Newspapers were said to be the first drafters of history. They recorded contemporaneously the events as they purportedly happened. Then came cameras, television, video tapping and cellphones. History is being recorded everyday.
Zambians, however, have been cheated again in terms of contemporary important history. This column discusses this theft of Zambian history.
Zambian history short-changed again. Zambians have again been deprived of seeing their democracy being practised at the highest of levels and evaluating the caliber of their judges and lawyers in praxis at the Constitutional Court made a pyrrhic phantom. Constitutional Court judges and our lawyers have escaped scrutiny once again. Transparency and accountability of our ConCourt judges in discharging their responsibility in upholding the dictates of the Constitution and enforcing its imperatives have been rendered illusionary by the lack of public exposure of what went on in that courtroom during the arguments of the Petition involving whether President Lungi was eligible or not to run for a 3rd term in office. This may have been the most important petition in our lives. It would have afforded Zambians for the first time to see and hear legal arguments by our able lawyers presented to our judges in real time and assess for themselves the evidence and speculate in an informed way how the outcome should be. But nay, the proceedings were not televised, video taped, audio taped or recorded for broadcast or publication seriatim.
It is astounding that such an important legal event was not televised or videotaped or recorded for broadcast in real time or in delayed sequence for the edification of Zambians. We have taxpayer funded TV stations like ZNBC which should have been given access to televise the arguments on the petition. We have taxpayer funded public newspapers like the Times of Zambia and the Daily Mail. They should have serialised the petition, the answer and reply in two days or so for Zambians to read for themselves. The taxpayer funded newspapers should have transcribed the proceedings on a daily basis for Zambians to evaluate for themselves what was going on in the petition process. Instead all we are fed is taxpayer funded ruling party advertisements for which I opine no invoices can be produced and bank accounts shown to show that the ruling party paid and pay for these advertisements. I challenge the newspapers and ZNBC to show proof that the ruling party is paying for the serial advertisements that are running. ZNBC, Times of Zambia and the Daily Mail have killed Zambian democracy at the behest of the ruling party. The evidence continues to pour in everyday. The failure to broadcast or serialise the petition arguments and the petition itself is part of the evidence of this. ZNBC and these newspapers know that in a democracy they could go to court and apply for rights to broadcast or videotape or audiotape. It is done in the rest of the democratic world. You go to court to argue your case. Let the judges make a ruling and then you will know who is afraid of transparency and accountability. Democracy doesn’t fall like manna from heaven.
Taxpayer funded ZNBC, Times of Zambia and Daily Mail know the importance of publishing issues of national importance. They broadcast and publish the budget speech, they broadcast and reproduce in their entirety the Presidential speeches to Parliament and the occasional state of the nation addresses. This Petition was more important than the budget speeches and the annual Presidential speeches. The Petition dealt with whether Zambia was governed by the tenets of its Constitution or not. The Petition dealt with the well-being or lack thereof of our democracy, with We the People at the centre. The Petition was more important than the ruling party’s self aggrandisement advertisements at taxpayer expense without any permitted opposition coverage and advertisements.
These taxpayer funded news media even failed to summarize what this Petition was all about, yet we were told what the respondent and the Attorney General were saying in response.
Democracy has been debased in Zambia. The ruling party has massacred democracy in Zambia, the democracy we fought so hard to bring back and nurture. We succeeded in 1991. I even wrote a book on this: “Class Struggles in Zambia, 1889 to 1989 and the Fall of Kenneth Kaunda, 1990 to 1991” (University Press of America, 1992). In 2011 our democracy that we fought so hard for, permitted the current ruling party to assume power to continue the democratic project and not to annihilate it. Most institutions of democracy are now under state capture. This includes the Electoral Commission of Zambia. The police force has been commandeered to serve only the ruling party. The record of the judiciary is there for all to see and evaluate through its rulings from 2016 to the present. It is not speculation. The record is there.
Newspapers historically have been regarded as writing the first drafts of history. When television was invented and now videos and cameras and cellphones have joined the instruments of recording the first drafts of history. Taxpayer funded media if freed to promote and record the first drafts would be the most effective because of their pervasity and availability. This public media is person non grata to democracy in Zambia. The opportunity for the first drafts of history have been eviscerated by the public media.
Having said all the above, the private media is not absolved of the responsibility of doing the first drafts of history as well. This medium should have published the Petition verbatim. The private media should have recorded verbatim the proceedings in the ConCourt using all legal means, including shorthand typists. I take it they still exist. I used to use a few in Canada who could take word for word whatever was said in the courtroom and would reproduce it overnight in transcript form. Democracy never sustains itself even in America.
The Petition on eligibility was one of the most important documents in Zambia’s legal history. It must be read by every Zambian. It summarises our true Constitutional history from 1964 to the present 2021 dealing with the justification for two term limits on Presidential rule. The Petition also shows how and why Dan Pule was wrongly decided. The Petition is aided by the application for amicus curiae (friend of the court) standing of three Professors Beyani, Lumina and Mbao. The submission of these professors is simply out of this world. They show how the President was not eligible for a third term and how Pule was wrongly decided. The application should have been reproduced in the taxpayer funded as well as private media for the legal education of Zambians and as first draft of Zambia’s legal history. The treatment of the Petition and the Professors’ application by the ConCourt speaks volumes about the character and behaviour of this branch of the Zambian judiciary. It is only when you read these documents yourself and compare them to the respondents’ arguments and the judiciary’s judgment that you will understand why these documents should have been exposed to the public. They beckon us to judge our judiciary and our democracy.
The 2016 Petition and the arguments in the ConCourt should also have been televised and published verbatim. That is a piece of history that is forever lost to Zambians. Who benefits from the loss of these first drafts of Zambian history? This is your homework to figure out.
Dr. Munyonzwe Hamalengwa specialises on Justice and the Judiciary and teaches law in Zambia.