By Professor Michelo Hansungule
This month has been extremely bad for Zambia’s nascent democracy. The past week has dealt severe blows to the bill of rights particularly freedom of expression and the right to information in Zambia. Police’s summoning of HH and slapping him with the illegal ‘warn and caution’ statement as well as the eerily unanimous Supreme Court judgment in Selected Judgment No. 47 of 2018 against Gregory Chifire blatantly undermined the little that had remained of the modicum of democracy and the rule of law in China’s African colony.
At the High Court, HH and his running mate Vice President Godfrey Bwalya expectedly returned empty handed from Judge Chitabo Mwila’s court where they had gone knocking for the right to be heard after they were unceremoniously sent packing by an illegal ConCourt majority post the 2016 catastrophic sham elections. Earlier in the month, and quite unsurprising as well, the ConCourt tossed out two high profile parliamentary election appeals from petitions challenging the 2016 elections in Lusaka Central and Munali constituencies both in the capital city Lusaka.
UPND candidates who petitioned the results won the petitions at the High Court in which they rejected the results citing widespread corruption, intimidation, racism, and general non compliance with applicable basic electoral and other statutes designed to ensure genuine, free and fair elections. Interesting feature of these two constituencies is that petitioners and respondents from both ruling PF and opposition UPND who were declared winners and losers respectively are women. After a protracted process lasting two years, the two UPND candidates who were declared winners by the High Court were declared the losers after their opponents won their appeals at the ConCourt.
Back to HH and Edgar Lungu’s ‘warn and caution statement’, this is the latter’s way of desiring to control HH. Edgar Lungu’s convinced he owns the country and can do anything against anyone. He of course does not behave presidentially. Though basic democracy entails and the constitution guarantees basic liberties foremost among them freedom of expression particularly for political leaders and officials, Edgar would not tolerate this if it tends to undermine his ego. It is all just about his ego. HH must not speak about ZAFFICO forests neither must he speak about the Chinese taking over Zambia.
Indeed freedom of expression is subject of claw back clauses and therefore cannot be interpreted absolutely. However, the limitations are also limited such as by the need to ensure reasonableness of the limiting clauses, their lawfulness and that they meet the minimum democratic thrust. In the particular case, though both ZAFFICO and Zambia at least in theory belong to Zambians who, therefore, are entitled to speak about them, Edgar would have none of it particularly from his nemesis HH.
Edgar would have none of the fact that the public demonstrations in both Kalulushi and Kitwe against news that Chinese had bought ZAFFICO were spontaneous and in any case occurred prior to HH’s media interviews. Because Edgar is in the president’s office illegally, not having convincingly won the 2016 elections, he is not in the office confidently. His behavior tells it all. He fears any shadow that tends to eclipse his.
Otherwise freedom of expression is a basic right enshrined in the Zambian constitution and requiring Edgar to protect Hakainde’s freedom to speak freely and inform his followers of his views about major developments in the country. Just like Edgar Lungu, HH has a large following of supporters in Zambia. Though he purportedly lost the elections, HH got nearly the same number of voters as Edgar Lungu – over one million each and he has a duty to inform these on major developments in the country without the fear that police on Edgar Lungu’s instructions will summon him or slap him with a warning and a caution indicating he has potential for jail time.
PF senior officials including Home Affairs Minister have actually accused HH to have incited he copperbelt riots. How do they do this before he was tried and found guilty by court, do court not matter? It was after this that the summon came and the warn and caution which indicates unequal application of the law. While the law in article 18 of the constitution presumes everyone innocent until proved guilty, it is the opposite for HH as ministers find him guilty and then take him to court, incredible.
The Supreme Court’s over 80 pages Chifire judgment raises serious questions about justice in Zambia. Because I am conflicted in this matter, I opt to not go into detail about the content of the judgment suffice it to say I have serious reservations on a number of issues including the law canvassed and the methodology used for the analysis of the issues. Since I got the judgment this morning courtesy of a well wisher, I read and read the 80 pages as carefully as can be and cannot believe that there was no dissenting opinion on such a critical matter as the liberty of a citizen from the apex court? However, because I am conflicted, I must refrain to go into detail about the gist of the judgment at this stage. Suffice it to say citizens before me have already raised difficult questions such as the apex court sitting in its own cause, what is the effect of this? Shouldn’t the court not have used this case to demonstrate their commitment to the rule of law by recusing themselves and insisting on other judges even if foreign in order for justice to not only be done but seen to be done?
The broad issue I want to raise, however, is that if you look at most of the resources used in the judgment, they mostly all predate the modern era. Most of the materials were enacted long before the modern age of good governance. Writing the Chief Justice a letter in which her attention is drawn to a matter of public importance should be appreciated as part of good governance. This is consistent with the very first article 118 of the judicature chapter which provides that:
‘…. judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability….’
This is meant to be departure from ancient history where judges were not considered human in the sense of ordinary human beings but men and women very close to God. Idea behind the statement that ‘judicial authority derives from the people of Zambia means Gregory Chifire and others are the source of judicial authority and when Chifire or someone else writes the Chief Justice he must be appreciated because he is merely exercising article 118.
Instead of unleashing the law on him, the Chief Justice should have invited Chifire for discussion over a cup of tea in order to understand where he is coming from in any case he is ‘the people of Zambia’ in article 118. A person who writes even if accusations most of them unsubstantiated but who lists his or her name together with contact details deserves to be taken seriously and engaged rather than imprisoned. In modern times, people, using social media, for instance, write anything and do so anonymously using strange non existing names like ‘Satan’ or ‘Jesus’, ‘Trump’, etc. These are mostly cowards hence cannot reveal their true identity or list their contacts yet sometimes they make serious allegations. But Chifire is not in this class. He wants an engagement and he is covered by the constitution.
Regarding me, for instance, there is this chap called Antonio Mwanza I have no idea who he is? A good Samaritan has just sent me an article I don’t know in which media it first appeared in which this Antonio is criticizing Chibamba Kanyama and whatever he may have said about or against government and then from nowhere this Antonio chap turns to Professor Muna Ndulo and myself accusing us of openly supporting UPND, just from nowhere? In one line he is writing about Chibamba Kanyama and in the very next line about Professor Ndulo and Hansungule, I unsuccessfully tried to see the connection?
As I understand it, this Antonio is not an elected official? I checked the names of Councilors and MPs and he does not appear. Being an unelected official of PF I assume what gives him the authority to attack citizens exercising their right to criticise elected officials? Is the idea to expose me and Professor Ndulo to the wrath of PF hooligans hence connecting us to an article discussing Chibamba Kanyama and whatever he may have said? Does it mean Prof. Muna Ndulo and I give this Antonio chap sleep nights otherwise why talk about us when discussing n issue we may not be aware of? Antonio, whoever you are, because I am not a politician, I will look out for you so that you make me understand why you so easily turn to us in discussing a matter which has nothing to do with us? Just to give you free tutorial Antonio, one it is a basic right of every citizen to belong to any political party of his or her choice and no one should hold this against them. Second, it is a duty of every citizen not only to demand accountability to elected leaders but to criticize them in a bid to ensure accountability. As the Supreme Court itself says in the Chifire judgment, the Supreme Court or the judiciary is a unique. One issue which makes up this uniqueness is that its members are unelected and therefore would not fall under the same pedestal as politicians in terms of accountability threshold. However, article 18 of the constitution extends the same power in the hands of citizens to oversee the judiciary even if of unelected officials. Nevertheless, point is Supreme Court needed to have differently handled the Chifire issue than what has happened now.
The High Court judgment by Judge Chitabo Mwila raises a serious issue. From reports, it appears the judge meekly accepted the state argument that the High Court cannot rule against the ConCourt. Yes the constitution appears to be saying so. It appears the constitution confers exclusive jurisdiction in article 228 to the ConCourt to interpret the constitution and that I terms of hierarchy, the ConCourt towers over ad on top of the High Court. A holistic interpretation, however, cannot lead us to this conclusion. In particular, this assumes that the 2016 referendum was successful and therefore migrated the bill of rights to the 2016 constitution yet not. As long as this is not the case, and we continue to use the 1991 bill of rights, the High Court remains the sole judicial body with jurisdiction to interpret and apply the bill of rights regardless of its hierarchical inferiority relative to the ConCourt. Failure of the referendum means jurisdiction to interpret the bill of rights which is enshrined in article 28 is exclusively in the High Court and we have to live with this strange mix. Therefore, Judge Chitabo Mwila clearly misdirected himself in buying the cheap state argument as he did.
Lastly, a small point about the strange rulings of the ConCourt in the Lusaka Central and Munali parliamentary constituencies both in Lusaka. Any serious observer of the Zambian political scene under president Edgar Lungu would no doubt have known that UPND victory at the High Court was short lived. First, UPND had criticized the ConCourt judges following the dramatic 2016 illegal decision by this court to unceremoniously terminate the opposition party’s petition and what do you now expect from them? You criticized the ConCourt following the 2016 election petition debacle and this is perfectly in order because it is your right, but do you really expect judges in this court to take the criticism magnanimously? Politically, it was unwise for UPND to go to the same court and to even expect a win given this background. UPND should try use the political route more than the legal route until the country has been liberated.