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Sharon Hofisi Legal Letters
Maybe you are one of the registered voters, party leader, official bystander or avid supporter of a particular party or candidate whose conscience has become focused on the integrity of the July 30 election.

If you’re a constitutionalist, you’re, perhaps with a measure of normative concern, in a uniquely easy position.

In a constitutional democracy, and in constitutional, journalistic or political classes, you were taught constitutional rights or the link between constitutional law and politics as informed by the Constitution. In your classroom, the ideal relationship between the law and politics seemed what is — idealistic. But now, idealism in the classroom lesson seems to give in to realpolitik through the ballot box.

You consider your lecturers at school or learned colleagues outside the confines of classrooms informed people who know a lot about elections, malpractices, litigation, political rights, freedoms of expression and association, the rights of political parties, and the role of independent institutions that support democracy such as the Zimbabwe Electoral Commission (ZEC). Yet what you were taught by your lecturer or made to believe by your colleagues seems to be at variance with the realpolitik in the actual performance of political game. You feel like some are playing for time while some are promising to win and really show that they want to win.

The lecturers of your courses on political ideas, the politics and administration of elections, or constitutional law have different academic backgrounds, yet they always teach you using the constitution as their compass.

Zimbabwe’s election has definitely taken you out of the maze — the constitution and governance mustn’t be separated.

One is the will of the people, the other the works of the people, and they must always contribute to good governance and constitutionalism.

Because many who read, discuss or have received some training on the constitution are familiar with the norms, freedoms and objectives of the constitution, and may have deliberated them with politicians of their choice, the sticky issues on electoral reforms have been discussed with verve on various media platforms, street corners, football matches and homes.

I may not refer to them here as doing so is akin to reiterating the obvious.

If you are concerned with the legitimacy of the election, your obvious starting point is the people of Zimbabwe.

They’re the measure of that legitimacy.

Zimbabweans have been deciding before, and will do so during and after July 30, 2018 to see if electoral legitimacy is a mere act which is witnessed after the electoral outcome or that the concerns in the pre-election period and behaviour during the actual election bear significantly on the legitimacy of the people.

The hope is that if political parties, independent candidates and voters believe in the constitution, they must not read the supreme law lowly if our democratisation efforts are to be strengthened through free and fair elections.

Our desire is that the constitution contains non-negotiable tenets which bind politicians and those outside power structures.

To this extent, it must be our master.

We must be its proud servants.

Questions on political legitimacy are not new to Zimbabwe. We recently witnessed Operation Restore Legacy (ORL).

Most Zimbabweans gave it legitimacy when they supported the military transition that was led by the Zimbabwe Defence Forces. Although some felt the move was a coup in its variegated descriptions not given here, various sections of the Zimbabwean population felt that the operation was irreversible.

They might have differed on who was to succeed former President Mr Robert Mugabe or how the set-up in government should have been after ORL, but those who read the constitution know what it says on how a party in government can nominate a candidate to fill in the vacancy in the Presidency in the event of an incumbent’s resignation, death and so forth.

A historic election is surely with us — new politics and new faces.

Our desire should be that if we already know that elections are part of our principles of good governance and constitutional rights, our pursuit for democracy and change in governance and governments must not seem to amount to a breach of the constitution.

With our voices and votes, we know that legitimacy comes from the people.

This has encouraged people to take a stand on what they know to be constitutional.

This will require commitment, for it is easier to point fingers than to build bridges.

However, commitment alone is not enough.

Zimbabweans need to worry a lot about transitional justice in the country. Let’s all ensure that we see how transitional justice institutions such as the National Peace and Reconciliation Commission deal with past and ongoing abuses.

We must also laud independent candidates who’re taking complaints of human rights abuses to the Zimbabwe Human Rights Commission (ZHRC).

ZHRC must use the broad constitutional mandate on justice to ensure that it also deals with serious violations that hinder transitional justice — especially issues of political violence and stolen dignity. While we stand for what we believe to be constitutional, let’s not forget the old proverb, “argument weak, shout louder”.

As we call for legitimacy in this election, political candidates outside power must perhaps steep to their minds the adage that says, “It is better to use your temper than to lose it”.

Sharon Hofisi is a UZ lecturer in administrative and constitutional law. [email protected]