The Sunday Mail
We often hear about the saying that “the law is an ass”, and it is often expressed where there is conflict between what the law says and what individuals or groups desire.
The phrase has a long tradition of use and there have been attempts to establish its historical origins. Many sources point to English author Charles Dickens, who published his famous book, Oliver Twist, in 1838.
When a character in that book, a Mr Bumble, who is the unhappy husband of a domineering wife, is told in court that “. . .the law supposes that your wife acts under your direction,” he replies: “If the law supposes that,” said Mr Bumble, squeezing his hat emphatically in both hands, “the law is an ass — an idiot.”
Dramatist George Chapman had earlier, in 1654, in the play “Revenge for Honour” used the phrase “law is an ass” in the following terms:
“Ere (before) he shall lose an eye for such a trifle…For doing deeds of nature! I’m ashamed. The law is such an ass.”There is contention around the ownership of the play, though, with one site explaining that Chapman’s play was registered as The Parricide or Revenge for Honour to fellow playwright Henry Glapthorne.
Some scholars contend that the play was the work of neither gentlemen and was written around 1620. But that is beside the point, the point is that all too often people find themselves questioning the law when their interests, even fleeting, are threatened.
Here they find the law rigid and stubborn as a donkey (ass is American colloquial for donkey, by the way). It brings one to another truism attributed to Marcus Tullius Cicero, (January 3, 106 BCE – December 7, 43 BCE) who was a Roman Senator.
The quote that “We are in bondage with the law in order to be free” is attributed to this man. He is widely acclaimed with one scholar calling him, “an unknowing architect of constitutions that still govern our lives”, while another felt that “All ages of the world have not produced a greater statesman and philosopher combined.”
According to one source, so influential was Cicero’s idea of natural law that he is considered “the great transmitter of Stoic ideas from Greece to Rome — Stoic natural law doctrines — helped shape the great structures of Roman law which became pervasive in Western civilisation.”
Voltaire said: “He taught us how to think.”
We are in bondage with the law in order to be free! The statement appears contradictory — it is an oxymoron — but it holds deep truths about the law. With elections on the horizon, Zimbabwe finds itself in a situation where it has to contend with what the law says and what contending interests are at play.
In particular — and this is the focus of this piece — the institution of the Zimbabwe Electoral Commission has come under increasing pressure from political interests as we head toward July 30. ZEC is a Constitutional body — one of the independent commissions set out in Chapter 12 of the Constitution — mandated to conduct elections in Zimbabwe.
It’s main operating law is the Electoral Act, which is defined as, “An Act to provide for the terms of office, conditions of service, qualifications and vacation of office of members of the Zimbabwe Electoral Commission, the procedure at meetings of the Zimbabwe Electoral Commission and the appointment of the Chief Elections Officer; to make provision for the registration of voters and for the lodging of objections thereto; to provide for the preparation, compilation and maintenance of voters rolls; to prescribe the residence qualifications of voters and the procedure for the nomination and election of candidates to and the filling in of vacancies in Parliament; to provide for elections to the office of the President; to provide for local authority elections; to provide for offences and penalties, and for the prevention of electoral malpractices in connection with elections; to establish the Electoral Court and provide for its functions; to make provision for the hearing and determination of election petitions; and to provide for matters connected with or incidental to the foregoing.”
This paragraph sets out the A-Z of how elections are conducted in terms of the law and the mandate and functions given to ZEC.
Further guarantees of independence of ZEC and tenets that must guide it in the conduct of its duties are set out in the Constitution. ZEC’s officers are guided by regulations and operate with integrity, failure to observe which will lead to their removal.
In all this, ZEC is guided by the law.
What we have lately in Zimbabwe is that some political players want ZEC to act in a manner that is not provided for in the law.
There was a chance for Zimbabweans to have input on laws that govern elections and the operations of ZEC within the ambit of Legislature, or Parliament.
Parties with representations in that House could recommend and find consensus on the needful changes. However, we know that some parties decided not to participate or were outnumbered, which should not worry us as it is part of our representative democracy.
Even when ZEC decided to engage political parties, their efforts were sullied by disruptive behaviour. Now, the same people who did not make the difference at various platforms provided for by the law and indeed as accommodated in political processes which ZEC actually acceded to, are crying the loudest. That is uncalled for. ZEC must continue doing its work. After all, it has not broken any laws. It has to stick to the law — and we are happy because the law cannot be changed at a whim or for expedience. That’s the beauty about this ass called the law! Let us all appreciate this bondage with the law and save our institutions.
Makonise Takavada is a writer, analyst and critic based in Harare.