Op-ed critiquing Zambian presidents is deeply flawed

The article claims that President Hakainde Hichilema is using the judiciary to ensure former president Edgar Lungu is declared ineligible to re-contest the presidency in 2026

The op-ed of 13 June 2024 by Dr Sishuwa Sishuwa (Mail & Guardian, “How President Hakainde Hichilema is using lawfare to subvert democracy in Zambia”) is deeply flawed. It would be a historical tragedy to let the op-ed slide without fact-checking or offering an alternative view.

Dr Sishuwa’s comparison that President Hichilema’s government is using lawfare to subvert democracy in Zambia, just as late president Michael Sata and his successor president Edgar Lungu did, is an opinion he has yet again failed to back with facts.

The op-ed prepositioned that post the Patriotic Front regime’s defeat in 2021, there was an expectation for stronger legal foundation reforms that enabled the tyranny of that regime. However, it is the senior lecturer’s opinion in his article that Mr Hichilema’s government has not shown willingness for such fundamental legal reforms.

Dr Sishuwa claims that President Hichilema is using the judiciary to ensure former president Lungu is declared ineligible to re-contest the presidency in 2026. He says this is a well-orchestrated plot stemming from a then justice minister, Mulambo Haimbe’s public announcement that he would find a party cadre to petition the 2017 constitutional court judgment (Daniel Pule and Others v Edgar Lungu and the Attorney General, 2017), which allegedly interpreted the eligibility of president Lungu as a three-time presidential candidate. The said judgment interpreted article 106 of the amended Constitution on eligibility of a presidential candidate to hold office twice.

However, Dr Sishuwa knows that the judgment was a source of confusion as the court was accused of not answering the question taken before it — specifically whether president Lungu should be deemed to have been elected twice as per constitutional provision. Critics and legal minds accused the constitutional court of rephrasing the questions taken before it to “interpreting a presidential term” instead.

Despite the claims that the constitutional court had dealt with president Lungu’s eligibility matter in 2017, constitutional court lawyer John Sangwa, SC, had a contrary view in 2021.

“There was this bogus narrative that the constitutional court came up with to say there was one regime then a different regime, it has never been like that. We have had one constitutional order from 1991, which was amended in 1996 and 2016. It is still the same Constitution and that is why we are saying that, that Constitution whether amended or unamended, it still remains that one can only be elected twice to the office of president. That is what the law says. Those three years we are talking about are related to the vice-president. If the vice-president serves for less than three years, then they are eligible to contest and that is what the Constitution is dealing with, it has nothing to do with the person who is elected president,” he said. (Diggers, 2 March 2020, “Law is clear – Lungu does not qualify for 2021”).

It would be a fair assertion to posit that based on state counsel Sangwa’s statement, Dr Sishuwa joined Legal Resources Foundation Limited and Chapter One Foundation in petitioning the constitutional court seeking an outright declaration that president Lungu could not contest the 2021 elections because he had already been elected twice (Legal Resources Foundation Ltd, Sishuwa, and Chapter One Foundation v. Edgar Lungu and The Attorney General, 2021).

The majority ruling of the constitutional court dated 13 July 2021 yet again shied away from specifically addressing the eligibility of president Lungu, whose nomination papers had been accepted by the Electoral Commission of Zambia. Among many other reasons, the court maintained that they had already interpreted article 106 of the Constitution, which in their view dealt with the qualification for one holding office of the presidency.

They stated that they therefore saw no reason to vacate or re-discuss their earlier judgment, most so because it was not an issue that the petitioners were asking the constitutional court to do so. If that were the case, the petitioners should then have made an application through a motion to review judgment and not a petition.

I lay this foundation to show how the matter involving president Lungu’s eligibility in 2021 and future elections has not been accepted, as well concluded by the public. It is also a fact that state counsel John Sangwa recently claimed that the matter he represented Sishuwa and the CSOs in 2021 at the constitutional court, which matter Sishuwa claims to have taken to court, did not at all ever state that president Lungu was eligible for election in 2021 or any other election. His view is that the constitutional court refused to address the question because they claimed it was personal and not interpretive, which is what they claimed their functions to be.

Dr Sishuwa, in alleging that President Hichilema is using the constitutional court to fix president Lungu so that he is barred from contesting the election is not backed by any logical explanation from him, especially that he is a party to the judgment, which Sangwa, who was his lawyer, is quoting.

In casting aspersions on the latest matter on president Lungu’s eligibility case before the constitutional court, the senior lecturer of history should have shared the questions or issues that the latest petitioner has asked the court to deal with. In the absence of such information, he is merely being speculative.

Further, had Dr Sishuwa objectively applied his mind to his op-ed, he would have realised his self-contradictory arguments. For instance, he accuses President Hichilema of fixing his perceived political enemies when he conforms to the constitutional requirements of filling the vacancies in the staff establishment of the courts. Yet he quotes a judge who complains about the workload versus the available judges.

President Hichilema did not only appoint four judges to fill up the vacancies in the constitutional court establishment. He appointed judges in the high court and superior courts, which courts had vacancies yet burdened the few judges with too many cases. Dr Sishuwa’s argument about the full bench of the constitutional court being five judges would have been answered had he perused article 127 of the Constitution.

 The composition of the court is prescribed as 13, but the minimum threshold of a full bench is five. It means that the court can be deemed to be legally constituted if the president appoints five judges, one of whom is president or deputy, and they can determine a matter that requires all of them to sit as long as they are five. However, Dr Sishuwa should have been guided that a full bench in any court means all the members of the bench or appointed judges of that court. Therefore, the full bench of the constitutional court will be 13 in this instance, including those judges he perceives to be friendly to president Lungu, having been appointed by him.

Basic research would have taken the senior lecturer to the Judges (Number of) Act of 2016, which deals specifically with the number of judges in the high court and superior courts. His discourse, therefore, should have been centred on the bottlenecks inhibiting amending this Act to increase the number of judges. He had the opportunity to get firsthand information, more so that he quoted a judicial source in his op-ed.

The op-ed graciously admitted that the chief justice had the authority to create the economic and financial crimes court but had an issue with the time-prescriptive nature of when cases should be concluded. Again, a champion of the rule of law should applaud this initiative in that those who are accused can quickly clear their names and go on with their normal lives. Criminal judicial reform activists in Zambia have long abhorred the slow pace at which cases are concluded.

 In some cases, it is inadequate staffing and an unmanageable caseload, but we have had instances where some judges do not write judgments after the conclusion of trials. This phenomenon has largely been unpunished because of the lack of statutory time frame requirements in certain courts (Suspension of Judge Timothy Katanekwa, The Green Party View, published on Smart Eagles 29 December 2023).

However, Dr Sishuwa would have found that the industrial and labour relations division of the high court has a time frame prescription of when a case should be concluded. His belief that the time prescription in the economic court is a President Hichilema lawfare would have been dissuaded more so if he had conducted a comparative analysis of the Levy Mwanawasa initiative of the Task Force on Corruption and the establishment of the economic and financial crimes court.

Further, still on the judiciary as a tool of President Hichilema’s lawfare, the senior lecturer opines that named opposition political party leaders are being targeted for conviction so that they are disqualified from contesting the 2026 elections. As has been demonstrated in my reasoning herein, Dr Sishuwa fails to disclose the offences that these named politicians have committed. But most importantly, he is expected to point out that the alleged offences are actually not covered in any Zambian statute, including the Criminal Procedure Code. Failure to do so to establish abuse of legal and judicial institutions means Dr Sishuwa is advocating for a classist or bourgeois society akin to George Orwell’s Animal Farm.

The op-ed contention that President Hichilema is using the police in the application of the Public Order Act to ban opposition political party gatherings and mobilisation is not consistent with public statements that the president has made. Unlike his predecessor Edgar Lungu, who questioned perpetual political rallies under the guise of the right to assemble, President Hichilema has on numerous occasions counselled the police to improve their policing skills. 

It is agreed that the police in Zambia can do better than they are doing. It is also folly not to acknowledge the change in their service delivery, even if it is minuscule. Dr Sishuwa’s op-ed should be focused on the slowness in amending the Public Order Act. Dr Sishuwa has a chance to use his academic prowess to enrich the review of the Act if he compares the shift in maintenance of public order in the United States since the January 6 insurrection, coupled with the United Kingdom’s inclusion of more offences in their Act.

Dr Sishuwa’s complaint that the current speaker, appointed by President Hichilema, is a personal friend or close to him based on her legal work is hard to comprehend in terms of how that is breaching the Constitution or contributing to an assault on democracy. All the acts that Dr Sishuwa has complained of are in the public domain and have actually nothing to do with the speaker but laid down procedures of the House.

Dr Sishuwa would have done well to send a press query to the media office at parliament on the standing orders that deal with the appointment or disappointment of opposition party positions in the House. Suffice to say, the Constitution provides for the designation of leader of the opposition following an election among those members.

Dr Sishuwa might also reacquaint himself with the constitutional court judgment that confined the speaker to the National Assembly to legislating and not interpreting the law. The case of Miles Sampa, as narrated by Dr Sishuwa in his op-ed, is full of conjecture. The respected academician should point out which arm of government or Constitution has acted illegally and what the breached regulation is.

In addition, the correct assertion is that Article 82 of the Constitution prescribes the qualifications of a speaker. One of those is that the person should not be an MP. The Constitution also provides for a secret ballot election of a speaker, not what Dr Sishuwa alluded to as ratification.

It is difficult to understand where Dr Sishuwa draws his conclusion that the appointment of commissioners to the Electoral Commission of Zambia breached the constitutional requirement of regional or ethnic representation. There is no such provision in the Constitution amended in 2016. 

The major amendment with regard to the electoral commission functions was the designation of the chairperson as the returning officer. Previously, the returning officer was the chief justice of Zambia. It was also a statutory requirement that the chairperson of the electoral commission was a judge who would be at the level of deputy chief justice.

The law, as it stands since 2016, is that the president appoints commissioners in accordance with the Electoral Commission of Zambia Act of 2016. The chairperson of the electoral commission should be a person who qualifies to be a judge. The qualifications of a judge are prescribed in the Constitution.

My expectation is that Dr Sishuwa should have done research to better postulate his issues objectively. The fact that he fell short renders his arguments on the impartiality of the previous commissioners subjective, especially since basic research would inform him of the atmosphere during the announcement of the 2021 election results.

It is not surprising that Dr. Sishuwa has mastered the unfortunate use of ethnicity by making expansive allegations of ethnic favouritism by President Hichilema. The senior lecturer has to date failed to produce evidence that the civil service is being weaponised through recruitments favouring the North Western region of the country. Last year, in response to his article on ethnicity in the civil service, Dr Sishuwa was called upon to use his research prowess and provide data on employees and regions, including recruitment years.

A firsthand account of a witness of ethnicity titled “Sishuwa must give empirical evidence of alleged sectarianism”, published in The Zambia Daily Mail of 27 September 2023, detailed the practice of ethnic favouritism in the previous government. The author requested Dr Sishuwa to conduct an analysis of procedures of recruitments, ethnic composition, as empirical evidence that would be helpful in shaping policy and legal reforms on public service recruitment.

In the latest allegation, Dr Sishuwa yet again fails to provide the ethnic makeup of the civil service that was inherited by the  United Party for National Development (UPND). In “Ruling by fear and repression,” Amnesty International reported, “meanwhile, hundreds of employees in the civil service have been ‘retired in the national interest’ by 2020, on suspicion they were associating with the political opposition”.

Further, the senior lecturer ignores the fact that the UPND government set up a commission to receive applications from anyone who felt their retirement from the civil service was unjust. The result of this commission was the reinstatement of many of the civil servants. Dr Sishuwa should have enriched his argument with the disaggregation of ethnicity of those reinstated.

An objective analysis of weaponising the civil service in view of Dr Sishuwa’s allegations that President Hichilema has sent around 400 civil servants packing should have come with a holistic number of the remaining civil servants and their ethnic composition. For instance, 400 North Eastern civil servants retired from a civil service that is made up of 4000 staff, 500 from the North East, and 3,500 from the North West. Such statistical reports immediately expose the glaring irregularity and discrimination.

The historical researcher should note the current government’s claim that of the 40,000 civil servants recruited as teachers, there is equal representation of regions. The same claim has been made for recruitment in the defence force and health sector. Yet, if historically one region has evidence that they have not been given opportunities, positive discrimination in these recruitments would be a legitimate practice.

Dr Sishuwa’s discourse is an important part of checks and balances for those that exercise power on behalf of the people. His credentials are impeccable, such that they can shape local and international opinions on the state of governance of Zambia. For that reason it is important that his write-ups or opinions should be of the highest standard because they risk being taken as well-researched truths. 

Perceptions are anchored on consistent narratives that are often ignored or never challenged. It is important that those with information or an alternative view to Dr Sishuwa and other researchers are encouraged to hold a candle to such opinions. It enriches history and records history in a factual, objective manner.

Lusungu Chirwa a master’s in journalism and an LLB.