Prof. Michelo Hansungule
A critical point that should be exposed as voters go to the polls for the presidential by-election next week is the issue of anointed leadership. The term ‘anointed leadership’ has lately been touted so much in public domain that it is bound to mislead some voters. It is important to ring fence the fact that in Zambian politics, leadership is premised on the basis of a democratic process and nothing more. It is incredible to hear people canvassing for votes for the incumbent PF candidate Edgar Lungu on the basis that he was anointed by late president Michael Sata. He was not. It is absolutely crucial for each and every voter everywhere to understand that no one anointed Sata into office in the first place. The late president tried to seek late president Chiluba’s anointment but the latter refused? Former President Rupiah Banda from whom Sata took the reigns of power is still alive and in fact in the field now traversing the country campaigning for ruling party candidate Edgar Lungu; we could ask him whether he anointed Sata into office? But we don’t have to because the answer is clear to us all – Sata was ‘anointed’ by democracy. Voters ushered Sata into office, not any one person least of all Sata.
Sata did not and could not anoint Lungu to take over from him as PF president, NO! The PF constitution does not have the word ‘anointment’ of their party leaders hence they had the Kabwe fiasco. What it has is change of power by democracy. Sata illegally and untenably transferred power to Minister Lungu. Untenable because the constitution makes it mandatory for the president to appoint the Vice President to act for him if the latter is in the country. The same constitution says the president may ‘specify’ reasons why he may overlook the Vice President who is in the country and not disabled by any of the conditions it specifies and he never did make this specification for all the time he overlooked his Vice President.
Democracy is the only means of changing or accessing power in the PF, MMD, UPND constitutions as well as the Republican constitution. Dr. Kaseba Sata, widow of the late president Michael Sata has made it absolutely clear that late Sata did not anoint anyone in PF to take over his position from him. People and here I am addressing myself especially to members of PF who must feel absolutely free to choose a leader of their choice in PF in freedom and fairness and similarly all citizens to choose a leader of their choice for the country based on the republican constitution.
Until recent elections, I had naively thought democracy was ‘born’ in Zambia. Of course there was violence in the one-party state against those who did not believe in it but one did not expect it to climb to the current Zimbabwe 2008 type levels in a democracy. I watched on Muvi TV in total disbelief as PF presidential candidate Edgar Lungu personally threatened UPND supporters and leaders with physical violence. How can a potential president be so unashamedly violent and completely careless in political language in his campaigns to his party faithfuls and while he holds ministries of Justice and Defence? Again MUVI TV showed a motionless body of an elderly man in Mongu who was beaten by known PF party cadres prior to Lungu utterly these violent words. In the north, senior members of UPND presidential campaign team were shown on MUVI TV scampering for safety from PF gangs let loose to fix them physically. These are just a few of the serious stain of electoral violence that has become Zambian. These gruesome images merely illustrate the extreme side of the imbecility of their authors. No sane Zambia will tolerate any form of political violence and extreme intimidation of law abiding Zambians merely trying to exercise their constitutionally guaranteed rights. As others have said it over many times before, the ‘panga family’, has no place in todays’ Zambia built on the ideals and foundations of democracy.
The Zambian police and the Electoral Commission have been extremely disappointing the way they reacted/not reacted to politically driven violence. At best, the two institutions have been complicity to ruling party inspired political violence which is very sad for Zambia. Peace loving Zambians have a duty to address this during the 20 January presidential by-election.
The way Zambians of all walks of life case their cherished vote on Tuesday 20 January will demonstrate whether they stand for those human values that until now have kept the country together in peace and development. If, on the other hand, we vote for continued political violence and for endless list of blatant lies, unprecedented political violence, constitution within our lifetime, incredible promises about money in your pocket and jobs in 90 days all of which we all know came to pass, a fair and equitable society especially for the most vulnerable sections of society, time is now to fix all these things through the vote.
Integrity of the presidency
There is one thing that must be emphasized for voters. It is important to protect the presidency by carefully searching through each of our souls come 20 January. Zambian electorate have a duty to protect the presidency. The previous three years of late president Sata have really dented the image of Zambia internationally. Of course Zambians have every right to elect a leader of their choice but the vote is a serious decision. A Zambian president should inspire confidence at home and abroad. It should be a woman or man who obviously possesses qualities of leader and it does and should not matter whether he or she served in government before. MMD had no experience in government when they came to power. UNIP had no experience when it came to power in 1964. It is important to not overstress the fact that one was not party chairman or councilor of minister before ascending to power. Article 34of the Constitution does not list any of these conditions. After the three years of PF government, which was ushered into the government democratically but governed undemocratically, Zambia desperately needs a breath of fresh air.
Sleeping on duty
There is one nagging point which the country should take forward post-election. Article 34 of the constitution quite clearly ad unequivocally lists down conditions for a person to comply with to contest the presidency. Key among these include that:
(a) he is a Zambian citizen
(b) both his parents are Zambian by birth or descent.
(c) he is a member of, or is sponsored by, a political party, etc.
These three conditions in particular need closer examination after the election. It is quite clear that of all of them, Zambian citizenship towers among them all. Reference can be made that in other jurisdictions like Tanzania, the requirement is no merely ‘Tanzanian citizenship’ but native or indigenous Tanzanian citizenship. In other words, the presidency alone in those jurisdiction is not open to any bidder who waves citizenship per se. On the other hand, Zambia reserves this for Article 34 (3) (b) regarding parentage of the candidate which it emphasizes must be Zambian citizen by birth or descent. Now, this particular clause has received so much attention from scholars, commentators and even the country’s Supreme Court on numerous occasions but it is important to return to it because clarity has been elusive. Worth extended comment in particular is the Supreme Court judgment in the Akashambatwa Lewanika versus Chiluba case in which their Lordship in a unanimous judgment tried to state the law eventually dismissing Lewanika’s challenge that Chiluba did not meet this condition because according to the applicant, his father in particular may not have met the parentage clause. I have a serious problem with this case myself. First, it showed not the boldness of our judges to make law through interpretations in landmark cases like this by each authoring their own opinion. Just why their Lordships opted for a ‘unanimous judgment’ even though per enquirium they could not hide the fact that there are areas they could not agree with is anybody’s guess. This is one case Supreme Court judges should have appended individual learned opinions for the sake of jurisprudential growth in the country.
Second, the point should never be forgotten that two years prior to the Supreme Court judgment, then Chief Justice Mathews Ngulube, someone I hold in highest regard, was reportedly exposed by the Post Newspaper as having been in late president Frederick Chiluba. Post reports which were prompted by a different case against the post newspaper managing editor, readers will recall, exposed a trail of corruption involving some of the country’s senior leaders literary helping themselves in a primitive form of accumulation to the copper national till. Chief Justice Mathews Nguube was fingered as one of the beneficiaries to the tune of plus or minus 200,000 United States dollars. Readers will note the perplexing coincidence that all this happened as the apex court prepared the Lewanika/Chiluba judgment whose infamous result we all know. The Chief Justice was shown the door by late president Levy Mwanawasa in a dignified way yet a crime was committed and Zambians lost out.
Yet, this is the judgment everyone cites in trying to elucidate the nature and scope of the parentage clause in Article 34 (3) (b) – a tainted judgment. In any case, it is one of the canons of construction that a judgment of the highest court cannot inform the constitution. It is not the judgment which remains the supreme law but the constitution. The clear provisions of Article 34 (3)(b) have been grossly undermined by the Electoral Act, 2006. A common statute has tended to in effect not just give effect to the constitution but in fact to undermine it. Section 21 of the Electoral Act which empowers the Returning Officer in as far as presidential elections are concerned patently undermines the constitution by providing that the ‘oath of affirmation, as set out in the Schedule, of the candidate’s Zambian citizenship and of that candidate’s parents being Zambian citizens by birth or descent ………shall be accepted as prima facie evidence by the Returning Officer as complying with the law as to the qualification for election as President’. This empowers the Returning Officer to not institute an investigation to determine the veracity of the oath as to the parentage claims of the candidate which is a clear violation of the constitution the principal law in Article 34 (3)(b) stipulated above. Indeed, had the Chief Justice instituted investigations to establish these facts, it is quite possible that some of the eleven candidates my simply not have qualified. And just one small point to add while on this point, for heavens’ sake, the Chief Justice cannot be Returning Officer of presidential elections as the law currently stipulates because as head of the judiciary, she must also not be member of the executive. It is a shame what happened in Lewanika versus Chiluba and other cases that having acquitted his role as Returning Officer, the Chief Justice them proceeds to convene and preside over a case which, among other things, challenges the decisions of which she was party. The Chief Justice need not have any role in the administration of election to allow her independently preside and resolve over disputes arising from such election.
The Electoral Commission of Zambia has literary been sleeping on duty and so are members of parliament in not advocating changes to the Electoral Act to align it with the constitution. The commission in particular is not there just to count votes every five years or by-election but to draw attention of government to clauses in the implementing legislation which contradict or openly collide with the constitution. Whatever the outcome, the constitution should be given supremacy. Just like they put us to task in villages when you claim parentage to establish who your father and mother or grandparents were before recognizing your claim to the clan, ECZ should develop similar rules to implement Article 34 (3) (b). Even the clause on political party membership for candidacy to contest the presidency isn’t beyond dispute. As it stands, it appears a reading that two or more candidates can contest the republican presidency one member the other ‘official candidate’ is possible. The clause is not clear cut that each party should have only one candidate.
Having traversed the length and width of Zambia in the last two weeks and conferring with several Zambians, I have no doubt this is HH’s election. It is quite clear, in fact, more than clear that Zambians are ready to have an HH presidency. HH’s critics have tried every tricky in the book to throw dirty or doubt on him but it hasn’t worked this time round. Like Frederick Chiluba or Kaunda himself in 1964 who had no political experience before assuming the presi9dency, HH will be entering State House with no political experience but a track record of tested business experience. This is what Zambia needs badly right now. Not politicians who cheat and who have cheated Zambians since 1964 but complete political novices but with far reaching visions. As a successful businessman since he was 26 years, HH will NEVER abuse Zambian resources – NEVER. As he himself has observed, he will not ask Zambians to build him a house because he has his own houses. I do not expect him to ask Zambians to buy him luxury cars because as he personally assured me, he has his. The other day, he was selling me four hundred heifers and indicated he would be selling eight hundred two months down the line; how can such a person be so greedy as to steal from poor Zambians what he already has? His wife lives an ordinary God fearing life one gets the distinct impression she is being forced to come into the limelight. We don’t expect the first lady to abuse the office of presidency and I doubt any of HH’s relatives.
HH will bring sanity to the government. It is not right that critical institutions like the Office of Chief Justice should run on acting basis yet there is a head of state? It is not right that the president takes RDA to his house at State House. How can you keep all the billions of kwacha and United States dollars at State House? It was just strange how the current government was run. We need a president who will personally commit to prioritise the constitution and not one who at this late point asks basic questions like convince me that the constitution is more important than roads? We should put the constitution behind us. I have personally spoken to HH and he Impresses me as someone whom one can trust.
Tuesday 25 January is an important electoral day for the estimated fourteen million Zambians. Most important clearly is for voters to freely choose a leader of their choice in conditions that are fair, inclusive, non-intimidating and which will enable the genuine expression of the will of the people. Every Zambian voter this weekend has a duty to look for the voters’ card and national registration card. Do not wait for Tuesday or even Monday to look for them but do so this weekend if you already have not done so t make sure we all vote to protect the presidency and country.