The people have power, but they don’t know that they do. They think power lies with the politicians. They are merely renting it.
GUEST COLUMNIST ALEX T MAGAISA
The people have to understand that they are the landlords and the politicians are the tenants. This article seeks to explain what should be common knowledge but is often withheld from the people.
That the new year has begun on a sour note is not by itself a major surprise. The numbers may have changed, but the circumstances have not.
There are a number of crucial questions which have emerged over the years. Some answers of which remain elusive. Others are plain, the trouble being that they are ignored.
What is the relationship between the citizens and the State?
People do not seem to appreciate the power they wield over the State. This is probably because the State is often presented as the one that wields power without the source of that power being made clear.
It is also because the State exercises control over policy and law-making functions, but more importantly, over the coercive apparatus, such as the army, police, prisons and intelligence agency. With this manifestation of authority, the State does indeed wield power.
However, unbeknown to most citizens, this power emanates from them. The State derives its power from the people. This fact is recognised in our Constitution. Section 2(f) states that one of the principles of good governance is “respect for the people of Zimbabwe, from whom the authority to govern is derived”.
Furthermore, section 88 provides that “Executive authority derives from the people of Zimbabwe …” Section 117 also makes it clear that “legislative authority of Zimbabwe is derived from the people …” Likewise, section 162 provides that Judicial authority derives from the people of Zimbabwe.
The collective effect of these provisions means the arms of the State exercise their authority on behalf of the citizens. The citizens are the owners of that authority, which they confer and can withdraw as they wish, using constitutional means. The problem is that most people do not realise that they have power.
They see their leaders as the ones with power. They only have it because you have given it to them but you have the right to take it away. Later this year, we shall do a full analysis of circumstances and means by which citizens can withdraw their authority.
What is the nature of the State?
The State is a complex creature. Many people see the government as the State, but it is more than that. The State is traditionally made up of three arms: the Executive, Legislature and the Judiciary.
A French political philosopher, Montesquieu, is credited with the principle of separation of powers, which describes the separation of powers among these three arms.
Montesquieu had studied the British system of government in the 17th Century and thought it represented a separation of powers.
His view of the British system was inaccurate, as the arms of the State are not that separate. Nevertheless, it remains a useful principle which has been the bedrock of many constitutions around the world.
The idea of separation of powers is designed to prevent concentration of powers in one body. Dictators like to centralise power. They want to make the law, administer it as well as interpret it.
This centralisation of power was rejected in Europe, leading to the fall of absolute monarchs. The most famous of these is the French Revolution in 1789. Before it, the English had gone through the Glorious Revolution in 1688.
The fact that centuries later, people around the world are still fighting dictatorship or the threat of it, shows the enduring nature of the problem. Citizens cannot take power for granted.
Once they have handed it over, they have to remain vigilant, because those who hold power prefer to have more of it, all to themselves. They want to control the Executive arm, as well as the Legislative arm and the Judiciary. This is why it’s always important to defend judicial independence.
The problem is when the Judiciary itself is captured. In that case, the citizens are at the mercy of centralised power. They have no one but themselves in their defence.
Limits of law
The law is important, no doubt, but as I have argued before, there are limits to what the law can do. I have often quoted the words of American jurist, Justice Learned Hand, which I find instructive and I repeat them here:
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it …”
It’s a cautionary qualification to what the law can do to help us. Indeed, many Zimbabweans might identify with it, as will many who live under repressive systems around the world.
Much of this repression, ironically, is done in terms of the law; laws that are perfectly passed by legislatures, administered by law enforcement authorities and interpreted by judiciaries.
If you challenge these regimes of violating human rights or the rule of law, they will often point you to voluminous texts and say they are acting in accordance with the law. They will tell you that all decisions were made by the courts of the land. And they will be right.
This is what some critics refer to as rule by law, as opposed to the rule of law. The rule of law is supposed to be the antithesis of arbitrary rule. It is supposed to give higher status to law over the whimsical decisions of the leader. But it can be turned on its head when those whims or arbitrary decisions are given the cover of law.
The distinguished British jurist, Lord Bingham, did not agree with this formalistic view of the rule of law. He espoused and articulated what is known as the substantive rule of law, one which anticipates the recognition of human rights and respects international law. The effect is that if the law does not respect human rights or conform to international law, it falls short of the rule of law.
Our problem in Zimbabwe is not that we do not have a Legislature, a Judiciary or even a law enforcement system. These institutions do exist. But the Legislature is virtually controlled by the ruling party, which has a two-thirds majority.
Parliamentarians across the divide have also not done themselves a favour by appearing to favour self-interest when it comes to benefits, completely insensitive to the plight of the people they represent.
The Judiciary has flashes of independence, but by and large, when it comes to political matters, there is a feeling that it lacks sufficient distance and independence.
Law enforcement authorities often act as arms of the ruling party. This leaves citizens at the mercy of a powerful ruling party, which controls virtually all arms of the State.
When they were making their Constitution, America’s founding fathers understood the problem and sought to design a system of checks and balances between the arms of the State.
One of the founding fathers, James Madison captured this well in The Federalist No 51: “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.”
It is the last bit which is lacking in many systems, including ours. The government likes to control the citizens, but it is unable and unwilling to control itself. We see this in the double-standards it exhibits.
Right now, it wants citizens to pay import duty and other taxes in foreign currency, but it does not want anyone to charge in foreign currency.
The government wants everyone to tighten their belts, but it is unable to curb its spending habits. It can control others, no doubt, but it won’t control itself. This is our major pitfall — lack of governmental self-control.