Losers' consent and democratic legitimacy

Big Saturday Read: Losers’ consent and democratic legitimacy

Alex T Magaisa

September 22, 2018

As President Mnangagwa began his address on the occasion of the opening of parliament, opposition parliamentarians began to walk out of the legislative chamber. They went outside singing songs of protest. The parliamentary walk-out generated a lot of debate. It was criticised by ruling party supporters as petty and praised by those on the opposite side of the political aisle as a justifiable show of protest. The incident revealed the deep divisions among Zimbabweans, weeks after an election whose outcome is still disputed.

More significantly, however, the walkout symbolised the opposition’s persistent refusal to concede defeat in the presidential election, which it claims was rigged. The reaction of the ruling party supporters revealed great discomfort caused by this refusal. This is important because the response of both declared winners and losers in an election has implications on the democratic legitimacy of the emerging political authority.

In normal situations, where a winner has been declared, the expectation is that the loser would concede defeat. Some political scientists call it “Losers’ Consent”. The consent of the loser in an election goes a long way to support its democratic legitimacy. By contrast, withholding consent undermines or at least raises doubt over the democratic legitimacy of the election and the political system.

In many elections across the African continent, the outcome of elections is often contested by the declared losers, who consequently refuse to give their consent to the election outcome. This becomes a new battleground over which the ruling party has no leverage. It cannot compel the declared loser to give consent. The strongest line of defence for the winner is to show that the loser has no ground to stand on and that their refusal to concede is motivated by malice. This is problematic, however, where third parties, such as international election observers back the concerns raised by the declared loser.

This explains why the political contestation has continued beyond the election. The election failed to resolve the critical question of democratic legitimacy of the political authority which it was meant to deal with conclusively after last year's coup. If Nelson Chamisa and the MDC Alliance had given their consent to the election outcome, the debate would have ended. The issue of democratic legitimacy of the Mnangagwa administration would not arise. However, Chamisa and the MDC Alliance felt aggrieved both by the conduct of the election and the legal process used to resolve the dispute.

For its part, ZANU PF is frustrated by the opposition’s refusal to give its consent. This frustration is because they know the withholding of consent undermines its administration’s democratic legitimacy and without it, it is difficult to open the doors of support that it needs to address the myriad of challenges in Zimbabwe. The opposition is fully conscious of the value of its consent to its rival. Since the losers’ consent is considered critical to the establishment of democratic legitimacy, the opposition’s consent has value to Mnangagwa and ZANU PF. It is a situation where the ruling party has state power but is weak on democratic legitimacy, while the opposition has no state power but holds an instrument that can be used fix the legitimacy deficit.

Democratic legitimacy

There is a view that electoral democracy is essential to the establishment of legitimacy. The legitimacy of a political authority derives from the consent of the governed, a principle which is stated in our constitution. When a political authority is legitimate, it means it has the monopoly to make and enforce rules within a specific jurisdiction and the citizens of that jurisdiction obey the rules without the need for coercion.

In any event, a legitimate political authority would have the monopoly to apply coercive measures in order to enforce those rules. For such legitimacy to be democratic, the political authority must have been selected in accordance with democratic processes, rules and principles. In other words, there is democratic legitimacy when democratic procedures are followed in order to achieve an outcome. A decision is legitimate if it has been reached through procedures that satisfy democratic standards. This is important because it is possible for a political authority to claim legitimacy even where it has been selected through non-democratic means. King Mswati of Swaziland is an absolute monarch but he is the legitimate leader of the kingdom. What he cannot claim is democratic legitimacy.

Elections

Probably the most essential of democratic processes that confirm democratic legitimacy is the election. It is the principal mechanism to select the political authority in a democratic system. In order to confer democratic legitimacy, elections must satisfy certain qualities which include Political scientist, Staffan Lindberg has picked three key qualities as including: participation, competition and legitimacy.

Participation

On participation, Lindberg says a high voter turnout and opposition participation would tend to support democratic legitimacy of an election. By contrast, a low voter turnout and boycott of elections by the opposition would undermine their democratic legitimacy. This is why Morgan Tsvangirai’s boycott of the 2008 presidential run-off election was key in eroding its democratic legitimacy. Indeed, most peers around the world regarded the June 27 2008 as a sham.

A Government of National Unity (GNU) was soon cobbled up in order to fix the deficit in the resulting political authority’s democratic legitimacy. This was because the losers’ consent was widely backed by third parties and the declared winners, Robert Mugabe and ZANU PF, had no choice but to agree to share power with the so-called losers. History was repeating itself as elsewhere on the continent, a similar situation had played out in Kenya the previous year.

There was no opposition boycott in the recent election and the voter turnout was very high, factors which would tend to support participation. However, the exclusion of the diaspora from voting was damaging, with some external observers raising concerns over this exclusion. Lindberg also warns that the presence of the “old guard” from the authoritarian regime can affect the democratic legitimacy of the election. “If current leaders of political parties previously assumed leading positions in authoritarian regimes that placed them above the law, this could be taken as a factor that degrades the democratic quality of the electoral process,” writes Lindberg. While Mugabe was no longer a candidate, ZANU PF was essentially the residue of his authoritarian regime. More critically, the military had a clear presence and interest in the elections. All this affected the democratic qualities of the election.