The tension between what is and what ought to be

This week I spoke at a virtual event hosted by the Institute for Democracy which is based at the University of Cape Town. I was on a panel of speakers discussing the role of the military in the political and electoral processes in Zimbabwe, marking the occasion of the military coup that toppled the country’s then long-serving leader, President Mugabe. 

In my presentation, I outlined the legal framework that governs Zimbabwe’s military and civilian government and demonstrated how the coup upset the constitutional order. I pointed out that the Constitution represents what ought to be in that relationship but that the reality is at odds with this legal position. This divergence between the legal order and realpolitik exposes the weaknesses of the fictional character of law whose strengths depend on the faithfulness of its believers. When its enforcers and guardians cease to believe in it, it becomes a deceptive façade. 

For example, section 208 of the Constitution prohibits any sector of the security services or its members from acting in a partisan manner; furthering or prejudicing the interests of any political party or cause; and from being active members or officers of any political party. However, this is generally disregarded and on occasions, senior security services elites have openly attended ZANU PF’s political gatherings while the application of the law is so blatantly selective that it leaves little doubt whatsoever which side the security services favour. 

The problem is not that the law does not exist. It is that those who are sworn to protect and uphold it simply give it short shrift when it stands in their way. The military coup itself was an egregious violation of the constitutional order setting a precedent whose shadow hovers around the nation-state and will do so for some time unless there is a fundamental shift. At the UCT event, I posed several questions which might help in the examination of the role of the military as Zimbabwe heads towards the next elections in 2023.

Militarization and Judicialization of Politics

A discussion on the role of the military must first acknowledge that there was a military coup in November 2017, notwithstanding various attempts designed to sanitize it. This recognition means political actors know exactly what they are dealing with. Attempts at sanitization of the military coup included the generation of a discourse that framed the coup as a “military-assisted transition”. It was presented as a political transition in which the military had only played a minimal part, and yet it was the principal actor and steerer of events. This discourse sought to make the military coup acceptable to the region and the international community, both of which express hostility to coups in their official pronouncements. This discourse was promoted by authors of the coup, the ruling party and opposition politicians, local and international media, some intellectuals, and parts of the regional and international community.

The other method of sanitization was the judicialization of the political dispute over the succession question in ZANU PF. The coup was a method deployed to resolve that purely political question and as we shall observe represented the militarization of politics. It is pertinent to explain these terms. 

Judicialization of politics occurs when there is a heavy reliance on courts and judges to resolve important moral and public policy questions, and political disputes[1]. In this case, the usurpation of power from President Mugabe by the military, a quintessentially political question that was being fought over by politicians, was transferred to the province of the judiciary. There, judges of the High Court produced orders that firstly, justified the military’s conduct as constitutional and secondly, nullified the sacking of Mnangagwa from his role as Vice President. 

The purpose of judicializing these political questions was to lend a veneer of legality to a coup that had upset the political and legal order upon which the nation-state is constructed. The political question of Mugabe’s succession should have been resolved politically, without the intervention of the military. Courts are in an invidious position when coups occur because resistance threatens their very existence while supporting the coup also undermines their authority. In the process, when they make pronouncements, they often go with the tide. Rhodesia did so when Smith carried out a constitutional coup in 1965, unilaterally declaring independence. They did so again in November 2017. 

These methods worked well to the extent that they prevented condemnation of the military coup. Both SADC and the AU did nothing to challenge the coup, despite their long-held positions against military coups. The international community largely welcomed the coup regime with a generous dose of misplaced enthusiasm. But none of this could cover the fact that the outcome of the coup was essentially a military-backed regime. It was no longer a government based merely on civilian political consent but was fortified by the coercive force of the military.

An electoral veneer over the coup

The scheduled elections in 2018 were never going to change the nature of the regime with its military core. Our analysis at the BSR months soon after the coup was that the 2018 elections were an exercise in rubber-stamping a pre-determined outcome. This, we reasoned, was because the military generals had not risked their careers and lives by carrying out a coup to give away power within a few months. Therefore, it was not surprising that the 2018 elections produced a controversial outcome that favoured the incumbent who had been installed by the military.

The violence by the military on 1 August 2018, which led to the death of 6 civilians and injuries to 35 others was confirmation of the heavy military hand in the process of choosing the leadership. We have referred to the judicialization of the political question. The coup confirmed another process in motion: the militarization of Zimbabwean politics.

As we have already observed, the militarization of politics is when political questions are taken out of the province of civilian politics and brought into the province of the military. The succession question was a political question that was being fought politically between two factions of ZANU PF, Lacoste, and G40 until the military intervened to rescue the former. Arguably, G40 was winning the political battle until the matter was violently taken into the province of the military. With the shot of the gun, the political question had become militarized. This militarization of politics and the state has continued with politicians in ZANU PF essentially ceding space to the military.    

It is worth noting at this stage that the judicialization of politics has gathered pace since the coup, with numerous political disputes being taken to the province of the judiciary for resolution, often with deeply unsatisfactory outcomes. This partly reflects the fact that judges are being asked to resolve political questions that they are ill-equipped to deal with. This is because they are either not sufficiently trained to resolve political questions or they are invariably in a weaker position whenever they are dealing with political questions. They almost always defer to the most powerful political actor, usually the ruling party.

This also implicates another important process, namely the politicization of the judiciary, where the judiciary is compromised by political forces. The recent constitutional amendments have drastically changed the processes by which senior judges are appointed, taking power from a transparent and accountable process, and handing it to the President. They also extended the Chief Justice’s tenure in office, making him eternally beholden to the President. These changes have led to charges that the judiciary is being politicized.

This important background reminds us of the following: i. that politics in Zimbabwe has become both intensely judicialized and militarized; ii. the current government is essentially a product of the coup. This means that important political questions have been taken out of the province of civilian politics into the arena of the judiciary and the military. Neither the judiciary nor the military has the proper facility nor the legitimacy to satisfactorily resolve these deeply political questions. This in part is a collective failure of politics and its principal agents, namely the politicians and intellectuals in a broad sense.

Questions such as succession or who is the leader of a political party are deeply political questions that ideally should be resolved politically, not by judges or by the military. It is a failure of politics that the principal decision-makers of these political questions are not the people but judges and military generals. This is one of the more dangerous legacies of the coup in November 2017, although the problem has a long history. The coup merely confirmed it.

Having established that Zimbabwe is in the shadow of a military coup and that the current regime is essentially backed by the military, to imagine what might happen in the future, several questions call for examination. These questions centre on the following issues:

Did they make the right decisions?

The first question is whether the military generals who carried out the coup still believe they made the correct decisions in November 2017. The decisions can be broken into 2 parts: the decision to breach the command structure and remove Mugabe and second, the decision to install Mnangagwa as president. They may be convinced that removing Mugabe was the right call, but the decision on Mnangagwa has been severely tested over the last 4 years.

First, Zimbabwe is no better than it was when they carried out the coup. Corruption has flourished, with a coterie of associates and minions around Mnangagwa claiming a lion’s share of the dwindling national cake. When they removed Mugabe, they claimed they were targeting criminals around him. Four years later, it seems they might find more criminals around Mnangagwa than they saw milling around his predecessor.

Second, Zimbabwe remains a pariah state, shunned by Western countries that Mnangagwa was supposed to court. The failure is not because the Western countries were less willing to embrace him (in fact some of them were too eager to embrace him) but because Mnangagwa bungled his chances and never recovered. The country made more progress with international financial institutions and creditors during Patrick Chinamasa’s tenure as Finance Minister than under Mnangagwa’s golden boy, Mthuli Ncube.

Mnangagwa was down and almost out when he was fired by Mugabe on 6 November 2017. The coup rescued him, thanks to the military generals who risked their lives and careers to topple Mugabe. They entrusted Mnangagwa with power partly to cover their tracks and sell the coup to the region and the international community but also believed that he would help the country out of its misery. 4 years later, the economy is in the doldrums and the country is still locked out internationally. Creditors and lenders won’t touch it. It is hard to imagine how the generals would think they made the right choice. 

Are the interests of the military generals still aligned with Mnangagwa’s interests?

As we have observed, the coup alliance was between some senior military generals and the Lacoste faction of ZANU PF. These military elites backed Mnangagwa because they believed that their interests were aligned to the Lacoste faction’s interests. The question is whether these sets of interests are still aligned. The rest of the citizens may be suffering, but if the military elites’ interests are still aligned to Mnangagwa’s interests, that alliance is likely to persist.

Much depends on whether Mnangagwa’s regime is looking after or threatening the military elites’ economic interests. Changes can only be expected if the military elites feel that he no longer represents or protects their interests. In that case, they might look farther afield for other options. Some might even see merit in some elements of the G40 faction. It must be recalled that the military waded into a party-political factional battle in which it chose one faction over the other. Possibilities of new alliances in the future cannot be ruled out.

Was there a pact and has it been breached?

The next question relates to the so-called pact that was made before the coup, between the military generals and Mnangagwa. It is often said that there was a deal that Mnangagwa was to serve a single term, after which he would give way to one of the generals, in this case, Retired General Constantino Guvheya Chiwenga. Whether such a pact exists is, of course, a question of fact. It may well be that it is a political myth that has gained unmerited currency over time. If, however, it is true that there was such a gentleman’s agreement, the insistence by Mnangagwa to run for a second term in 2023 would represent a breach of it.  

It is hard to imagine that the generals went into the arrangement blindly, without extracting some concessions from the politician they rescued from certain political oblivion. Usually, soldiers who carry out military coups take over immediately and declare themselves to be “caretakers” and promise to hand over power to civilians in due course. The Zimbabwean generals could have done that, but they didn’t. They tried to play smart by placing a civilian face in front of them.

However, the generals were playing the long game. Carrying out a coup is an inherently risky business, and no one would do it unless they were guaranteed a chance to take power at some point. Therefore, political deal-making before the coup makes sense. They would remove Mugabe, replace him with a civilian as a placeholder and lie in wait for their chance to take over in the future. Mnangagwa’s single term would provide a “cooling off” period for the military generals, allowing them to take over at some point in the future. In this regard, it might well be said Zimbabwe’s was supposed to be a “long coup”, one in which its authors patiently take their time before assuming the reins. If this pact has been broken, it would not be the first time that political protagonists who go into an uneasy coalition disappoint each other when one refuses to honour their end of the deal. The question concerns the consequences of that breach.

If indeed there is a deal that has been breached, it would mean there is an uneasy relationship between Mnangagwa and his deputy, Chiwenga. Public appearances of unity are meaningless. After all, the men who toppled Mugabe were standing by him and declaring him their candidate for the 2018 elections right until they removed him. This means that the political question of leadership remains unresolved. We have seen attempts to judicialize this political question with a recent challenge by a member of ZANU PF challenging Mnangagwa’s position in ZANU PF. The litigant, Sybeth Musengezi argues that the ascendancy of Mnangagwa to the helm of ZANU PF was marred by gross breaches of the party constitution. This is a political question that is being brought into the arena of the judiciary and it is reflective of the political infighting within ZANU PF.

Chiwenga may well have conceded that he dealt with a more cunning politician and lost. He might accept his fate as that of a man who, having spent a long time with a lady friend without saying a word, ends up fetching water for guests at her wedding. He might also hope that Mnangagwa will not complete his second term if he retains power in 2023. But that would be hope based on naivety. If his ally broke the initial agreement, there is no guarantee that he will let go until the next election. Like his predecessor, Mnangagwa might want to hang on for life.

Is there an alignment of interests within the military?

The next question centres on the internal dynamics within the military. Oft-times, when people speak of the military, it is presented as if the military is a single, united, and cohesive unit. But this is likely to be an over-generalization. A more nuanced assessment might reveal fault-lines within. These fault lines may run on economic and generational lines, but they may be obfuscated by discipline which is often enforced by the use of severe punitive measures.

For example, there may be a divergence between the military elites at the top of the military food chain and the ordinary soldiers at the bottom end. The military coup was led by senior generals. This is unlike many other coups that are often led by junior officers. This is partly because there is usually a misalignment between the interests of the senior officers and their juniors. The seniors are often well-catered for both economically and socially, enjoying the privileges of power, while the juniors have limited access to such privileges. The juniors rebel not only against the politicians but also their superiors in the military.

With Zimbabwe’s military being heavily invested in the economy, one might get the impression that everyone has equal or equitable access to the largesse. But this is not the case, with the juniors often getting the crumbs. Everyone might have participated in the November 2017 coup expecting a brighter future, but like most Zimbabweans in the civilian community, the ordinary soldiers are not seeing any benefits. Instead, they see the politicians they helped and their acolytes and family members hoovering public resources for private benefit. This creates an incendiary scenario.

Generational clash?

The fault-lines may also be generational, with the liberation war generation at the top of the military and the post-liberation war generation in the lower ranks. The senior military elites are still wedded to the liberation war political generation. That war experience is a point of generational interest, which brings the military elites and old politicians together. The liberation war generation is more likely to hold sway, but this does not mean the post-liberation war generation shares the same worldview. However, as the years go by, the liberation war generation in the military is also dwindling, not just by retirement but also by the hand of death.

When all is said and done, the possibility of military dis-cohesion opens countless possibilities regarding the role of the military in the country’s political and electoral processes.  

Conclusion

I began with an assessment of the coup and its consequences. There has increasingly been both a militarisation and judicialization of politics. I also posited that if there was indeed a pact between the military generals and the politicians, then the country is going through what might be called a “long coup” in which the authors of the coup expect to ascend to the helm at some point and enjoy the spoils of their efforts. I then put forward several critical questions that might help to evaluate and predict what the future holds. Do the military elites still believe that they made the correct decisions? Much depends on whether the interests of the military elites remain aligned to the interests of the political elites that they assisted to gain power in the factional war. 

However, there are also possibilities of contradictions and tensions within the military establishment itself as between the military elites and the rank and file and between the liberation war generation and the post-liberation war generation. 

The major challenge is that political questions are not being solved politically, itself a failure of politics. Instead, the politicians have outsourced them to the arena of the judiciary and the military, both of which are ill-equipped to deal with them in a manner that confers legitimacy. 

An important structural objective is to disengage the judiciary and the military from resolving political questions so that they are left to the province of politics. This might be difficult considering the role of the liberation war generation in the upper ranks of the military elites as they regard themselves as “stockholders” in the nation. This is a legacy of the war that may wane with the passage of time and the inevitable depletion of the generation. But the country is in so much trouble that waiting for the hand of nature to resolve one of its central political challenges is gross irresponsibility on the part of politicians. 

WaMagaisa

wamagaisa@yahoo.co.uk

atm@kent.ac.uk

[1] For more on this please see Ran Hirschl, The Judicialization of Politics in The Oxford Handbook of Political Science  edited by Robert E. Goodin

The post Big Saturday Read: The problem of militarization and judicialization of Zimbabwean politics appeared first on Big Saturday Read.

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