Counting The Costs Of Electoral Impunity In Africa

 By Chidi Odinkalu

Towards the end of 2022, as his country began preparations towards general elections scheduled to take place in the penultimate week of August 2023, Zimbabwe’s president, Emmerson Mnangagwa, contracted an unusual bout of generosity denominated in United States Dollars. First he disbursed US$500,000 to his ministers, comprising 20 cabinet ministers, 13 deputy ministers, and nine provincial ministers supposedly as housing loans. Next, he doled out US$350,000 to directors of Zimbabwe’s Central Intelligence Organisation, CIO. The 270 members of parliament – both elected and nominated – each received $40,000. 

*Museveni and Mnangagwa

 As Zimbabwe went to the polls on August 23, it was impossible to escape the feeling that the president had bought and paid for another term in office. In locations known to be sympathetic to the opposition, mostly in the urban areas, voting materials failed to materialise, mysteriously showing up instead in very remote rural areas, thought to be sympathetic to the ruling ZANU-PF party of President Mnangagwa.

To manage the resulting uproar, the president decreed an extension of voting into the following day, the 24th. The damage had been done. In all major strongholds of the opposition, it seemed clear that the government and its hand-picked Zimbabwe Electoral Commission had succeeded in suppressing turnout among voters not sympathetic to them.

With the ballot degenerating into a farcical embarrassment, the ruling party chose to kill all forms of independent monitoring of the election. On election day, they arrested 41 independent election observers deployed by the Zimbabwe Election Support Network, ZESN, and the Election Resource Centre, ERC, in an act calculated to intimidate and frighten independent civic monitoring of the election-related abuses. A release issued by the police on election day accused the detained observers of being in possession of such dangerous weapons as “93 smart cellphones, 38 laptops, two smart watches, two modems, one WiFi router, one external hard-drive, Nokia feature phone (Kambudzi), one printer, 1 x 24 port switch, various computer chargers, power back-up unit and headphones.” The design was not difficult to read.

President Mnangagwa has been in government since Zimbabwe became independent in 1980. In 2017, he emerged at the head of the government after masterminding the ouster in a coup of Robert Mugabe, the ruler who had led the country since independence and whom he had served as Vice-President. In 2018, Mnangagwa won a disputed mandate in his own right as president. In this ballot in 2023, he sought a renewal of that mandate. 

But all indications were that he was not interested in giving the people of Zimbabwe a choice over the outcome. It seemed clear even before the first ballots were cast that it “was unlikely the ruling ZANU-PF party would allow any loosening of its 43-year grip on power”. Most informed observers expected that whenever the ZEC chooses to announce the results, it will award enough numbers to President Mnangagwa to declare him “winner” in a first ballot. That is exactly what eventuated as this column went to press 48 hours after the ballot as this column went to press.

 Zimbabwe is only the latest in a succession of African countries where elections increasingly have nothing to do with the will of the people. In Sierra Leone, which voted in June, the electoral commission allocated numbers which seemed designed to ensure a pre-determined outcome on the first ballot, promising only to publish disaggregated results “in due course”. That has yet to happen. Nigeria’s elections, which occurred in February 2023 were marred by credible claims of high level partisanship by the election management body which has increasingly become devoid of credibility. They remain mired in legal challenges, which are unlikely to be settled before the end of the year. 

  President Museveni’s violent re-election in Uganda’s 2021 elections remain pending in litigation before the East African Court of Justice in Arusha. In June, the African Court on Human and Peoples’ Rights, also in Arusha, ordered Tanzania to desist from the practice of using government-appointed district officers to rig elections for the ruling Chama Cha Mapinduzi, CCM. This is significant because it is the first time a regional court in Africa is wading into the manipulation of elections by ruling parties across the continent. 

  Even regional election observers are no longer safe from the whiff of being compromised. In Nigeria’s February 2023 elections, the ostentatiously named West African Elders Forum, WAEF, deployed what it called an Election Mediation Team led by John Mahama, Ghana’s former President. But it was not secret at that time that Mahama was in the running to become the candidate for the opposition National Democratic Congress, NDC, in Ghana’s presidential election due in 2024. His presence at the head of a significant election intervention team in Nigeria was either a calculated piece of mischief or an effort to ingratiate himself with the winners in Nigeria in order to blunt any intention on their part to support the ruling party when the contest takes place there in 2024. 

  Across the continent, incumbents with spent legitimacy go into elections with terminal hubris. With public resources, they compromise every institution in the election management and dispute resolution chain, frustrating the basic structure and rules of electoral contests. For clarity, elections are ordinarily supposed to be governed by determinate rules designed to ensure that the outcomes are indeterminate until results are announced. Now across the continent, ruling parties make the rules indeterminate and suborn the courts to ensure that this is the case, all to ensure that the outcomes are pre-determined. 

  

When he suffered his outbreak of generosity late last year, President Mnangagwa did not just stop at bribing the cabinet, security services, and MPs. Not to be left out, be doled out U$D400,000 to all judges of superior courts of record, including the judges of the High Court, the Constitutional Court, and of the Supreme Court of Zimbabwe. The judges received this largesse as “housing loans” but President Mnangagwa curiously forgot to require them to sign any loan agreements. Coming shortly before the judges were expected to assume jurisdiction to adjudicate over the outcome of the country’s elections, it was not surprising that many people took the view that the payments had “the odour of a bribe”.

  It was not difficult to see his strategy. All disputes over the elections will end up before the same judges in cases in which they will have two options. They can either respect the implicit bargain and rule in favour of the ruling party or they should be prepared to have their “housing loan” recalled if they fail to do so. Their fate could even be worse: ZANU-PF could decide to have any judge that rules against them charged with corruption and then impeached and removed as judge. The Judicial Service Commission, which is responsible for judicial discipline, is chaired by the compromised Luke Malaba, Chief Justice since 2017, who was born on May 15, 1951. Under Zimbabwe’s constitution, he was due to retire on May 15, 2021, when he turned 70. Instead, President Mnangagwa unilaterally and without constitutional authority extended his tenure by five years under contract, an arrangement that makes him worse than a presidential lap-dog dressed up in judicial robes. 

 In many African countries, increasingly, elections have become costly misadventures implemented to arrest choice and putting democracy in reverse. Citizens, driven to despondency by the malevolent refusal of incumbent politicians to afford them credible choice at the ballot box or to respect the will of the people disclosed in elections, are now in one country after another tempted to transfer their allegiance to wannabe messiahs in military fatigues. 

Across many African countries, what seemed to be a consensus on military coups has broken down. The fact that military adventurers are returning to political rulership with public support in some African countries is the result of the destruction of public faith in elections as a system for installing legitimate leadership. If the civilians don’t step back, the reversals could become a contagion. 

*Odinkalu is a law professor and public intellectual