Understanding Hichilema’s ‘threat’ to delay Zambia’s 2026 election- Sishuwa Sishuwa

Understanding Hichilema’s ‘threat’ to delay Zambia’s 2026 election

By Sishuwa Sishuwa,
15th September 2024

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On 13 September 2024, President Hakainde Hichilema addressed parliament in fulfilment of Zambia’s constitution that requires the president to address the National Assembly every year and provide a report on the progress made in the application of the national values and principles. These values and principles are morality and ethics; patriotism and national unity; democracy and constitutionalism; human dignity, equity, social justice, equality and non-discrimination; good governance and integrity; and sustainable development. During his address, Hichilema made a series of revealing and largely off-the-cuff remarks on constitutional reform that are worth quoting at length:

“The country has failed to reach consensus on this very important national document over many years. As a country, therefore, we still need to reform our constitutional order to ensure that it is truly reflecting the aspirations of our citizens. Given the substantial work that has already been done in the past, this government is committed to facilitate a least cost, efficient, and credible process [of constitutional reform] to address lacunae, omissions, or oversights in our constitution. So, we are looking at this House to be supportive of a process that would be least cost, that will be time conscious, that would not lead to allowances and more allowances and sittings and [more] sittings. And this House is the one that should help us. After all, some of your constituencies are too big. After all, I don’t understand the wisdom of how (sic) Members of Parliament were taken out of the Council Chambers. After all, some lacunae can lead us to a situation where we could have no general election for eight years. That is not a joke. Yes, we could have no elections for eight or nine years. Those lacunae sit in the constitution. So, those who designed or signed off that constitution, I am not sure what they were intending to do.”

Many organisations and individuals have since condemned Hichilema’s remarks. Former president Edgar Lungu described the comments as “reckless” and urged Zambians to “wake up and stop this apparent dictator from tampering with our Republican constitution in order to extend his stay in power even when he has lamentably failed to improve the lives of the people.” Several opposition parties accused Hichilema of lacking understanding of the constitution and attempting to distract attention from the real issues that affect ordinary Zambians such as mass hunger, the cost-of-living crisis, and the 21 consecutive hours of load shedding per day.

This condemnation is necessary, but not sufficient. Zambians also need to understand why Hichilema is making such comments. Contrary to what some of his opponents have argued, the president’s implied threats to extend his stay in power were neither random nor a result of ignorance of the law. Hichilema has a proven record of undermining democratic institutions in a crude manner. If Zambians wish to reclaim their democratic institutions and space, they will do well not to underestimate Hichilema and the lengths to which he is prepared to go in his bid for absolute power. His warning that Zambia could have no general election for eight years should be seen as part of his wider strategy to stay in power beyond 2026.

President Hichilema’s remarks were directed at different audiences for different objectives.

Preparing the public’s mind

The first targeted audience was the public. His objective here is to prepare the minds of Zambians to accept both his U-turn on a major policy issue and the changes that his administration plans to make to the national constitution on the understanding that the exercise would be cheap, time efficient, and result in the removal from the constitution of problematic clauses that have been the subject of criticism. A brief discussion of the wider context that preceded Hichilema’s comments is crucial to understanding this point.

Over the past year, some opposition parties and prominent individuals have repeatedly accused the government of scheming to amend the constitution to, among other objectives, extend presidential term limits from five to seven years and remove the requirement that a winning presidential candidate should secure a minimum of ‘50 per cent + 1’ of the total vote. For instance, in October 2023, eleven opposition parties wrote a joint open letter to Hichilema in which they criticised the secretive commencement of the constitution-making process. “We are alarmed that there are secretive efforts aimed at amending the Republican Constitution in which people are being asked to submit recommendations on non-contentious issues”, the letter read in part. It continued: “Given the lack of criteria on what constitutes non-contentious, we do not think that these non-transparent efforts represent the best way of carrying our constitutional reform forward, unless the objective is to remove popular clauses such as that relating to the running mate and the 50+1.”

More recently, in July this year, Lungu, who presided over the 2016 constitutional amendment, repeated these assertions, urging “Zambians to stand up and oppose any arbitrary attempts to defile and rape their Republican constitution… to oppose and stop President Hichilema from taking Zambia back to autocracy and tyranny through these UPND arbitrary schemes to alter our constitution only to suit their agenda.” These allegations prompted President Hichilema to finally respond on 2 August 2024. In a statement issued by his spokesperson, Clayson Hamasaka, Hichilema assured Zambians that he has absolutely no plans to alter the country’s constitution. As well as criticising “the emotive debate and the distorted narrative being peddled by the opposition to the effect that government wants to embark on a secret constitutional review process”, the president vowed that he will “continue to uphold and defend the constitution” and touted his lack of “interest in manipulating it for… personal benefit”.

This reassurance earned Hichilema plaudits from many people including the highly regarded constitutional lawyer John Sangwa. In a letter to the president dated 8 August 2024, Sangwa made profound observations that are worth quoting at length, including the point that successive Zambian governments are addicted to amending the constitution:

“I take this opportunity to commend you for clarifying your position on the allegation that you intend to amend the certain provisions of the Constitution ahead of the 2026 general election. Your statement…that you: (a) ‘swore to uphold and defend the Republican’ (b) ‘remain resolute to defend the constitution’ and (c) ‘have no interest in manipulating it (the Constitution) for his (your) personal benefit’ is commendable. The clarification, coupled with the fact that after nearly three years into your presidency no Bill to amend the constitution has been published, is noteworthy. It represents a radical departure from what we have witnessed in the last sixty years. Since independence in 1964, all your predecessors either initiated or continued the process to make a new constitution or amend the constitution. Their motivation, invariably, was the desire to use the constitution as a political tool to further their personal benefits. They prioritised their interests over those of the Republic. It is laudable that you have so far not succumbed to his temptation.”

Sangwa’s letter continued:

“Any person that seeks the office of President who believes that the fulfilment of his promises to the people, once elected, is dependent on the amendment or making of a new constitution, does not deserve to be re-elected. The promises to the people must be made within the confines of the constitution as it is and not as it ought to be…. Your primary focus, Mr President, should be to address the pressing economic, social, and political challenges facing the Republic. So far, there is no evidence which shows that the Constitution, as it stands, hinders, or undermines your ability to fulfil your campaign promises. Your additional obligation must be to ensure that your commitment to ‘uphold and defend the Republican constitution’ is not just a slogan. You must respect the constitutional limitations on your office and ensure that the Zambians who voted for you and those who did not are: (a) treated equally; (b) afforded the same opportunities” and (c) enjoy the rights and freedoms enshrined in the Constitution. In short, you must do better than your predecessor.”

This is the wider context within which Hichilema’s latest comments should be understood. By claiming that “we could have no general election for eight years”, Hichilema is both finally confirming that he will, like his predecessors, take to parliament a constitutional amendment bill that would alter the current constitution ahead of the next election. The objective was to announce this major U-turn using the least embarrassing platform and initiate public conversation on his new position using his set agenda: the process that would inform the content, the mobilisation of resources required to undertake the exercise, and the timing.

The reference to ‘the substantial work that has already been done in the past’ constitutes a public disclosure of how Hichilema intends to go about this exercise. He may ask the Minister of Justice to lead the process or appoint a small team of ruling party sympathisers to undertake the amendments using previous reports of constitutional review commissions or identify the so-called non-contentious clauses that must be revised. Both routes may result in the publication of a constitutional amendment bill.

The talk about controlled allowances and sittings is a strategic way of pre-empting public opposition to the exercise on account of the huge costs involved – especially at a time of more pressing national concerns – by suggesting that cost-saving measures will be adopted. The emphasis on efficiency is meant to prevent potential public criticism about the timing: with less than a year and a half remaining before the dissolution of parliament in readiness for the 2026 election, can the exercise be completed in time? Hichilema is suggesting YES because it would be – in his words – time-conscious.

Mobilising Members of Parliament

The second audience Hichilema was speaking to are MPs from the governing UPND, opposition parties led by the Patriotic Front (PF), and the Independents. On this front, he has three objectives.

Firstly, through his comments, Hichilema was effectively encouraging the MPs to imagine an impossible scenario where a general election is repeatedly postponed for eight or nine years. To avert such a scenario, the president was pleading with MPs to support his planned changes to the constitution in order to ‘straighten’ specific provisions that currently require the cancellation of an election whenever a validly nominated candidate resigns from the race before the date of the election.

Here, it is important to briefly discuss the three grounds on which an election can be postponed: death, resignation, or disqualification by court. Article 52 (6) of Zambia’s constitution provides that “Where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.”

In June 2023, the Constitutional Court ruled – in the case of GEARS Initiative Zambia Limited v Electoral Commission of Zambia and the Attorney General – that although this provision does not apply to an independent candidate, the ECZ is obligated to cancel the election in instances where the candidate who has died, resigned, or been disqualified after the close of nominations but before the election date was sponsored by a political party. This, the court added, is meant to ensure that the affected political party is not disadvantaged by circumstances beyond its control. To avoid misinterpreting what the Concourt said, it is worth quoting its ruling at length:

“When a political party’s candidate resigns from the political party [that sponsored their nomination for election to a given office], that candidate’s nomination is invalidated as the candidate can no longer represent that political party in that election. The political party therefor must be given another opportunity to field another candidate for the election which is why the ECZ is required to cancel the nominations and call for fresh nominations from eligible candidates before the election can be held in terms of Article 52 (6) of the Constitution… For the avoidance of doubt, we wish to state that in terms of Article 52(6) of the Constitution, where a political party sponsored candidate for election as a Member of Parliament resigns after the close of nominations but before the election date, the Electoral Commission is obligated to cancel the election and call for fresh nominations from eligible candidates and call for fresh elections in accordance with Article 52(6).”

The implication of this judgement is that a general election cannot be postponed on account of the resignation, death, or disqualification of one candidate – even if sponsored by a party – who had been validly nominated for election to any public office. Article 266 of Zambia’s constitution provides that “general election” means “Presidential, National Assembly and local government elections when held on the same day”. The Constitution also states that “A general election shall be held, every five years after the last general election, on the second Thursday of August.” This means that if a parliamentary candidate dies, is disqualified, or resigns from the political party that sponsored them to parliament after the close of nominations but before the election date, what would be postponed is only the election in the affected constituency. All other elections – presidential, national assembly and local government – will proceed.

Similarly, if a presidential candidate died, is disqualified, or resigns from the political party that sponsored them to parliament after the close of nominations but before the election date, what would be postponed is only the presidential election, not the parliamentary or ward elections. Even then, the cancellation of presidential election itself would be followed by the filing of fresh nominations by eligible candidates and the holding of a new election within the next 30 days.

Triggering the postponement of the general election after the close of nominations but before the election date would require the death, resignation, or disqualification of a presidential candidate AND at least one candidate sponsored by a political party in ALL the parliamentary constituencies and ALL the wards in Zambia. The prospect of this calamity happening, let alone for eight years, is exceedingly remote. By asking MPs to support his planned constitutional changes using the threat that failure to do so could delay the general election for as long as eight years, Hichilema is demonstrating his desperation to change the constitution. The question is: what is in it for him? The simple answer is EVERYTHING. As well as lacking the capacity to manage the magnitude of the national challenges that confront him, Hichilema is realising that he is unlikely to fulfil his campaign promises and secure re-election on merit. As a result, he seems to have decided that the surest way of guaranteeing his stay in power is by manipulating the constitution to secure political advantage. If he was confident of delivering his promises, he would not be making the kind of desperate manoeuvres he has now resorted to.

In any case, Hichilema’s opposition to Article 52 (6) demonstrates his opportunism or inability to stick to one position. In opposition, the UPND leader supported the very constitutional provision he is now opposing, stating in early 2021 that Article 52 (6) is ‘in good faith’: “That article protects citizens from having a president who is an imposter, who does not qualify. That article is in good faith. If the election is postponed for 30 days to remove an imposter from the ballot paper, [that is] perfect. 30 days is fine for me. If 30 days are a price (sic) we have to pay in order for the people of Zambia to get a leadership that will…end violence, corruption, a leadership that will bring credibility and restore the Kwacha, stop people [from] sleep[ing] without food, 30 days is a good price to pay.”

What exactly does Hichilema believe in? How has the same constitutional provision that he previously defended as a necessary check become problematic today? Moreover, even his attempt to blame his predecessor for the passage of the 2016 constitutional amendment represents a needless attempt to apportion blame and escape responsibility. This is because the amendment was a bi-partisan affair that was supported by both PF and UPND MPs. Without the support of MPs from Hichilema’s party, the 2016 amendment could not have passed. In fact, Hichilema’s assertion that Zambians have previously “failed to reach consensus on this very important national document over many years” is incorrect. Both the 1991 and 2016 constitutional amendments were products of consensus.

In 1991, for instance, the ruling United National Independence Party and the opposition Movement for Multiparty Democracy came together to produce a constitution that was meant to facilitate the holding of the elections. Both parties reached a general agreement that after the election, they would work on a new constitution-making exercise, which is how the John Mwanakatwe Commission came about. However, after former president Kenneth Kaunda returned to active politics in early 1995, the MMD abandoned the agreement and settled for an amendment to the constitution that excluded Kaunda from running for office. After Levy Mwanawasa came to power in 2002, he attempted to complete the constitution-making exercise by appointing the Willa Mung’omba Constitution Review Commission.

Unfortunately, Mwanawasa died in office and his successor, Rupiah Banda, botched the process. When Michael Sata came to power in 2011, he attempted to complete the exercise by appointing the Annel Silungwe Technical Committee, whose draft constitution provided the basis on which the PF and the UPND reached consensus to pass the 2016 constitutional changes that were a product of wider public assemblies at district, provincial and national levels. Hichilema will do well to acquaint himself with the accurate history of constitution making in Zambia.

Secondly, Hichilema’s speech seems intended to use bribery to secure the support of MPs who may be unconvinced by his scaremongering prediction. To pass in Zambia’s 167-member National Assembly, the planned constitutional amendment bill would require at least two-thirds support (at least 111 MPs). This is a tall order given the current composition of party representation in parliament.

The UPND has 93 MPs – 85 directly elected and 8 nominated ones. The main opposition PF has 58 MPs. There are 13 independent lawmakers, seven of whom are working closely with Hichilema. Even with the combined support of all UPND MPs, most independents, the deputy speaker (the Speaker cannot vote) and the one MP belonging to a small opposition party that tends to support the ruling party, Hichilema would still require the backing of several PF MPs. To induce these legislators to support the bill, Hichilema has dangled a carrot in front of them by promising to deliver three specific changes – delimitat