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The legality of Tsvangirai-s withdrawal from the election
Alex Magaisa
June 25, 2008

In what is a bizarre circumstance of this electoral season, President Mugabe and ZANU PF insist that Morgan Tsvangirai, the MDC leader, must stand in the run-off election, when the latter-s withdrawal might have been expected to be cause for celebration on their part.

Why, it has to be asked, would a contestant given free room to achieve what he most desires, insist on retaining his opponent-s participation? The same opponent that has been lambasted as a stooge and non-entity; the same character to whom they declared without equivocation that they would not concede; the same man whom they have said would 'never, ever rule Zimbabwe- - why then, the question remains, plead to the heavens for his participation when everything pointed to the futility of any outcome in his favour?

How does one contest against someone who considers himself so omnipotent that he declares God to be his only worthy opponent? Tsvangirai simply decided he was unable to take part in this 'Holy War-.

MDC-s Moral Leverage

It is not hard, of course, to understand ZANU PF-s discomfort and to appreciate that the MDC-s decision has had far more impact than could have been imagined. When I wrote in these pages a few weeks ago, it was to warn the MDC to prepare for the 'worst case scenario- where by a short, sharp and swift process, Mugabe would be declared winner after June 27. That outcome was as clear as the sunrise over the majestic Eastern Highlands of Zimbabwe. The decision taken on Sunday to withdraw from the run-off has pre-empted that worst case scenario, literally catching ZANU PF off-guard, hence the panic.

The worry in ZANU PF circles is simple. Now that this has become a one-horse race resulting from the circumstances of its own making, the outcome will be no more than what has been known since Roman Times as a 'Pyrrhic Victory- - a win that comes at great cost to the victor. Mugabe and ZANU PF are well aware that a one-horse contest will deliver a hollow victory; one that is devoid of legitimacy, a result that not even their own compromised conscience could allow them a decent nap.

But this is less about the MDC decision, which was arrived at, I am told, after serious consideration of prevailing events and consequences. It is the reaction of ZANU PF and some of the legal interpretations that have been proffered to allegedly render the withdrawal unlawful and of no force or effect.

First, that they have gone to great lengths to attempt to water-down the withdrawal is, itself, an indication that it has had an effect. In any other contest where an opponent withdraws, the contestant would be happy enough to go through with a walk-over. Here, though, we see the desire for a fight, because it would provide a measure of legitimacy to the process, especially having already lost in the first round. The reaction to Tsvangirai-s withdrawal betrays a certain weakness on the part of Mugabe - that deep down; behind the camouflage of bravado and buck-swashing arrogance, there is a very vulnerable and sensitive soul.

Tsvangirai-s Entitlement to Withdraw

Second, it appears preposterous to say that Tsvangirai is legally not entitled to withdraw from the run-off election as has been suggested in some circles. Why not? Since when have citizens become prisoners of the law, unable to exercise their free will in an election?

The key provision under the Electoral Act is Section 110(4), which states:

"In a second election held in terms of subsection (3) only the two candidates who received the highest and next highest numbers of valid votes cast at the previous election shall be eligible to contest the election" (added emphasis).

To my mind, the operative word here is eligibility to contest. The word 'eligible- is not defined under the Electoral Act, so we turn to the ordinary meaning as given in the dictionary. The Cambridge Advanced Learner-s Dictionary defines eligible as, 'having the necessary qualities or fulfilling the necessary conditions-. But eligibility does not mean that you must take part in the process. It simply means you meet the necessary conditions but you can choose not to take part.

Take by way of example the fact that every person above the age of 18 years is eligible to register and vote in elections. It does not mean every person who is 18 years or above is forced to register or to vote. Some can and often do choose to withhold their vote. In other words, eligibility does not make participation fixed and mandatory.

To take another example, those who qualify from the competitive heats are eligible to contest in the 100 Meters final of the Olympics. One of them, say, the record holder and defending champion might at that stage choose to withdraw from the final race. He is entitled to withdraw, even though he was eligible. The eventual winner might not get the same satisfaction that he would have earned from beating the defending champion but that cannot be reason to compel an eligible participant to take part, especially when he has good reason to withdraw.

Both Tsvangirai and Mugabe are 'eligible- to contest the run-off election in terms of S. 110(4). But they are certainly not obliged to do so. Tsvangirai has chosen, rightly or wrongly, not to participate and nothing can force him to contest against his will.

Questions over Participation in Swearing in of Parliament

However, in keeping with the approach of maintaining scrutiny over those who might form the government in the not-too-distant future, there is another issue which we must place on the table and ask whether the MDC has seriously considered it in the context of the big picture. Because, in that matter, the interests of the collective might conflict with the selfish desires of the individuals.

Now that Mugabe will undoubtedly retain Presidential office, albeit devoid of legitimacy, what will the MDC do in relation to matters of Parliament? It is common knowledge that the MDC won the combined elected majority of both chambers of Parliament - House of Assembly and the Senate. Logically, they would want to retain that parliamentary power, although it will soon be diluted when Mugabe-s 33 Factor comes into effect - 18 Chiefs already in place, 10 Governors and 5 direct appointees.

The problem here is that in terms of the skewed Constitution the commencement of the Parliamentary tenure is predicated on the assumption of office by the newly elected President. Section 63(4) of the Constitution provides that the period of tenure of parliament is deemed to commence on the day the person elected as President enters office. The President will conduct ceremonial duties when Parliament is first sworn in.

The net effect is that the participation of Mugabe in the process will have symbolic importance which the MDC must now seriously consider. Could the participation of the MDC parliamentarians in the process be considered a symbolic acknowledgement of Mugabe-s legitimacy as President? If so, this would fly in the face of the decision to withdraw in order to diminish the legitimacy of the process and outcome of the run-off election?

It may be argued in defence of participation that the Parliamentary and Presidential elections are two different matters but that is tantamount to splitting hairs and overlooking the bigger picture. It is hardly my place to advise the MDC on what it should do but it suffices to highlight the potential conundrum.

Sure enough the MDC is, forgive the use of the old cliché, caught between a rock and a hard place. Such participation might be interpreted as recognising Mugabe-s presidency, which would appear inconsistent with the approach it has taken regarding the run-off election. But failure to participate could mean that the MDC Parliamentarians are not duly sworn in and may not be able to take part in the business of Parliament. The MDC might end up losing what leverage it had in Parliament. Yet, still, refusal to participate would not only be consistent with its approach to the run-off election, but it would also deal a further symbolic blow to any claims of legitimacy that Mugabe and ZANU PF might still lay claim to.

Whichever direction this matter takes, Zimbabwe-s political future could not be more uncertain. The MDC made a bold decision, which, contrary to other suggestions, it is perfectly entitled to make. The greater question is the resolve with which it will stand by its decision. Care should be taken not to take decisions that might be considered as flip-flopping on this matter. One of the first great tests will be the MDC reaction towards the swearing in of Parliament, an event at which Mugabe-s symbolic presence will be visible and significant.

Meanwhile, Mugabe has said that only God will remove him from the throne. One here is reminded of the old saying that those whom the gods wish to destroy, they first deprive of their faculties.

But I do not, for a moment, suggest that God has anything to do with the current madness.

Alex Magaisa is based at The University of Kent Law School and can be contacted at wamagaisa@yahoo.co.uk or a.t.magaisa@kent.ac.uk

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