By Dr. Munyonzwe Hamalengwa.
I am submitting a legal and political opinion to the ECZ through this forum that if what is quoted in the News Diggers Paper of September 16, 2021 front page accurately quotes the words and aims of President Lungu, he must be barred from running in the 2021 elections and must as well be impeached immediately as posing grievous and present and indeed continuing danger to democracy in Zambia as enshrined in the 2016 constitution that he signed. Indeed if the above noted paper quoted Lungu accurately, he has already committed the crime of treason which I deal with at length below. Do not forget his past violations of the constitution as well.
Lungu is quoted as stating that the UPND will never rule Zambia. This means Lungu has plans with malice aforethought to violate the constitution in order to ensure that the UPND does not win any elections in his lifetime. It can mean any number of things that Lungu can do to ensure he achieves his malice aforethought objectives: assassinate the UPND leaders, fabricate criminal charges and get his judiciary to wrongfully convict them, cause chaos and violence in order to disturb Zambia and continue to illegitimately rule, engineer a coup de tat from above and most plausibly rig the 2021 elections as he did with the 2016 elections and cause his judiciary to dismiss the petition and related diabolical actions, all of which are criminal. Right now Lungu is immune from prosecution in Zambia despite his massive ongoing violations of the rule of law and constitutionalism but he is not immune from prosecution by the International Criminal Court.
Right now constitutionally speaking, despite the ConCourt ruling of December 2018, Lungu is not eligible to run for a third term. He has held office twice. The ConCourt decision is tainted as it rephrased the question to suit a predetermined decision in favour of Lungu and it mangled the application of the 1996 transitional provisions under which Lungu was elected and applied at the time of the 2016 elections. If there was another court above the ConCourt, its decision would have been laughably laughed out of court and reversed among other infirmities. A fuller analysis awaits. Lungu knows he doesn’t qualify as all learned people in matters of the constitution and hence the attempt to forcefeed the Bill 10 coup de Grace on Zambians.
Lungu means what he is saying and that is why he is the most dangerous President Zambia has ever had and his impeachment and debarment must be pursued vigorously inspite of the disabilities of the relevant judicial hierarchies. A loss can be a victory in the court of public opinion.
This is perhaps the third time Lungu has publicly stated that the UPND will never rule Zambia. In private, I am sure he has said it many more times. He is also heard in a video-tape saying, “We did not get the vote in 2015. We did not get the vote in 2016 but we are still here. If we don’t get the vote in 2021 we are not moving out”. So the evidence for removing Lungu from the 2021 ballot is his own declarations which have been consistent and recorded in various mediums.
Lungu has violated the constitution and he intends to continue violating the constitution and cling to power because he knows what awaits him when he loses power. If elections were to be held today, Lungu would lose miserably and the next week or so he would be in a jail cell unless all the illegitimate wealth he amassed in a short time is returned to the public and other concessions which are still possible if he owns up to his criminality. This is my opinion.
In fact, Lungu doesn’t deserve to be in power. He is there through corruption and bribery of the electoral laws of the country. He has said numerous times that people who don’t vote for the PF will not see development in their areas. That is bribery and corruption which must lead to the setting aside of any PF victory in the country or affected constituency. When it is said by an ordinary PF it wouldn’t carry much weight as when it is said by the Head of State who carries and dispenses Kasaka ka ndalama. This is just one instance of how the PF has stayed in power by frightening people with deprivation of development as if they are not Zambians. If Lungu utters this statement again from now onwards, the statements should be recorded and used in court to set aside the election obtained through bribery and corruption and the attendant violence. The violence in Zambia is PF violence. And the violence-in-chief in Zambia is known no matter what the spreading of the mist to disguise its sources.
Just the statement that UPND will never rule in Zambia is so ominous that it is all that is required to remove Lungu from the 2021 ballot and from the Presidency of this beautiful country. Lungu is not grateful that Zambians gave him an opportunity to govern them as an accidental President. But all he has done is to abuse that trust and privilege. Lungu is unfit to govern.
Look at the violence inflicted on the UPND vehicles in northern province by PF cadres and Lungu has said nothing, meaning he condones the violence. That is what he intends to do from now onwards. Zambians must not permit this destruction of our democracy by an accidental president supported by a few accidental ministers and cadres.
I now turn to Treason. Lungu has committed treason.
There is no reason whatsoever why theft of an election in any country, through rigging, with incontrovertible evidence proving the same, should not attract the charge of treason. In the case of Zambia, the parent charge of treason is under Section 43 of the Penal Code. Analogous sections of this are found in other countries’ criminal statutes. Stealing an election through rigging involves an unlawful, illegal and massive unconstitutional violations of the constitutional and electoral laws of the country to alter the coming into power of a legitimate government chosen by the people. Theft of an election is a fraudulent usurpation of power by an illegitimate government that has been turfed out of power by the country’s voters. It is a coup d’état to unconstitutionally and illegally cling to power by the incumbent government. The fact that there is initially no violence, a term which is used interminably in Section 43 of the Penal Code, is immaterial as violence is embedded in the very act and fact of rigging an election. Violence is part of the plan to enforce the acquiescence of the population should the rigging be exposed and fought against. And violence can consume the nation in the aftermath of a rigged election as we saw in Ivory Coast, Kenya (2007/08) and elsewhere. In the case of Zambia, individuals were arrested and accused/charged of fomenting violence by trying to resist and expose evidence of rigging. Thus violence is implicated and is part of overt acts in the enforcement of rigging an election.
In the Edward Shamwana treason case in Zambia, no violence was actually used, but it was part of the plan and even though no violence was used, Shamwana and others were convicted of treason. Those who know about the plan to illegally overthrow the government but who don’t divulge those plans to the authorities can be convicted of misprision of treason. In the case of election theft through rigging, directly or circumstantially have knowledge that rigging is underway.
The result of election theft by rigging is that you have an illegitimate government that does not have the mandate to rule just as you would have a government that took power by force. There is no difference.
Election theft by rigging has grievous aggravating factors and must constitute treason. A coterie of individuals with planning and deliberation aforethought, sometimes over a lengthy period of time, organise to engage in overt and covert actus reus (action) with requisite mens rea (intention) to violate the constitution and electoral laws of their country. Some of these individuals who participate in the conspiracy to violate the constitution and electoral laws of the country, would have sworn on the Holy Book to follow and uphold the constitution and laws of the country. But here they are, violating the very oath, constitution and laws they had sworn to abide by and enforce. There can be no greater betrayal of the constitution and laws of the country than what is involved in election theft by rigging. This is treason.
Theft of an election by rigging engages the coincidence of actus reus (the doing) and mens rea (intention) to violate the law and is complex. It is not as inept as Captain Solo waking up one day and deciding that he was going to have fun that day at the main radio station! Rigging can be sophisticated and involves many people: the army, the airforce, the police, ministries, civil servants, the judiciary, the Presidency, diplomats, banks, immigration, transporters, printers , newspapers, and many other entities and institutions.
Sometimes it involves the registration of foreign voters by issuing them the country’s primary identity cards like National Registration Cards. It involves conniving with foreigners to print ballot papers some of which are pre-marked or that are easy to manipulate. Rigging involves training and facilitating individuals, sometimes foreigners to manipulate computers and election technologies in favour of the regime in power to enable it to cling on to power. Theft of an election involves stationing cadres at voting points to intimidate and engage in violence against election monitors or the opposition. Theft of an election by rigging involves destroying the opposition’s votes and inflating that of the party in power. Election theft by rigging involves using the army and police and government ministries and infrastructure to deprive the citizens of the benefit of installing a legitimate government of their choice. This is as treasonous as it gets. Theft of elections through rigging must be criminalized as acts of treason. That should act as deterrence.
President Lungu must be barred from contesting the 2021 elections. He is a danger to democracy in Zambia. He has said it with his own mouth that he intends to destroy Zambian democracy.
We cannot let an individual to destroy our hard won democracy just like that, an individual whose actions are purely to save his own skin because of the atrocities he has done to democracy in Zambia and fearing that justice will be visited on him. Lungu is not worthy sacrificing anyone’ s life and blood over. Zambia is bigger than any one individual or party or institution. Zambia does not equal Lungu, Kampyongo, Kanganja, Chama, Nawakwi, Mwila, Chilufya, Mumbi, Lubinda, Chitotela, Mbewe, Musankwa, Zulu, Rupiah Banda, Siliya, Sikwazwe, a few judges and the inner gang including defence and security agency heads.
If anyone has an alternative analysis, please submit it to the press for publication with a copy to myself.
Yes Democracy in Zambia is my business as it is for all Zambians under Zambia’s Sky.
Dr. Munyonzwe Hamalengwa is a Senior Lecturer in Law where he teaches Criminal Law, Law of Evidence and Research Methodologies in Law and other subjects.