DEMOCRACY is hard work. It works and manifests for the vigilant. To those who slumber, they realise how soon and fast it can slither, for autocracy comes much more naturally to humans than democracy.
That is the danger of slumber in democracy. Humans, so long as they are human, will always be self-serving, will always be intoxicated with power, and will always pursue self over collective.
This perhaps is better illustrated by Lord Acton’s statement that: “The danger is not that a particular class is unfit to govern. Every class is unfit to govern.”
Democracy itselfas a concept emergent from the ancient Greek city-states was developed to deal with the accumulation and misuse of power by humans, who claimed super stature that they were ordained to rule by God and royal blood.
So, to guard against this, safeguards have been created to make democracy work, where the governed decide who governs over them, where disputes are dealt with impartially, and the rule of law balances all in stature.
The thesis is that it is better to have the rule of systems, institutions and laws, as opposed to the impure rule of people.
Separation of powers
In Zimbabwe, ourtrias politica constitutional design establishes three distinct yet complimentary arms of governments — the executive, the legislature and the judiciary.
The latter,in particular,is enjoyed to display fidelity to the law and the law alone. Then we have institutions that are created specifically to support constitutionaldemocracy — and these are popularly known as Chapter 12 institutions, named after the chapter inwhich they are found in the supreme law, among these are the Zimbabwe Electoral Commission (Zec), the Zimbabwe Human RightsCommission (ZHRC) and the National Peace and Reconciliation Commission (NPRC) — whose fidelity must be to the law and to the law alone.
They are independent of the state, of government, or of any grouping. This architecture is carefully crafted to provide necessary checks and balances for democracy to work.
For democracy to work, each arm must do its work and do it properly and diligently. Those meant to check these institutions must equally do their work effectively and efficiently. The work of nation-building and making a nation work, is not one left to individuals, but to institutions, for “individualities may form communities but it is institutions alone that can create a nation”, as Benjamin Disraeli cautions.
Challenges abound once incestuous relationships among and between arms and institutions start tomanifest. So, you have an executive that appoints and dismisses judges (just this week President Emmerson Mnangagwa pulled an interesting one, gazetting Proclamation 3 of 2022 and setting up a tribunal to inquire into the question of removal from office of Judge Edith Mushore,allegedly from absenting herself fromwork — curiously one of the three High Court judges who ruled in May 2021 against the President’s controversial extension of Chief Justice Luke Malaba’s tenure).
In Parliament, MPs are whipped, and they do not dare cross the party line. In the structures of the police, the prosecution and the anti-corruption establishment, there is a system and network of patronage that threatens to make the system a charade — smokescreen structures and institutions that amounts to performing democracy, as David Landau calls it.
Zec is meant to be an independent management body of elections. Elections are so central to democracy in that they constitute the means through which the governed express their consent to the government.
Yet electoral democracy in its true and pure substance and practice has been elusive in Zimbabwe. The credibility of Zec is heavily questioned.
The credibility of institutions meant to scaffold the credibility, freeness and fairness of elections is similarly questioned.
The result is weakened democratic practice and substance. The reality is that democracy is compromised by war, anarchy and constitutional overthrow, just as much as it is compromised by incestuous relationships between and among those meant to provide checks and balances on each other.
Mutilatinginstitutions of democracy has repercussions even to the mutilators. When former president Robert Mugabe built a security state around him and enabled a deep state to be established in Zimbabwe, he thought he was securing himself.
It is that deep state that toppled him, complete with High Court orders declaring his dismissal of Emerson Mnangagwa from the office of Vice-President as a nullity and proclaiming military deployment and intervention as constitutional!
Power is slippery; it is temporary; it exchanges hands — and mutilators of democracy ought to be on notice.
With manipulated elections and deliberately undermining the credibility and efficacy of Zec and its supportinginstitutions, it is very much possible to maintain a shell of democracy as a misleading veneer, when in fact what we have is an autocratic and oligarchic system, sanitised by sham elections.
The grave reality is this: the danger is that when citizens increasingly perceive elections to be ineffective in manifesting people’s wishes, this opens room for unconstitutional change of government, which has the potential to lead to failed governance.
Democratic means of expression of consent by the governed must not be closed. The risks associated with failed elections are grave; too grave to ignore.
When the people were fed up with monarchy, autocracy and oligarchy, they brought in democracy by revolution. Because democracy was never the natural order of things, left alone it wears, gets exhausted and recedes. It is then up to the people, indeed the task of the people, to keep it alive.
The most important institutionsafeguarding democracy is the citizens. Aslawyers, we say that the law is supreme. That is correct, but that is not the whole truth. The full truth is that the people are more supreme, and the ultimate supreme.
The people can decide when they no longer want to maintain their consent to a government. The people can decide when a system no longer works for them, nor serves their interests.
Just as the people give unto themselves a constitution, the people can revise that constitution and even replace it with another – so long as this is done in the collective of supremacy of the people — and not driven by self-serving individuals or pockets of individuals.
It is fascinating to note that in the ZimbabweanConstitution, at the start of Chapters 5, 6 and 8, dealing with the Executive, Legislature and Judiciaryrespectively, it starts by saying that all executive, legislature and judicial power derives from the people, as the case may be. This is quite a unique feature of the Zimbabwean constitution — powerful in effect.
As they say, eternal vigilance is the price for freedom. In a democracy, the institution that must work hardest to preserve democracy are the people — the citizens. What does vigilance of the people look like?
Vigilance means not placing trust in the benevolence of those in whose hands we have concentrated power, orplacingtrust in the self-effectuality of libertarian ideals, or appealing to liberal senses of those in power.
The people must draw the line. It does appear, at least for countries like Zimbabwe that democracy is at that perilous state where people power is called for once again, to correct that which has gone wrong and insist in the rigours of the institutions they have structured as guardians of their democracy.
Those in power, those running institutions, like it when apathy abounds. This means less scrutiny, less accountability and more hold to power. But that is how democracies die.
- Kika is a human rights and constitutional lawyer