ZESN on recalls: Place citizens at centre of representative democracy | Spiked.co.zw

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When considering recalls, the Zimbabwe Elections Support Network (ZESN), has urged lawmakers and politicians to place the citizens at the centre of representative democracy.

These sentiments were shared in a ZESN-published Position Paper on Recalls, Subsequent By-elections, and Lessons Learnt which seeks to examine democratic accountability and governance. The paper also facilitates debates on the conditions under which recalls are warranted, the potential misuse or effectiveness, and its impact on political representation.

Below, Spiked Online Media shares excerpts from the position paper:

The Recall Legal Framework in Zimbabwe

The recalls have been challenged in court. The constitutional court has considered the interpretation and scope of section 129(1)(k) regarding the role of the Speaker and President of the Senate: The court rules that ‘the provisions of s 129(1)(k) of the Constitution do not clothe the Speaker or the President of the Senate with power to inquire into the legality or otherwise of the fact of cessation of membership of the political party concerned by the Member of Parliament… The law requires the Speaker and the President of the Senate only to accept that a person has ceased to be a member of a political party as communicated by the written notice.’

From this premise, it is clear that the legal framework is designed to enable intra-party recalls where self-interested politicians find fertile grounds for political manipulation with the potential to erode democratic governance. The genealogy, history, and contemporary dimensions of recalls show that they have been largely used as an instrument to thwart inter and intra-party competition. The main feature inimical to representative democracy is that recalls are mainly done by political individuals and not political parties as organised institutions. This resonates with Welp Yanina, and Juan Pablo Milanese’s recent findings on instigators of recall referendums in Colombia.37. Here, a recall is clearly designed to resolve internal conﬂicts within a party and for personal power consolidation, forcing party discipline. There will be something wrong with any democracy if elected MPs become more afraid of their parties or dominant elites within their parties than the people who elected them and the nation they are to represent.

The Recalls History (1989-2022)

From its genealogy, the recall clause was introduced through the 1989 constitutional amendment to deal with internal ZANU-PF politics. The then leader of ZANU-PF, Robert Gabriel Mugabe, faced political competition from his party’s Secretary-General, Edgar Zivanai Tekere. Tekere was critical of Mugabe’s political plan to establish a one-party state. Consequently, ZANU PF expelled Tekere from the party in October 1988.

Mugabe took the post of Secretary General. However, Tekere retained his seat in parliament much to the chagrin of Mugabe. This is because there was no legal provision to institute a recall. This triggered a constitutional amendment process to enact the recall clause at the behest of Mugabe. However, the recall was not eventually used on Tekere who formed a new party, the Zimbabwe Unity Movement (ZUM), and contested Mugabe in the 1990 presidential election.

Paradoxically, the first party to use it was the Movement for Democratic Change (MDC) under the leadership of Morgan Richard Tsvangirai to deal with internal party frictions. As enshrined in its constitution, the MDC was founded as a social democratic party that believed in ‘an open democracy’ where national leadership should be ‘accountable to the people through the devolution of power and decision-making to the provinces and local institutions and structures’.

Munyaradzi Gwisai, the then MDC MP for Highfields, was expelled from the party on 22 November 2002. The MDC national executive found Gwisai guilty of contravening the party’s constitution.

However, Gwisai alleged that he was expelled over ideological (programmatic) differences as he preferred a radical socialist mode of governance. Gwisai became the first MP in post-colonial Zimbabwe to lose his seat after his party expelled him and notified the Speaker, Emmerson Dambudzo Mnangagwa, who declared the constituency vacant on December 3, 2002. Thereafter, Welshman Ncube, who led an MDC splinter faction recalled MPs for working with the rival opposition MDC-T party led by Tsvangirai in 2012.

Zimbabwe had an opportunity to repeal the recall clause to strengthen representatives’ accountability toward citizens during the 2013 constitution-making process. However, a party-driven recall process was retained. This was not surprising because the constitution-making process was led by politicians from dominant political parties in Parliament.

For the opposition MDC, the retention was meant to largely contain excesses of a competitive authoritarian state by precluding the real possibilities of solicited and opportunistic defections by elected oﬃcials for personal prebends and to promote the stability and control of their political parties. On the other end, ZANU-PF had an array of strategies to rein in its MPs including state patronage, coercion, and state-sponsored arrests – an arena the MDC could not ‘compete’. This is more pronounced in a context where there are sparse livelihood opportunities outside a ruling party that is integral to state resource allocation through patronage networks.

In addition, ‘defectors may also be bankrupted, arrested, or even killed’ in authoritarian states where the idea of loyal opposition hardly exists. However, ZANU-PF and in particular Mugabe, who was in the twilight of his career could not reject any opportunity to further his party control for hegemony. There was a convergence of political parties’ interests and hence the recall clause remained in the contemporary constitution.

From there on, the recall clause has continued to be used as a political tool to deal with intra-party conﬂicts by all the dominant political parties and players. For example, as ZANU PF faced the succession battle, MPs alleged to be belonging to Joice Mujuru’s faction which was known as Gamatox (a banned toxic pesticide in Zimbabwe) were recalled from parliament.

For example, Didymus Mutasa and Temba Mliswa were expelled following a meeting of the ZANU PF Politburo on 18 February 2015 without the involvement of the citizens. On 3 March 2015, the Speaker of the National Assembly subsequently announced that the two seats in the National Assembly had become vacant in terms of section 129 (1)(k) of the constitution.

In June 2015, ZANU PF expelled members of parliament, for Mwenezi East ( Kudakwashe Bhasikiti), Marondera Central (Ray Kaukonde), and Guruve North (David Butau), for alleged links with Joice Mujuru’s Gamatox faction. In a twist of events, following the military coup that toppled Mugabe in November 2017, Mnangagwa and his allies used the recall clause to subjugate Generation 40 (G40) which had opposed his rise to power. In political reality, G40 came to refer to a faction associated with former politburo, cabinet members, and MPs including Jonathan Moyo, Walter Mzembi, Patrick Zhuwao, and Saviour Kasukuwere. The G40 faction was publicly fronted by Grace Mugabe who was married to Mugabe as the succession race intensified.

Following the death of Tsvangirai in 2017, three factions intended to succeed Tsvangirai, namely the Nelson Chamisa faction, Thokozani Khupe faction, and Douglas Mwonzora faction. All three factions, albeit to different degrees, used the recall clause as a way to assert their authority and power within the party. It is important to note that even Morgan Tsvangirai recalled 21 MDC T MPs and senators in March 2015 after they joined a splinter faction called the MDC Renewal that intended to depose him from power and succeed.

The Chamisa faction was the first to successfully recall Khupe from parliament in 2018. After Khupe won the court case to lead the MDC T, she also recalled MPs who were aligned with Chamisa in 2020. Following Mwonzora’s ascendancy to the presidency of the MDC T, he also started recalling MPs who belonged to Chamisa’s faction and some who were not explicitly loyal to him in 2022. The recall clause was not only abused to try and deal with succession politics in ZANU PF but also within the main opposition.

Current Recalls, Subsequent By-Elections, and Impact

Following the controversial 23-24 August 2023, Zimbabwe has been in a ‘recall crusade’ fronted by Sengezo Tshabangu. Tshabangu’s actions were partly a result of simmering internal contradictions within the opposition but were quickly hijacked by ZANU PF and state elites to decimate and emasculate the popular opposition front, led by Chamisa.

Tshabangu, a self-appointed Secretary General of the Citizens Coalition for Change, wrote a letter to the Speaker of Parliament, President of the Senate and Minister of Local Government recalling 14 CCC members of the National Assembly [(9 directly constituency MPs, 5 Women quota MPs and 1 youth quota MP), 9 senators and 17 councillors from their positions arguing that they had ceased to be members of the CCC on 3 October 2023. As a result of Section 129 (1) (k) of the Constitution that bestows power on political parties, the seats were declared vacant and Mnangagwa proclaimed December 9, 2023, as the day for by-elections.

The CCC then led by Chamisa challenged the recalls in Court and lost. The CCC argued that Tshabangu was not a member of their political party but rather an impostor with no right or authority to recall anyone hence the recalls were illegal, null and void and of no force and effect. However, the Court effectively accepted the recall letter ‘despite the improbability that party members who had been elected on a party ticket just two months previously, some of whom had only just been sworn in, would have ceased to belong to their party.’ Further to this, on 7 December 2023, the High Court in Harare granted Tshabangu an order to expunge the names of recalled MPs from the ballot paper for the by-elections. Zimbabwe was left with a ‘choiceless election’ without the participation of the main opposition party led by Chamisa.

On 9 December 2023, ZANU PF won seven out of the nine parliamentary by-elections. The ruling party now had 184 seats (144 directly elected through first past the post, 33 proportional representation for women and seven youth quota) out of 280 seats in the National Assembly. ZANU-PF was now three seats away from having a two-thirds majority in the National Assembly. Consequently, six more constituency by-elections were held on 3 February 2024 following the recall of six more opposition MPs by Tshabangu.

Following the by-elections held on 3 February 2024, the ruling party now has 190 seats (150 directly elected through first-past-the-post, 33 proportional representation for women and seven youth quota) out of 280 seats in the National Assembly. This translates to a two-thirds majority but only in the National Assembly.

Contrary to popular perception, the ruling ZANU PF party still does not and cannot have a two-thirds majority in Parliament necessary to pass a constitutional bill on its own. In Zimbabwe, a Parliament consists of the Senate and the National Assembly. For a constitutional bill to pass as expressed in section 328 (5), it needs aﬃrmative votes of two-thirds of the majority of the membership of each House that is the National Assembly and the Senate.

ZANU PF can never have a two-thirds majority in the Senate because the proportional representatives are based on the 23-24 August general election outcome. ZANU PF got 33 out of 80 seats and will need 21 seats to get a two-thirds majority in the Senate, required to pass a constitutional amendment. Therefore, recalls cannot result in ZANU PF getting the two-thirds majority to pass a constitutional amendment. This is because the party that recalls simply fills the vacancy with its members. ZANU PF will therefore need to persuade the two representatives for people living with disabilities, the 18 traditional leaders and at least one MP from CCC. Politically, this is feasible for ZANU PF given its use of coercion, intimidation and patronage but is not given.

Nevertheless, the recalls have had a calamitous effect on Zimbabwe’s democracy in ways dissected below.

The recalls were not citizen-driven and have allowed ZANU PF to maintain political hegemony and domination of Parliament through deals with opposition politics A strong opposition presence in Parliament is good for democracy. This recall pathway has led to the instrumentalization of the recall by losers to re-engineer or reverse electoral results based on spite rather than programmatic differences.49 ZANU PF managed to reverse electoral results in marginal constituencies. Winners must be able to exercise their power in line with the constitutional term limits. An election must be irreversible ex post. Once election results are reversed, then Zimbabwe’s electoral chain of democratic choice is broken.
The undemocratic recalls have eroded the people’s confidence in electoral processes as signified by the low voter turnout during the by-elections. For example, in the February 2024 by-elections, voter turnout was low in the six constituencies. The voter turn was as follows: Mkoba North (14.06%); Pelandaba-Tshabalala (11.73% ); Goromonzi South (18.1% ) Chegutu West ( 33.5% ); Zvimba East (31.6% )and Seke (30.18% ). As ZESN has aptly argued, ‘the inﬂuence of recalls on the democratic character of elections is apparent in the decreasing voter participation witnessed in by-elections after the 2023 Harmonised Elections. In a show of voter apathy, the total number of votes cast per Constituency was notably way below the votes garnered by the winning candidate alone in the August 2023 Harmonised Elections.
In addition, it has made representatives doubt the eﬃcacy of political parties as a vehicle to deliver democracy. Chamisa eventually resigned as President of the CCC on 24 January 2024 partly as a protest to the abuse of the recall provisions by his political rivalries who did not respect the citizens’ will. Fadzai Mahere the former MP for Mt Pleasant, Allan Rusty Markham the former MP for Harare East and Alleta Ushe, a Proportional Representative councillor for Mudzi Rural District Councils also resigned in solidarity with Chamisa. As a result of losing confidence in political parties, a number of CCC members have contested by-elections as independent candidates to avoid potential subsequent recalls. These dynamics have also compromised the quality of representatives.

Tshabangu’s actions were partly a result of simmering internal contradictions within the opposition but were quickly hijacked by ZANU PF and state elites to decimate and emasculate the popular opposition front, led by Chamisa.

RECOMMENDATIONS

Fundamental to the way forward is placing the citizens at the centre of representative democracy. The international versions of recall are informed by a citizens-centred rather than a party-centric process. All they differ in is the degree of cumbersome. However, these international versions cannot just be exported to Zimbabwe. The political environment and the authoritarian nature of the party-state are different from other polities. Considering this risk, recall procedures should not be too easy to implement. The recall must be designed in such a way that it becomes a last resort option rather than the norm. To realise this goal, I conclude with the three models and propose a way forward.

MODEL A: INTRA-PARTY RECALL

The recall is initiated by a political party and such an action triggers the actual by-election with no intervening vote or views from the citizens. This is the least common model because it undermines the essence of representative democracy. Citizens lose the power to use recall as a tool of direct democracy meant to hold representatives accountable. After all, the degree to which political parties penetrate and represent the national territory and society down to the village, street and workplace is low in Zimbabwe. The scope of parties is low in Zimbabwe, just like in many countries, as most of the parties have low rates of membership and lack any real organisation. One can refer to this approach as the Zimbabwe model because it is best epitomised by section 129 (1) (k) of its Constitution as elaborated earlier. This pathway normally leads to the instrumentalization of the recall by political parties and is abused by losers to reengineer or reverse electoral results. After all decisions are hardly made by political parties as organised institutions but are confined to the President’s palace or to the purview of a few dominant political elites. Zimbabwe therefore needs to move away from intra-party-initiated recalls if she is to restore citizens’ trust in democratic representative institutions.

MODEL B: LOW THRESHOLD CITIZENS-CENTRED RECALL

The second model is the low threshold citizens centred recall.. This involves an easy to do two stage process. A low threshold of about 10% of registered voters need to sign a recall petition. A petition is enough for the seat to be declared vacant and for a by-election to become vacant. On the other hand, if the low threshold is not reached the recall fails and the MP retains their seat. A petition is enough to trigger a recall with no intervening vote from the broader societal base. Here the right of recall to citizens is institutionalized in a modest form. One can refer to this as the UK model. Although citizens are supposed to be the initiators of a recall process, it is impossible to exclude Zimbabwe opposition parties to inﬂuence the process in order to topple competitors. In Zimbabwe’s polarized society now characterized by fragmentation of opposition forces, an easy recall can simply be instrumentalized by ‘coalitions of poor losers’ against legitimate winners based on spite than programmatic differences. The recall process as a tool of direct democracy should only be valuable as a last resort instrument. An easy to implement recall process in competitive authoritarian states can be fatal to the proposal.

MODEL C: A HIGH THRESHOLD CITIZENS-INITIATED RECALL PROCESS

This third model places citizens at the centre of representative democracy but at the same time places high thresholds for a recall to avoid inappropriate political manipulation. Broadly, it usually entails a four stage process with regulations. First, there is a petition that must be signed by a high percentage of the electorate with some jurisdictions making it more than 30% like in Canada, Nigeria and Uganda. Second, there is a judiciary review as in Kenya and or a parliamentary inquiry as in Uganda. Third, there is a vote on the question of recall, where the broader citizens of the constituency are asked whether or not they want to recall the representative as in Nigeria. Such a recall referendum also entails a turn out veto as in Kenya, Latvia, Romania and even in undeveloped democracies like Venezuela. Fourth, if a referendum is successful a by-election to fill the vacancy is then held and usually a simple majority is needed. Finally, recall attempts must only be once in a term. There are also strict timelines as when a recall can happen as in Canada, some states in America, Ecuador, Kenya et cetera as detailed earlier.

WHICH WAY FOR ZIMBABWE?

A high threshold citizen led recall process for Zimbabwe is more ideal for Zimbabwe. This will enable citizens to maintain the right of recall as a tool of direct democracy and a reinforcement of representative democracy in a context where politicians largely lack accountability and programmatic delivery. However, the recall has to be regulated to avoid political manipulations consistent with semi-democratic states.

Zimbabwe therefore needs to urgently consider a constitutional amendment that would give citizens and not political parties the power to recall failing politicians in a representative democracy without having to wait for five years. All elected representatives can face the prospect of recall including local authorities, MPs and the President. In states where power is centralised it is usually at the top level of representation that the citizens’ political frustration is highest given the lack of accountability and delivery. However, because of the authoritarian nature of the politics, political opponents would always be tempted to invoke the provisions of a recall.

Consequently, a recall needs to be both diﬃcult to exercise and to be a clear expression of the people’s will.

The constitution and the electoral act amendment process and ensuing national debates need to consider the following ten proposals.

Recall origins: The supreme law of the land should provide that a popular recall of elected representatives may only be initiated directly by citizens of the concerned constituencies through a written petition and not by political This resonates with the practise in Kenya, Uganda, Nigeria, UK, parts of Canada, some states in America, Ecuador, Taiwan and even Venezuela.
Reasonable timelines or a regulated period for recalls: There is need to enact time limits within which recalls may be allowed to happen. For example, in Argentina, Colombia, Ecuador and Kenya the recall is possible at least only after the first year of the term in order to give the elected oﬃcial ample time to prove his or her abilities and at least before the last 12 months of the term.
Substantive grounds for recalls: The constitution or electoral act must clearly lay out the substantive grounds for a recall as reﬂected in most These are usually around mismanagement of public funds, neglect of duties prescribed by law and conviction during the term of oﬃce of a serious crime.
Petition thresholds: The number of signatures needed in support of the petition activating the recall by citizens must be suﬃciently This is to ensure that is not up to a minority or dominant political and business elites having lost the elections to remove a democratically elected representative. At least this may not be less than a third of the registered voters.

5 Petition inquiry/ veriflcation by ZEC. A possibility is to empower a statutory body like ZEC to assess the validity of the petition through verification of signatures as in Ecuador, Kenya and British Colombia in Canada.

A recall referendum: There must be a referendum approved by a simple majority of the votes of the persons registered to vote in that member’s constituency provided a certain threshold agreed to by stakeholders turns out to vote.

7. Judicial review: a judicial review of the substantive and procedural requirements is important to minimise inappropriate recalls. There is need to validate whether a recall has reached both the substantive and procedural grounds. A recall is an important process which is highly sensitive and subject to various possibilities of abuse and manipulation. In Kenya, a recall of an MP shall only be initiated upon a judgement or finding by the High Court confirming the grounds of recall.

The by-election for first past the post: When all processes have been met there is need to have a by-election to fill in the vacant constituency. This can be won by a simple majority as enshrined in the electoral
Replacement of PR MPs: This will still be done by the political party which won the previous
Repeated recalls: In order to avoid repeated recalls or permanent electioneering by rivalries and the distraction of elected oﬃcials only one attempt at a recall should be allowed within a term as in many polities, unless there are special circumstances.

CONCLUSION

Recalls have had a negative impact on Zimbabwe’s electoral democratic processes and have led to the fragmentation rather than the intended consolidation and stability of opposition political parties. Five modest contributions have been made.

First, recalls are enshrined in the constitution as anti-defection laws. Second, the party has sovereign power to recall representatives it nominated as candidates during the election which is against best international practise. It is a party led initiative rather than a citizen led initiative. Third, recalls have become a strategy of dealing with party competition where politicians find fertile grounds to reverse the previous election. Yet for an election to be democratic it must be irreversible. Fourth, recalls have undermined the right of elected representatives to freedom of association and expression with many of them opting for party loyalty over the interests of the electorate or constitutional principles. This militates against the view that once elected leaders must be representatives of the Zimbabwean People as a whole not of the political party that nominated them as candidates. Fifth, loss of confidence in electoral processes and erosion of democratic and legitimate representative governance in the subsequent by elections. Consequently, the ideal route will be to repeal the recall mandate in the constitution.

However, the country must avoid blanket recall laws which will cause capture by ZANU PF as a dominant party-state. Hence practically, given that Zimbabwe is still a semi-democratic state and not a mature democracy high threshold conditions will be necessary. It is therefore argued that Zimbabwe’s laws need to be reviewed in order to entitle the elected representatives to be led by the constitution itself and citizens’ will not necessarily by their party position as is common in most mature democracies.

In the case of exceptional circumstances, it should only be the people of a concerned constituency that can recall an elected representative through a democratic, participatory and transparent high threshold citizen initiated process, not the political party let alone dominant groups within a party that nominated his or her candidature. Regulations should provide for recall origins; reasonable timelines or a regulated period for recalls; substantive grounds for recalls; petition thresholds; petition verification; a recall referendum; judicial review; the by-election and curbing repeated calls.