FULL STATEMENT: The State of Democracy and Governance in Zambia- Archbishop Telesphore Mpundu

Our Civic Duty Association (OCIDA)

●The decreasing public confidence in the Judiciary and an appeal to Chief Justice Mumba Malila.
●We call on Chief Justice, Dr Mumba Malila, to take interest in these cases so that they are concluded timely.

●We are gravely concerned by the conduct of the Judiciary in politically sensitive cases involving the main opposition PF and Mr Miles Sampa including one that stems from the illegal convention that was facilitated by the State on 24 October.

●Another way is for the Chief Justice himself to consider invoking his constitutional powers as an ex-officio judge of the High Court, which allows Dr Malila to sit as a High Court judge and hear the matter himself.

FULL STATEMENT
The State of Democracy and Governance in Zambia

26 December 2023

Merry Christmas and a Happy New Year! As the year 2023 comes to an end, Our Civic Duty Association (OCIDA) wishes to raise the following concerns on the state of democracy and governance in Zambia with the hope that they will be addressed and not repeated in 2024.

The decreasing public confidence in the Judiciary and an appeal to Chief Justice Mumba Malila

We are gravely concerned by the conduct of the Judiciary in politically sensitive cases involving the main opposition PF and Mr Miles Sampa including one that stems from the illegal convention that was facilitated by the State on 24 October.

The conduct of two justices in particular, judge Timothy Katanekwa and judge Chocho Situmbeko, deserve special mention because it leaves much to be desired and risks leaving the integrity of the Judiciary in tatters.

Despite knowing the urgency of the political cases they are handling, these justices have constantly adjourned the cases and consequently helped prolong the state of lawlessness that has affected parliament and risks undermining the multiparty character of our Republic.

We call on Chief Justice, Dr Mumba Malila, to take interest in these cases so that they are concluded timely.

As head of the Judiciary, the buck ultimately stops with him. Our call is extended to the case recently filed in the High Court by Mr John Sangwa against Mr Sampa on behalf of nine affected members of the PF.

The outcome of this case has important consequences on the constitutional order of the Republic including its democratic character.

As a result, we appeal to Chief Justice Malila to take close interest in this matter and ensure that it is concluded in a well-judged and timely manner.

One way of doing this is by making sure that justices Chocho Situmbeko and Timothy Katanekwa are kept away from the latest case since they have already shown a disturbing lack of urgency in handling these cases.

Another way is for the Chief Justice himself to consider invoking his constitutional powers as an ex-officio judge of the High Court, which allows Dr Malila to sit as a High Court judge and hear the matter himself.

Article 133 of Zambia’s constitution provides that “There is established the High Court which consists of the Chief Justice, as an ex-officio judge, and such number of judges as prescribed.”

Former Chief Justice Mathews Ngulube used to invoke these powers under the rule of the MMD especially on time sensitive matters and those whose outcome had a huge bearing on the integrity of the Judiciary. For instance, when then Minister under the MMD government Mr Michael Sata sued The Post newspapers for defamation, Chief Justice Ngulube sat as a High Court judge to hear and determine the matter.

He delivered judgement on 13 February 1995. Ngulube was appointed Chief Justice the year after President Frederick Chiluba’s ascent to power following the resignation of Annel Musenga Silungwe, the country’s first indigenous Chief Justice, at the age of 57.

Although he eventually exited the Judiciary under disgraceful circumstances, Chief Justice Ngulube was, like Chief Justice Malila, initially a darling of the international conference circuit, travelling the world and delivering homilies on judicial independence.

We are appealing to the current Chief Justice to show leadership on this issue because we have complete faith in his competence, professionalism, and integrity.

Justice Malila has a distinguished and admirable track record of moral and progressive leadership in defence of the constitution, the rule of law and human rights. We consider him as above reproach and still retain the hope that he can preside on this matter in a way that both upholds his impressive record and restores public trust in this vital branch of the government at a time when the other two branches are fanning lawlessness especially in the country’s main opposition party. Justice Malila does not have to like the PF to accord the party a fair and timely hearing. His job, as does his character, demands that he must attend to anyone with the same level of professionalism that is required from a surgeon when operating a patient who may have previously ill-treated the same medical doctor.

Our faith in Chief Justice Malila is shared by most Zambians. We remember that except for ACC Board chairperson Musa Mwenye SC, Justice Malila was the only appointee of President Hakainde Hichilema whose appointment to a very senior public office was met with universal acclaim and supported by all Zambians regardless of their political persuasion.

This says a lot about how Zambians view Dr Malila. We urge the Chief Justice not to betray this public trust reposed in him by ensuring that he presides over a judiciary that is truly independent. One way of doing this is by ensuring that only the most competent judges are allocated very sensitive cases whose mishandling can plunge the nation in chaos.

Another way is to ensure that the case is heard and determined expeditiously so that any appeal processes, if necessary, are completed within the course of at least six months.

It would be tragic to drag the matter when it has such important consequences on the present and future of Zambia’s political system.

History shows that the most respected and admired Chief Justices throughout the world are not those who cultivated close ties with the executive or took instructions from the President of their countries but those who proactively used the law as a shield for justice for all.

The case involving eight PF members and Mr Sampa is too important to be taken as any other. This is because its outcome will not only determine the fate of Zambia’s democracy but also have a defining or lasting effect on Dr Malila’s legacy as Chief Justice of Zambia.

Will Justice Malila allow this testing case to tarnish his outstanding record, or would he provide the required leadership that would leave the public extremely satisfied that their absolute faith – and indeed our own – in him was never misplaced?

The continuing violations of civil and political rights

When Zambians voted for President Hakainde Hichilema and his United Party for National Development (UPND), they were sending a clear message that they want to live in a country that respects human rights and upholds the sanctity of our Republic as a multiparty democratic State. during its time in power, the Patriotic Front administration had violated civil and political rights such as the freedom of association, the right to free speech, the right to peaceful public assembly, and the freedom from inhuman or degrading treatment.

We were therefore hopeful that President Hichilema and the UPND would change this culture and restore the country’s democratic tradition. Thus far, the new leaders have been a terrible disappointment on this score. President Hichilema and his UPND have shamelessly embraced the very evil practices they condemned when in opposition.

In breach of the constitutional rights to peaceful assembly and free speech, opposition parties have, since the 2021 election, been denied their right to peaceful assembly. How are political parties that are established by the constitution of Zambia expected to carry out their activities if they are prohibited from holding rallies and interacting with their members? Why is Mr Hichilema doing to opposition parties what the PF did to him and the UPND when in opposition? Was his opposition to human rights violations a matter of sheer opportunism? The Constitution of Zambia allows people to exercise the right to assemble – and indeed any other right – at any time, not just during election periods. When he was asked during his latest press conference to comment on the concerns of many well-meaning organisations such as the Catholic bishops, the Law Association of Zambia, Chapter One Foundation and a host of other civic bodies that the democratic space in Zambia is shrinking even further under his watch, the President missed the opportunity to reassure Zambians that his administration is committed to respecting fundamental freedoms. Instead, he used the question to start talking about himself. What kind of a President is this one who is so obsessed with praising himself?

We have also witnessed a creeping and deplorable culture of arresting senior members and leaders of opposition parties for the most frivolous of charges. Those arbitrarily arrested this year include Mr Chishimba Kambwili (unlawful assembly), Dr Fred M’membe (all manner of political charges), Mr Sean Tembo (all manner of silly charges), Mr Kasonde Mwenda (all manner of silly charges), Ms Edith Nawakwi (frivolous charges), Mr Raphael Nakacinda, Mr Emmanuel Mwamba, Mr Given Lubinda (all manner of frivolous charges such as sedition) and many others too numerous to mention. Why is President Hichilema and the UPND so sensitive to criticism? Zambia is a democracy where people have the right to question their elected leaders. It is foolish for the UPND to expect Zambians to support them when they are doing the very bad things that made the people kick out the PF. If President Hichilema and his administration do not change for the better, we call on all progressive Zambians to do to him and the UPND in 2026 what they did to President Lungu and the PF in 2021.

We also condemn in strongest terms the tendency of ill-treating and even torturing suspects especially members of the opposition during arrests and detention in police custody. The brutalisation of Mr Sean Tembo and Mr Emmanuel Mwamba, for instance, have left a permanent scar on the UPND’s democratic credentials. We hope that the shrinking democratic space we witnessed this year will not be carried over in 2024. When we talk about the shrinkage of democratic space, we are referring to the failure by the state to respect the rights of citizens conferred on them by the Constitution of Zambia. We are not making a comparison with any of the previous administrations. In particular, we call on the Minister of Home Affairs Jack Mwiimbu to prevail over the Zambia Police Service so that they do not interfere with the right of opposition parties to conduct their activities in the new year. We reject as foolish insinuations that the situation in the country is too volatile to allow the opposition to assemble. What has caused this volatility that has lasted two years?

We know that President Hichilema has no clear track record of practising internal party democracy in the UPND and would rather prohibit rallies until the next election for fear that well attended meetings would demonstrate support for the opposition and declining political fortunes for the ruling party. But citizens in a democracy have the right to assemble at any time they choose to and the role of the government is to facilitate rather than prevent the exercise of this right. Any government that prevents the peaceful expression of political activities, such as the holding of public rallies, inevitably invites violent ways of seizing power. We do not want Zambia to descend into this unchartered territory and urge the UPND to respect the civil and political rights that the constitution of Zambia confers on all citizens including those in the opposition.

The widening regional divide in the country

Another area of major concern this year has been the increasing polarisation of the country along ethnic and regional lines. In recent weeks, we have seen the mushrooming of provincial groups such as Kola Foundation and Umodzi Kumawa that those in power have been very quick to dismiss and condemn. We consider these groups as symptomatic of a bigger and inadequately addressed problem: the unequal distribution of development resources and the widening ethnic divide in the country. President Hichilema likes dismissing complaints of ethnic marginalisation as the work of people who did not want him to become president or those who think the presidency should only come from one region. We think this is an extremely simplistic and conceited way of looking at very serious issues of national concern.

We urge the government to call for a national indaba on the ethnic question that would hear the concerns of many stakeholders on this issue and recommend the best ways of resolving complaints of marginalisation. If the people of Eastern Province feel inadequately represented in cabinet and other senior government positions, the solution is not to demonise those who are trying to draw the attention of the government to this concern. It is to identify the main areas of concern and then to dialogue with the representatives of the affected groups so that consensus can be reached. Similarly, if civil servants must daily prove to whosoever, because of their ethnic names or the geographical region where they hail from, that they do not support the opposition, then there is a problem. We urge the government not to be dismissive of these very real concerns or to be quick to enact laws that proscribe complaints of ethnic marginalisation. Rather these concerns should be taken as evidence how some Zambians feel excluded in the governance process, as an invitation for the government to do better, and an opportunity for those in power to bridge the divide between the led and the leadership.

The lack of clear political will to fight corruption

In 2023, we witnessed three disturbing developments that demonstrate a clear lack of political will to fight corruption. The first has been the continuing tendency by President Hichilema to leap to the defence of very senior government officials accused of corruption even before the investigative wings pronounce themselves on the relevant matter. A great example here is the airport gold scandal where the president was quick to exonerate his officials, just like he had done when two of his cabinet ministers were accused of corruption. When the Solicitor General Marshal Muchende was implicated in what appears to be very serious corruption allegations, the President dismissed these concerns and pretended as though they don’t exist. Only today, the nation woke up to yet another corruption-related scandal involving the Minister of Foreign Affairs and International Cooperation Stanley Kakubo. When the same official was previously involved in another scandal, President Hichilema was the first one to clear him of wrongdoing even before the Anti-Corruption Commission (ACC) could institute any formal investigations into the matter. We are almost certain that nothing will happen to Mr Kakubo even this time since he is too close to the President and comes from ‘the correct region’. Those that can easily be sacrificed for dismissal are mostly people from ‘the wrong region’ such as an uncompromising Auditor General, a provincial leader, or one or two State House aides.

The cases of Solicitor General and Kakubo also show the hypocrisy of the ACC. If Mr Muchende and the Minister of Foreign Affairs were opposition officials, the ACC would have quickly arrested both and widely publicised their cases. But since they hail from ‘the correct region’, they are seen by the appointing authority as indispensable and by the ACC, which now sits under State House, as untouchable. Their only ‘punishment’ is a private tea party meeting with the President at Community House. These doubles standards undermine the fight against corruption. They indicate that corruption is not a sackable offence under President Hichilema especially if the affected officials are close to him and come from the correction region. Otherwise, we challenge the President to dismiss Mr Kakubo for the latest scandal. We also challenge the ACC to arrest the Minister and publicise his case the same way they have done with cases involving corruption-accused PF officials.

The second development that shows lack of political will to fight the scourge of corruption has been the tendency by the government to arrest corruption-accused people for show and fail to prosecute them. We have not forgotten how the former Auditor General was dramatically removed from office and yet he has never been taken to court to date. We have not forgotten how the former Permanent Secretary in the Ministry of Finance, who was only transferred from his position to Cabinet Office after much public complaints, has never been taken to court to date. There are other examples too numerous to mention that all suggest that the government is not serious when it comes to the fight against corruption. It is as if the fight against corruption is being done for cosmetic or show purposes.

The third development relates to lack of decisive leadership on corruption by President Hichilema especially when it comes to public procurement and other areas where private business allies of the president appear to be involved. When the public complained about possible corruption involved in the single sourcing of companies like Alfa Commodities and Grizam Fertiliser Suppliers, the President kept quiet. Is President Hichilema a beneficial owner in these companies? Otherwise, why is the President so unconcerned about the very serious corruption allegations levelled against these companies in relation to public procurement? In addition, the President has refused to disclose the value of his asset declarations to date. It is as if he wants to use public office to enrich himself through his many businesses and those of his numerous business associates so that he can finally earn the tag of wealthy man.

Only a crooked and potentially corrupt leader who abhors transparency can refuse to publicise the same information availed to the Electoral Commission of Zambia during the nomination process in May 2021. Only a dishonest and potentially corrupt leader who abhors transparency can hide under the absence of the law on asset declarations as a sufficient reason for refusing to publicise the same information availed to the Electoral Commission of Zambia during the nomination process in May 2021. President Hichilema appears to be too involved in Zambia’s economy as a businessman to fight corruption. This probably explains why a leader who was elected on a ticket of transparency is refusing to publish his assets declarations even on moral considerations. It shows that he has something to hide. The fight against corruption has totally collapsed. The driver has totally disengaged himself. Is it because he is now an active participant?

The continuing abuse of state institutions

Throughout the year, we witnessed the continued abuse of state institutions such as the police, the Registrar of Societies, the Anti-Corruption Commission, and the Electoral Commission of Zambia to achieve partisan objectives. Just like under the PF, the police operate like a private militia group of the ruling party. The Inspector General of Police sounds like a UPND official each time he opens his mouth. It as if he sees his role as primarily meant to serve the ruling party and obstruct the opposition. Opposition parties now require permits to conduct press conferences. Not even the deplorable PF had abused the police this way. The ECZ now behaves like a loyal department of the ruling party, introducing rules arbitrarily and illegitimately knocking out opposition candidates from electoral contests that the UPND risk losing.

The ACC, though led by a competent board, has been rendered useless by the continued interference by State House officials and the failure to arrest high profile UPND figures accused of corruption. As for the Registrar of Societies, Zambians saw for themselves how the former Chief Registrar of Societies Mrs Thandiwe Mhende was unceremoniously removed from her position to accommodate the evil plans of the UPND that we exposed in our last statement. We repeat that President Hichilema is behind the divisions in the PF. The current wrangles in the former ruling party have nothing to do with what happened in 2014 after the death of President Sata; they have everything to do with the involvement of state institutions like the police, parliament led by the Speaker, and the Ministry of Home Affairs led by Mr Jack Mwiimbu. It is very sad that the Judiciary – especially Lady Justice Situmbeko Chocho – has, perhaps out of hatred for the former ruling party, allowed Mr Miles Sampa, the beneficiary of an illegality in form of an illegal convention, to run amok, cause lawlessness, and undermine the multiparty integrity of our Republic using that illegality.

We demand that the Government must strengthen the law that govern the office of the Registrar of Societies to shield it from political interference. We have noted over the years the continued abuse of this office by successive governments. We therefore call on other civic organisations and political parties to exert pressure on the Executive to make changes that would promote the independence of the office of the Registrar of Societies and strengthen its autonomy and decision-making powers.

The tendency by President Hichilema to berate journalists

Apart from very irregular press conferences where he spends much of the time praising himself, the President hardly communicates with the citizenry or with the opposition parties on matters of national importance as he himself had pledged he would do in the UPND manifesto while in opposition. We are concerned at this lack of regular engagement with the people. We know that President Hichilema had pledged to hold quarterly press conferences and appear on radio on a regular basis as a way of maintaining contact with the people but this promise, like so many others he has made, has hardly been honoured. We also condemn the President’s tendency to berate journalists during press conferences as people who have been sent by others to ask questions on their behalf. This paints our men and women of the pen as unintelligent and pawns of third parties. In any case, what is wrong with journalists asking questions on behalf of any citizen of Zambia since we all cannot attend the press conference? Under president Kenneth Kaunda, press conferences were announced way in advance so that journalists could adequately prepare themselves and research on the questions to ask. Under this presidency, press conferences are announced a day, sometimes hours, before the event. And when the journalists turn up, they are crudely patronised and insulted as unintelligent and incapable of original thought. We ask President Hichilema to apologise for demeaning journalists this way. It is equally wrong for the President to prescribe the questions that journalists must ask at a press conference. The President has control over the content that he chooses to share with the public during the press conference, but he must allow journalists to ask any question that they think is of public interest. To restrict them to asking questions that he wants or that only relate to topics he has covered in his formal address is a form of control that should have no place in a democracy.

The President has failed to demonstrate decisive leadership on several issues such as the airport gold scandal, the cost-of-living crisis, the unconstitutional appointment of the Auditor General, the worsening state of democracy and human rights violations, the lack of transparency in the mining deals signed with foreign investors, the lack of capacity to listen to the very serious concerns of different stakeholders on critical national issues such as the clear flaws in the recently signed Access to Information Act, and the many scandals that have rocked his administration especially in the area of public procurement. He has also turned out to be a shameless liar after he promised, when in opposition, to repeal the Cybersecurity and Cybercrimes Act as his first act in office, if elected. Instead of honouring this promise, he has left this Act on the statutes and used the same law that he condemned in opposition to arrest political opponents and reporters like renowned investigative journalist Thomas Zyambo of the Zambian Whistleblower. Journalists have the right to expose this hypocrisy on the part of the president and to demand answers.

It is important for him to allow journalists to ask him questions of these and many other issues of public interest during press conferences. Otherwise, these pressers become meaningless if journalists are only summoned to listen to the president indulging himself in gratuitous self-praise. Journalists are the people’s representatives, and they deserve to be respected by the President. They ask questions not on their behalf but on behalf of the public based on the prevailing issues in the country. Their role is extremely important especially in a context where the president does not communicate the national agenda or vision, has effectively become an absentee landlord due to a seemingly unquenchable desire to undertake costly foreign trips, does not care whether the people approve of what he is doing, and is consequently doing the same things he used to condemn in opposition– undertaking numerous foreign trips while claiming that the treasury is empty and neglecting to share his vison for the country. What kind of hypocrisy is this?

We urge the President and the government to take our concerns seriously. The tendency of dismissing criticism, however constructive, is a terrible habit that led to the removal of the PF from power. The voice of the people is the voice of God. Those who live by the sword will die by the sword.

Emeritus Archbishop Telesphore G. Mpundu
Chairman, OCIDA