Dismissing Tembo’s tribalism case is perilous for the ConCourt
By John Phiri
Is a sober debate possible on the subject of Sean Tembo’s petition in the Constitutional Court regarding the alleged tribal and regionally based appointments in the public service? It ought to be.
Of course, there shall be teams of lawyers to represent the two sides that shall be engaged in this legal tangle contrived by Tembo, the Patriots for Economic Progress (PED) President. They will argue for and against Tembo’s petition, and the Constitutional Court will give its verdict.
However, there are other public interest issues that Tembo has raised, whose reverberations could well forever change the landscape of Zambia’s politics, especially his “constitutional framing” of the debate on tribalism and regionalism in Zambian politics.
Hopefully, the Constitutional Court will, this time, not seek an escape route judgment, but rather ensure the constitutional matters raised are addressed unambiguously, and in a manner that helps the society going forward.
Whether Tembo’s petition is successful or not, he will have become the first person to, not just verbalise accusations that President Hakainde Hichilema is practicing tribalism, but also for having taken it a step further to instigate a constitutional inquisition on whether the conduct of the Head of State has offended aspects of national values adopted in the Constitution of Zambia of 2016.
By this petition, Tembo will also have forced Zambian society to take a serious look at the values and principles, through the Constitutional Court, and help determine to what extent they are enforceable. From another angle, it is a chance to take note of what constitutes violation of these national values.
And indeed if a sitting President is found to be guilty of violating these specific values under Article 8 of the Constitution, does this make him liable to be punished , and in what ways?
Another facet of this case brought by Tembo is that it is yet another test for the Constitutional Court judges, who have previously not really distinguished themselves by their judgments.
The judges are faced with the prospect of situating the festering undercurrent of tribalism and regionalism being alleged in government appointments within Zambia’s yearning for a widely representative public service, as espoused in the national values embodied in the Constitution.
IF the Constitutional Court shirks its responsibility by employing clever legalese, the consequence might turn out to be a bigger problem that could pose a major threat to the stability of Zambian society down the line.
Well, here is the case.
In his case Tembo alleges that since he was inaugurated, President Hichilema has made systematic remarks which are divisive to the nation, and were calculated to promote tribalism and regionalism. made decisions that are divisive and are calculated to promote tribalism and regionalism.
The PEP President further states in his Petition that systematic biased actions by President Hichilema and his government in appointing individuals to specific key national positions on tribal and regional lines are also divisive, do not promote national unity and cohesion, and contravene Article 8 of the Constitution (Amendment) Act 2 of 2016.
The said systematic remarks and biased appointments on tribal and regional lines portrayed President Hichilema as lacking dignity and integrity and contravened articles 8(b), 91(3)(c) and 92(1) of the Constitution of Zambia.
Tembo noted that Zambians had included in the Constitution values and principles of national unity, human dignity, equality, non discrimination and good governance in Article 8, which reflect historical, economic, social cultural and political realities and aspirations that are critical in building a robust and patriotic nation.
To put his Petition in perspective, Tembo observed that the Constitution, in Article 91(2), as read together with articles 92(2)(f) and 185(c), vests the President of the Republic of Zambia with executive authority to perform executive functions, which includes the power to appoint and confirm persons to public office and Article 266 has provided definitions of what constitutes public office and public service.
“In exercise of the executive authority to appoint, Article 91(3) of the Constitution mandatorily requires the President to respect, uphold and safeguard the Constitution so as to enhance the unity of the nation and respect the diversity of the different communities of Zambia.
But, according to Tembo, since his election, President Hichilema has directly or indirectly acted in a manner that seeks to undermine and disadvantage the northern region made up of Northern and Luapula provinces and the people who hail from these areas, and also the eastern region made up of Eastern and Muchinga provinces, and the people who hail from this region wherever they may be located across the country.
He has also itemised how PResident Hichilema has systematically perpetrated this tribal and regional agenda through public utterances and actions.
These include the remarks by President Hichilema on 7 November 2021, at Kenneth Kaunda International Airport, that “the hegemonists did not want this country to be run by anyone else other a clique of thieves like themselves….”, which allegedly referred to all the previous six presidents and had regional connotations and could not promote national unity and cohesion.
On regionally biased appointments to defence and security wings, Tembo said that after being sworn in, President Hichilema dismissed all heads of defence and security wings, and proceeded to appoint individuals who do not represent the regional diversity of Zambia.
“..None of the current heads of defence and security wings are from the northern or eastern regions, which your Petitioner shall aver at trial that the said appointments by the President have tribal and regional connotations and do not promote national unity and cohesion.”
Tembo also alleges regionally biased appointments at the Ministry of Justice and in the Judiciary by appointing people to key positions who include the Minister of Justice, Attorney General, Solicitor General, Chief Justice, Chairman of the Judicial Complaints Commission, and Judicial Service Commission.
President Hichilema is also alleged to have made regionally biased appointments at Permanent Secretary level, where less than 15% of individuals at this level were from northern or eastern regions, which is disproportionately low in the light of the composition of people from these two regions in the population of Zambia.
The same goes for regionally biased appointments of heads of quasi-government and parastatal organisations including Bank of Zambia, Industrial Development Corporation, ZESCO, ZAMTEL and ZICTA, which were skewed against Zambians from the northern and eastern regions of the country.
As noted in Tembo’s Petition, these charges of alleged tribalism and regionalism in appointments made in the public service are not entirely new. Socialist Party President Fred M’membe had an elaborate article raising alarm about the matter.
Tembo has simply raised this alarm a notch higher by formalising them into a Petition before the Constitutional Court, in the hope that its outcome can help end this alleged dodgy reverse tribalism and regionalism
It is now up to the Constitutional Court to consider this case and determine it in a manner that empowers Zambia for the future. To do this the Court must not be shy away from the political flavour around the case.
As Tembo says in his Peition:
“The Constitutional Court has been given a specific mandate under Article 118(2)(f) as read together with Article 128 of the Constitution to promote and protect the purpose and principles of the Constitution and that in exercising its jurisdiction, this Court should be guided by the principles set out in Article 267.”
The ConCourt has previously frittered away several opportunities for landmark guidance, leading some within the legal fraternity to question the qualification of some of its judges. This presents a good opportunity for its redemption.
The outcome of this case will also determine whether the said values and principles embodied in the Zambian Constitution will be taken seriously going forward.
ends