities, leaving it to them to issue statements based on their findings.
As things stand, the credibility of the entire investigation into the attempted gold smuggling has become severely compromised. Mrs Mnangagwa’s tantrums led observers to think that the protestations of innocence were designed to conceal incriminating information. Whatever happens in the end, a heavy cloud of doubt has been left hanging over the matter and there will always be a feeling that there is more to it than meets the eye.
“I took the wrong bag” – Scandal in Harare
The gold smuggling scandal took a bizarre twist this week when Ms Rushwaya claimed that she had taken the wrong bag when she left home for the airport. Readers will recall that Ms Rushwaya was nabbed at Robert Mugabe International Airport on 26 October with gold bars worth more than US$330,000 in her hand luggage. At the time, her story was that the gold belonged to one Ali Mohammed who owns a company called Ali Japan786. However, she did not have the relevant documentation to back the legitimacy of the gold export. One Gift Karanda had intervened with a claim that the precious consignment belonged to Mrs Mnangagwa and her son, a move that drew the wrath of the President’s wife.
Bereft of explanations for her circumstance and desperate for a way out, Ms Rushwaya decided to go to the basics, even if it sounded absurd. I took the wrong bag, she told the court, implying that having the illegal cargo at the airport was a mistake and she did not intend to smuggle the gold. Ms Rushwaya is playing the long game. Intention is an important element in criminal offences, and she is building a defence that she did not intend to be in possession of the gold but that it was a mistake. Even if that does not absolve her, the hope is that it might be useful in mitigation. But this is hard to reconcile with earlier explanations which implicated fellow accused like Ali Mohammed.
The conflicting explanations do not help her credibility as a witness, let alone the credibility of her story. However, the dramatic changes to the story also demonstrate why, although much maligned as a profession, lawyers’ matter. There is a good reason why the law provides for the right of an accused or detained person to consult his or her lawyers before they answer questions from the police. This is also why the law provides for the right against self-incrimination. In other words, a person is under no duty to speak or say things that might incriminate them in a crime. You can choose to remain silent.
The problem is that people who are so used to the protection of godfathers do not respect the law and the protection that it could give them. If Ms Rushwaya had not tried to use political muscle by appealing to political godfathers she could have remained silent until her lawyers were present to help her out of the hole. But she thought political godfathers could assist her. Investigative newspaper Newshawks reports that she tried frantically to call upon political godfathers and godmothers, including Mrs Mnangagwa when she was busted at the airport.
Other reports suggest there were attempts to bribe law enforcement officers. She chose the rule of man as opposed to the rule of law and while this may have worked very well in the past, on this occasion it went pear-shaped. The law might well have saved her all the trouble is she had used it well. She could have chosen to remain silent as the law allows and waited for her lawyer to be properly advised what to say or not say. Now that things have gone wrong, none of the political godfathers and godmothers want anything to do with her. It is looking increasingly likely that she will have to take one for the team.
However, if Ms Rushwaya goes down, there will be many more who were part of this syndicate because it is clear she was not acting alone. NewsHawks reports that the gold that she was found with was 99,99% pure, and that the one entity that has the capacity to refine gold to those high levels is Fidelity Printers and Refiners Ltd, which is owned by the central bank. Even if there were other refiners of that quality, they would probably be owned by large mining companies. This raises questions regarding the source of the gold and the high level of the characters involved. Theirs was no ordinary attempted heist.
US Elections – Great test for democracy
Much of the world has been glued to television, computer and smartphone screens this week, following the democratic spectacle that is the US presidential elections. Whatever the weaknesses, and there are several, few countries have the ability to put on a show of the democratic process like the US. Fewer still have the pulling power to attract billions around the world to that democratic show.
That everyone wherever they are around the world can follow the process indicates the openness and transparency made possible by an active and free media which invests huge amount of resources into this fundamental democratic process. Social media has added a new dimension to the coverage, allowing more to follow the process but also to offer their opinions. It is by no means perfect, but as Winston Churchill said, “Democracy is the worst form of government except for all those other forms that have been tried from time to time”. It has been a grueling but fascinating show.
The race to the White House has been tight, with the two leading contenders going neck to neck since election day. At the time of writing, which is four days later, there is no clear winner, although it appears the challenger, former Vice President Joe Biden has the edge. It is increasingly likely that there will be legal battles ahead with the incumbent, President Trump raising several complaints.
The sight of an incumbent railing incessantly against the electoral system has surprised many observers especially from countries where the sitting President often wields a huge amount of power over the electoral system. In those countries, it is the opposition that traditionally complains of election rigging, not the incumbent. This is an indication of a key distinction where the president does not have control of the political referees. Democracy is weaker in countries where political referees are controlled by the President because they always bend to his or her will. That is why we saw that in Zimbabwe, the electoral commission could not even challenge the government when its plans to hold by-elections under a new COVID19-election policy were reversed.
This is why strong institutions matter in democratic systems. The US election has so far demonstrated that even in the face of a strong-willed leader, it is strong democratic institutions that ultimately safeguard democracy. This is the reason why some countries refer to them as “institutions supporting democracy”. These institutions represent what one of America’s Founding Fathers, James Madison referred to as the auxiliary mechanisms which act as constraints on governmental power. It is these auxiliary mechanisms that form the essence of constitutionalism or limited government.
The value of these institutions is that they usually (but not always) transcend political affiliation and the political allegiances of those who run them. I add the qualification because there are serious concerns over voter suppression mechanisms, which are used to exclude voters. However, it has been impressive that in the presidential election at least, state administrations have run the processes without letting their political affiliations stand in the way. Elections in the US are decentralised, which means they are run on a state basis, with each state using its own rules. The implication is that elections are run by state administrations that could either be Republican or Democrat. One might think these state administrations would take partisan approaches, favouring their preferred presidential candidate. On the contrary, they have been fair and non-partisan, even in the battleground states where the stakes have been exceedingly high.
In this regard, I was trying to imagine a situation where Zimbabwean elections are run on a decentralised basis, with provincial elections run and controlled by either ZANU PF or the MDC Alliance administrations. Given the history of election rigging, it is hard to imagine that these administrations would be fair to candidates of the other party. After all, the great complaint about the Zimbabwe Electoral Commission is that it is too biased in favour of ZANU PF. However, perhaps the advantage of the decentralised system is that the parties balance each other across the different electoral spaces that they control. Therefore, since each party controls some states, both parties have an incentive to play fair to each other because if they do not do that, the other party will simply respond in kind. By contrast, with a centralised authority, if it is controlled by one party, it has no incentive to play fair because it controls the entire game.
Nevertheless, credit must go to those who oversee these institutions. They are showing respect for fair play, the most important of all rules of competition. They have not allowed their institutions to bend towards their political parties or the whims of the incumbent. A Republican candidate can win in a state that is run by Democrats and likewise a Democrat can win in a state that is controlled by Republicans.
However, there are also key institutions whose value is that they remain in the background. They might be forgotten because they are not visible on the electoral landscape. They are not trying to influence the outcome of the election by flexing their muscle. This is the difference between the military establishments in different countries. Where the military is deeply invested in politics, it has a visible and influential role in the determination of political outcomes. It is partly this interference by the Zimbabwean military which has affected the legitimacy of political outcomes, especially since the early 2000s. Our elections need curing from the scourge of military interference. The security institutions must return to serve the state, not the political party as has been the case in Zimbabwe. If our institutions are invested in politics, the outcomes of our political processes will always be bereft of legitimacy.
There will be time enough to analyse the US elections. There are things that other democracies can learn from the US just as there are things that the US could learn from other democracies. But this point about strong political institutions needed to be made. The jury is still out though because there are other important institutions, such as the Supreme Court, that may yet be called into action.
So far strong institutions have served as bulwarks for democracy and if that trend continues, it will give hope to most pro-democracy advocates and progressives around the world. This is even more important in a period when commentators have raised concerns over backsliding of democracy and the rise of populism. In that sense the US election is one of the great tests for democracy for a long time, hence the worldwide interest in the current process. Key contender Vice President Joe Biden’s dubbed it a fight for the soul of the nation. For democracy advocates the election has been a fight for the soul of democracy.