Democracy Lab

Asleep at the Wheel

Zimbabwe’s Supreme Court had the opportunity to finally give the opposition a fighting chance. But it didn't.

Elections, everywhere, are frequently fraught with acrimony. When they do get messy, it may take either foreign involvement (as in Côte d'Ivoire in 2010) or, as often happens, courts roll up their sleeves (recently seen in Kenya, Uganda, and even the United States) to resolve them. While such involvement by courts has generally earned the judiciary broad recognition as a champion of democracy, this hasn't always been the case -- at least not in Africa. 

Lately, many eminent African constitutional scholars have expressed profound skepticism and decried the polarizing and sometimes negative impact of judicial intervention in electoral disputes on the continent. Their point, it seems, is that by manipulating political forces, courts are increasingly becoming instrumental in thwarting the very democratic ethos they are supposed to protect. While this is not without some (perhaps questionable) exceptions, events in the lead up to Zimbabwe's first general election in seven years, following both the adoption of a new constitution and the horrifying election-related violence of 2008, give fresh impetus for deeper reflections on such concerns. 

Zimbabwe's parliament was set to automatically dissolve on July 1, meaning that routine elections needed to be called. When exactly they should be held, however, remained a matter of great contention until Zimbabwe's Supreme Court intervened. In a May 30 ruling characterized by some analysts as "crisis-provoking," and upheld on appeal on July 4, the Supreme Court ordered President Robert Mugabe to call general elections no later than July 31 this year. The majority opinion, despite dissent from some on the bench, reasoned that allowing the president to rule without a legislature amounted to "shredding the Constitution and inviting a state of lawlessness and disorder." 

Critics however, find fault with this reasoning, saying that the old Constitution, which has certain provisions still in effect, only requires that elections be held within four months of Parliament's dissolution -- time that the opposition requested in order to prepare for the upcoming election. With no apparent legal need to hold "early" elections, the court order for elections to be held at the end of July only reinforced emerging cynicism regarding the democratizing impact of judicial involvement in electoral disputes. 

The country may have, so far, had a successful constitutional reform process (based on the power-sharing agreement between the ruling party and opposition starting in 2008), but the political transition process itself remains highly charged. Tact and due diligence, especially as far as the planned elections are concerned, are critical; any error can result in total regression on progress made so far. Yet, it does not seem this is a goal -- at least not for the Zimbabwe African National Union-Patriotic Front (ZANU-PF), the ruling government party that has made no secret of its support for the Court's recent decisions despite concerns from regional bloc, the South African Development Community (SADC), and the opposition party Movement for Democratic Change (MDC) that Prime Minister Morgan Tsvangirai is the leader of. 

Zimbabwe's political system is not stable enough to undergo elections at this time. Reforms to de-politicize a highly partisan security apparatus traditionally allied to Mugabe's ZANU-PF have been ignored. Recommendations to amend key media laws such as the Broadcasting Act, the Criminal Procedure Act, as well as the Access to Information and the Privacy Protection Act, which should ensure free and fair coverage of the elections by both the public and private media, as well as protect journalists, have been mostly disregarded. 

Money is another issue. With the United Nations officially out of the picture, the only other funding option is the SADC. Mugabe's increasingly confrontational tone towards the bloc appears to have undermined this as the country has now drawn on its own reserves to self-finance the elections; money it doesn't really have. Given that the country's economy remains very small and has recently lost  three points on its GDP, Finance Minister, Tendai Biti of the MDC has described the situation as rape, and warned that it will put the country back economically as  they have had to draw on resources which could have otherwise gone to more productive sectors. 

Why would a court insist on ordering elections under such circumstances? 

Mugabe and the ZANU-PF have welcomed the Constitutional Court's refusal to extend the election date, and have indicated their resolve to abide by and implement it with an eagerness to comply with judicial decisions that is not normally a trademark of the regime. 

Mugabe and ZANU-PF are being this compliant because they have the most to gain from the consequences of the court's decision. The Mugabe camp's motivations are elucidated when compared with the Egyptian parliamentary elections of November 2011. Similarly to Egypt's conservative but better-organized Muslim Brotherhood (MB), Mugabe's ZANU-PF prefer early elections; the MDC alternatively, like Egypt's ill-organized secular parties, called for postponement to allow for key reforms and proper preparation. 

Like the MB two years ago, the ZANU-PF, is widely seen as likely to ride the wave to victory in any election held sooner rather than later. Two credible surveys from 2012 -- one by Afrobarometer, and the other, jointly conducted by Freedom House and Zimbabwe's Mass Public Opinion Institute -- have in fact predicted such a possibility. Legitimate factors -- some of which have been attributed to growing corruption within the MDC, and what some perceive to be Tsvangirai's poor handling of the power-sharing government with Mugabe -- do account for this. Another possible cause for the MDC's dwindling fortunes is Prime Minister Tsvangirai's colorful liaisons with women, which the ZANU-PF has made sure to point out during campaigning.  

Yet, one cannot also discount the impact of the intimidating campaign of terror being perpetrated by ZANU-PF militants on voters, who remain terrified by the prospects of another round of election-related violence. The same applies to Mugabe's deliberate refusal to implement the constitutionally mandated reforms which many agree are critical for guaranteeing a legitimate and peaceful election. 

Considering these broader concerns, and the Court's apparent reluctance to engage them, it is hard not to question whether forcing these elections now is anything but a recipe for disaster -- especially if any of the parties reject the outcome of the polls. 

Without being an advocate of reactionary courts nor bed fellows with unadventurous judges, it is important to emphasize one common expectation of courts in a democratic polity: When judges are faced with a high-stakes query (like elections) in which strict interpretations of what is legal might not only yield unjust results but also provoke social tensions or conflict, they must find the just and appropriate balance between law and context. It is clear that the Supreme Court's judicial intervention is advocating measures that aren't appropriate for promoting governance and democracy in Zimbabwe. 

One thing emerging from both the court's rulings which must not be glossed over is the deep political antagonism that continues to define the relationship between Zimbabwe's main parties, despite six years of coalition rule and the unified euphoria of the March constitutional referendum.  Virulent and scathing attacks against Tsvangirai and the MDC from ZANU-PF ministers following the first ruling, as well as assaults by the Mugabe-controlled security forces on MDC partisans are indicative of bigger battles ahead in the event of another disputed vote. 

Could we, as some are predicting, be looking at a possible replay of the past six years? Should that become imminent, will this Court despite failing to inspire confidence so far -- be able to resist the politics, and stand by the purpose, values, and vision of the new constitutional order? What happens in Wednesday's elections and in the days and weeks following it will be decisive, not the least because it will provide the single most important test for all the key actors of this political process.

JEKESAI NJIKIZANA/AFP/Getty Images

Argument

The Unsettled Question

Does anyone have the slightest idea how many Jews are in the West Bank?

With Israeli-Palestinian peace talks about to begin again, the debate over West Bank settlements is bound to heat up -- in public and at the negotiating table. The argument, however, involves not just opinions on what policies are right, but disagreement over basic facts. Is most construction now in the major blocs and in Jerusalem -- areas that Israel is believed likely to keep in any final agreement -- or is there substantial growth as well in settlements beyond the security fence, which would likely be part of a new Palestinian state? In whose benefit is time ticking, anyway?

Given the constant focus on the settlements -- not least in Washington and European capitals -- one would expect simple and forthright answers to these questions. But getting the facts turns out to be as great a challenge as settling on the best policy. There is no agreement on population growth rates in the settlements, nor on how many Israelis live outside the "major blocs." The ambiguity around this important question has allowed interested parties to fill in the blanks with answers that best suit their political narrative.

The numbers given by the Palestinian Authority, which show linear population growth over the past decade, reported that there were a staggering 544,000 Israeli settlers in 2012, which is 9 percent of Israel's Jewish population. Those figures, however, do not distinguish between Israelis who live east of the security fence and those who live in Jerusalem or in the major blocs that at Camp David, in the Annapolis peace summit, and in every proposed peace plan end up as part of Israel.

The Israeli Central Bureau of Statistics would be the natural place to look for such figures, but as there is no single agreed definition of what constitutes a "bloc," its official number of 325,000 Israelis now living in the "Judea and Samaria region" provides only partial information. Like the Palestinian Authority's figures, the bureau's numbers do not tell us how many Israelis live in the large blocs that Israel is likely to keep, nor how many live in the areas of the West Bank that are expected to become part of the new state of Palestine.

In a New York Times op-ed last year, settler leader Dani Dayan cited 160,000 Jews living in "communities outside the settlement blocs that proponents of the two-state solution believe could be easily incorporated into Israel." Meanwhile, Peace Now's official Facebook page speaks of 70,000 citizens who would have to relocate if an agreement were finally found.

Of course, current population totals may reflect longer-term rather than recent trends. Our main goal was to see what's happening right now: Are those towns beyond the security fence still growing? The oft-repeated argument that "the window for peace is closing" depends largely on the belief that the settlements beyond the fence are expanding, meaning the number of Israelis who may resist a final agreement is presumably growing as well.

Israeli election results data provide an important insight into these elusive facts on the ground, because trends in the size of the voting population can be a good proxy for trends in overall population. According to electoral data, there has been significant recent growth all throughout the West Bank -- on both sides of the fence. More specifically, the number of Israelis over the age of 18 (eligible voters) who live beyond the Green Line and outside the settlement blocs has increased by 17 percent during Prime Minister Benjamin Netanyahu's current term in office.

The population growth rate of Jews in Israel was about 6 percent when today's voters were being born, meaning that some of the additional 11 percent reflects physical relocation to the settlements. Of course, the "natural growth" of the settlements may exceed the population growth rate of the average Israeli Jewish family: Religious families in Israel tend to be larger, and in the West Bank younger, than the general population, so it is logical that their growth rate is higher. But that does not change the bottom line: Settlements beyond the Green Line and outside the major blocs grew by over a tenth during Netanyahu's recent term of office.

As we have noted, there is no one definition of settlement "blocs" -- but that turns out not to matter much either. By counting only towns that are west of the existing security barrier, one reaches the same results: 17 percent growth. Similarly, by looking only at towns that were offered by former Prime Minister Ehud Olmert in the 2008 Annapolis negotiations, the growth in the number of voters remains as high.

Is a 10 or 11 percent growth rate high? We looked at the Olmert years for a comparison. During Olmert's three-year tenure (2006 to 2009), the number of eligible voters in those very same towns grew by 35 percent. That was more than double the current annual rate and the lower recent rate may reflect, for example, the partial moratorium on settlement construction imposed by the Netanyahu government in 2010. The growth during the Olmert years is remarkable, considering that his campaign agenda (hitkansut, usually translated as "consolidation") was a second disengagement and withdrawal from much of the West Bank area beyond the fence. It is also noteworthy that some of this faster growth comes from towns in which the majority of votes went in 2013 to center-left parties that advocate for a two-state solution (Almog, Niran, Gilgal) or to ultra-Orthodox parties that generally accept the idea of partition (Asfar, Ma'ale Amos). Those voters are Israelis who chose to move into settlements for non-ideological reasons and would presumably be willing to move if compensated.

The total number of eligible voters in settlements beyond the security fence in January 2013 stood at 43,155. Both the Yesha council website and data from the 2008 Israeli census indicate that the median age is 18 in the Judea and Samaria communities, which means that the actual population is about double the number of voters.

Ironically, both the Palestinian Authority and the Yesha council have chosen a strategy of supersizing the numbers -- the Palestinians to create a sense of urgency ("the window for peace is closing"), and the settlers a sense of irreversibility ("it's too late to move so many settlers out"). Scare tactics and alarmism, however, will only stifle productive debate and can lead to policies grounded in misinformation.

In recent years, Netanyahu has made several statements that endorsed a two-state solution and showed he understood that a peace agreement with the Palestinians would require removal of numerous settlements. If the guiding Israeli principle remains a two-state solution, partition of the West Bank, and separation from the Palestinians, it is especially hard to see the logic in allowing further blending of the populations. The roughly 80,000 Jews who live in the places included in the 2008 offer by Olmert still remain a drop in a sea of Palestinians. Perhaps the settler movement should reconsider its focus on maintaining and expanding that small population, which is only 3 to 5 percent of the number of Palestinians living in the West Bank. An internal debate over possible overstretching, and consideration of focusing their efforts on second-tier goals -- such as the Negev and the Galilee, where the Jewish population is thin, and successive governments have tried to increase it -- might be worthwhile.

The policy of several consecutive Israeli governments has been to seek a two-state solution -- but Israeli resources are still being put into the expansion of the very settlements that would have to be removed to consummate such a deal. How many resources, and how much are those settlements growing? It is hard to come up with hard numbers, and we acknowledge the limitations to our methodology. But the very fact that facts are hard to come by is significant: Transparency won't end the debate on settlement expansion, but it would make that debate better informed and far more intelligent.

Uriel Sinai/Getty Images