Preventing a tyranny of the majority

By Dr Alex T. Magaisa WHEN President Robert Mugabe took office as the first Prime Minister of newly independent Zimbabwe in 1980, amid the wild scenes of euphoria, there also emerged a dangerous, but largely unnoticed phenomenon. It is the problem of the ‘tyranny of the majority’, which manifested in severe deprivation of political space for those outside the framework of Zanu PF politics. The trouble now, is that there is a very real risk of this happening again after March 29, unless the winner of the election genuinely commits to a more inclusive structure of government, at least whilst working on damage-limitation efforts to solve the economic malaise and constitutional shortcomings. Perhaps little change is to be expected of President Mugabe, who, unless there is a sea-change in approach, is likely to continue with the current system that has largely been exclusionary. There is a perception in opposition circles that there will be no room, in a new dispensation, for anything or anyone that is Zanu PF-related. Given the poverty brought onto the people by this party’s policies over the last 28 years, this perception is perhaps understandable. But it is neither realistic nor practical. No country can operate properly if every time there is a change of government, there is a complete removal of those aligned to or related to the outgoing administration. Those in key positions may find their positions to be untenable given the different ideas and policies they will be required to implement. But there will, surely, be others who may be prepared to adapt and go with the flow. Some continuity in personnel may be necessary and indeed, unavoidable, in running of the affairs of the state. But there is another reason for more inclusiveness. Today’s Zimbabwe is probably more polarised than in 1980. A key challenge will be to mitigate the effects of a culture of intolerance that has plagued parts of Zimbabwean society. No one among the political players is entirely innocent. The ruling party is intolerant of the opposition and similarly the opposition seems to be intolerant of not just the ruling party but also, worryingly, alternatives to their own views. This culture of intolerance now extends beyond the leaders to the ranks of ordinary members of society. There is a certain irony in this that those claiming to be leading the fight for freedom of expression, become very uncomfortable with any expression that conflicts with their own. But the dangers of this culture of intolerance are more easily manifested when the majority is intolerant of the minority. In this relentless march towards realising the will of the majority, there is a risk of overlooking that democracy should, of necessity, also take into account the interests of the minority. It is far too easy, as we have learnt from our history, and the histories of other nations, to not only ignore but to bludgeon, conquer and batter into submission the minorities. This may even be celebrated as the manifestation of will of the majority. In addition to its ability to give effect to the will of the majority, a mature democracy, must surely pass the test on how it treats the minorities. Most Zimbabweans who now find themselves in the Diaspora may overlook the fact that many of their compatriots from the Southern and Western parts of the country (Matabeleland) discovered the Diaspora long before them. In many cases, it was because they were marginalised by virtue of being a political minority. The political majority, who only discovered hardships much later in the 1990s, did not bate an eyelid for those souls. They were the majority who were least affected by those difficulties visited upon their compatriots. They were either blissfully ignorant or did not care or both. But there was an insidious form of a ‘tyranny of the majority’ at that time. It does not help that our political system is based on the ‘winner-takes-all’ principle. It establishes the basis of the exclusionary politics that we have experienced since independence. It is, in many ways, a continuation of the colonial era politics which effectively excluded the majority of the people from the electoral process and governance. But this exclusionary effect also has implications for stability, security and the protection of human rights. Upon assumption of power, Mugabe retained the colonial era security legislation and emergency laws ostensibly because of security threats, real or imaginary. It did not matter that he and his comrades had been imprisoned and thwarted in their liberation efforts under the same laws. As such there are no real guarantees that a new government post-March 29 will dispense with the current set of security laws. They may well claim, as Mugabe did in 1980, that there exist security threats and hence the need to maintain order. Such fears could be mitigated, however, not by retaining draconian laws and use of force, but by creating a more inclusive system of government which does not totally close spaces for the losers. This is particularly important in a country where restoration of stability is of paramount importance so that that focus can be placed on constitutional reform and economic regeneration – the two key issues that are so vital to Zimbabweans right now. In forming a government, the winner of the Presidential election is not barred from appointing persons from other parties. Sometimes we look up to the older, perhaps more mature democracies, like the US and in Western Europe and it is easy to overlook the fact that their systems have been built over time, chiselled and nurtured for many years, to be where they are, and still they are imperfect. But at least they have developed in-built mechanisms, which remain work in progress, to more effectively deal with interests of political minorities. In the United Kingdom, Churchill’s words on democracy as a system of government assume even greater significance. He said that ‘democracy is the worst form of government except for all those others that have been tried’. We too need to understand the complexities of our polities and the peculiarities of our societies. These features may imply that we need to take different routes in how we organise ourselves politically in order to achieve the objectives of stability, tolerance and economic development. The problem of creating a tyranny of the majority was famously recognised way back in 1787 by James Madison, one of America’s Founding Fathers in the essay Federalist No. 10, a reference point for constitutional jurists. Madison articulated the problem of factions that result within a direct democracy and the risk that if left unchecked, the majority faction could work in ways that are detrimental to the minorities and the aggregate interest of the society as a whole. He said: “A pure democracy can admit no cure for the mischief of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths." Events in many small African countries, with their colonially linear demarcated boundaries bear testimony to this assertion. The small democracies are uncertain, shaky, short-lived and often end up in sordid violence, as events in Kenya evidence. Madison thought that smaller democracies suffered more from the problem of the majority faction since it means that passions and interests more easily spread to a greater number of people who can form a majority and enact their will without hardship through the so-called democratic government. Madison thought that the effects of this problem could be mitigated by, among other things, creating a system of checks and balances, which still forms a key part of the American constitutional system. That is not to suggest that it is perfect; rather it serves to indicate that this problem of a tyranny of the majority is not new to us and needs to be properly accounted for. One way of course is to have an overhaul of the constitutional framework, an argument valiantly pursued by many Zimbabweans in the last decade. This is why constitutional reform should form one of the first projects in the aftermath of the March 29 elections. The other, perhaps more urgent imperative is for whoever wins on March 29 to set in motion a government that will be more inclusive, regardless of political party allegiances. Little, perhaps, may be expected of Mugabe in this regard, but, surely, Makoni and Tsvangirai should be able to find some accommodation. With due respect, Langton Towungana is not likely to add much to the process. The result will split votes three ways, between Mugabe, Makoni and Tsvangirai and whoever wins will have to contend with two sets of opponents who will form a minority, which could be as large as 49%. Surely, instead of creating a potential tyranny of the 51% factional majority, as our current system envisages, there could be a workable solution that takes into account the minority? A more inclusive system is likely to unhinge opportunities for stability, economic recovery and indeed rebuild the culture of tolerance. Most of all, such a system is more likely to provide the best possible environment for vital constitutional reform. Alex Magaisa is based at Kent Law School, UK and can be contacted at wamagaisa@yahoo.co.uk