The tug of war between Mr. Hakainde Hichilema and President Lungu reminds one of primary school days. At Matanda Primary School, we used hands instead of a rope – the two kids in front held each other’s hands, while we pulled in opposite directions. If the kids in front let go, both sides went tumbling down—adding to the excitement.
Some people have condemned HH for petitioning the results, but I believe he must be applauded—it is the first time in African politics when a defeated candidate has halted the inauguration of the declared winner. HH may call Lungu “a dictator,” but President Lungu’s has shown respect for the law by giving the Constitutional Court time to hear the petition. If Lungu losses or wins, he will go in history as the first democratically re-elected sitting President in Africa to halt his inauguration due to a legal challenge—making Zambia the light of democracy in Africa.
Those who have lived long enough know how Zambian courts have ruled on presidential election matters. In 1996, Chiluba barred Kaunda from contesting the elections on the premise that his parents were not “Zambian by birth and descent.” Whereas Chiluba’s parentage was challenged in court, it is Kaunda who was declared stateless by our courts. In 2011, the Patriotic Front used the parentage clause against then President Rupiah Banda. Banda was born in Southern Rhodesia (Zimbabwe) from a Zimbabwean mother. However, the court ruled that it “will be against natural justice” to stop him from contesting the 2011 Elections. That ruling was not based on the constitution, but on the judge’s definition of justice. If the selective interpretation of the national constitution is something to follow, HH may not win this case – something that would present him as a ‘cry baby’ beaten three times; twice on the ballot, and then in the Constitutional Court! HH’s party has promised to accept the ruling, but Lungu’s victory will give PF political capital to demean HH and the UPND. Sadly, PF and UPND cadres will fight, and some will die regardless of who wins.
That said, HH has given us an opportunity to see many loopholes in our Constitution. For the PF, the UPND and the Law Association of Zambia to start arguing on the interpretation of the Constitution which was passed a few months ago is utterly imprudent.
HH’s tug of war with President Lungu on handing over power to the Speaker of the National Assembly is due to the confusing nature of our Constitution. The fact that nobody knows when the Speaker should take over; under which article is the petition to be filed; what is meant by filling and hearing the petition within 14 days; when to start counting the days; and what happens after the expiry of 14 days, simply shows the limitations of our Constitution. Besides, resolving constitutional matters can take months and even years – especially in cases where many stakeholders are involved. HH, Lungu, the PF, the UPND, and the Election Commission are parties to this suit. If the petition against a Member of Parliament takes months—how can the presidential petition conclude within 14 days? It is one thing to say ECZ, the PF and Lungu conspired to rig the elections—but it is another to show beyond reasonable doubt how and when that was done. To do justice to all players involved, some people have to testify—something that can prolong the process.
Consequentially, the Constitution identifies the Speaker of the National Assembly as the right person to perform executive duties in the case of the petition. But this provision is highly illogical. The Speakership is an elected office – Article 82.1 reads, “The Members of Parliament shall elect, by secret ballot, a Speaker of the National Assembly ….” But after the dissolution of Parliament and by extension the National Assembly, Article 72(1) awkwardly retains “the Speaker and the First Deputy Speaker;” thus we have the Speaker without the National Assembly. Depending on how one reads the Constitution, this is the person who should act as President but without power to “(a) make an appointment; or (b) dissolve the National Assembly.” How can the Speaker dissolve that which does not exist—is this another constitutional oxymoron? This clause would have made sense if Zambia scheduled parliamentary elections a year or months before the Presidential elections—which can be rectified by either cutting or extending the life of Parliament. In is case, the Speaker of the active National Assembly can perform executive duties in case of electoral disputes. As it stands, however, this clause seems tailored to when the president dies in office, and a by-election is held. Today, however, it does not make sense since we have running mates.
Another oxymoron is that the Constitution is not even clear when the term of the Speaker of the National Assembly ends. One assumes that it ends after the election of a new Speaker at the first sitting of Parliament. Unless the Speaker is not interested in regaining his or her position, to hold an election over which the sitting Speaker presides is like asking the sitting President to chair her or his election. In short, our Constitution is problematic—unless these problems are resolved, we will end up with a constitutional tug of war each election circle.
Finally, Zambian politics is unpredictable; so who will win remains a puzzle. A very slight chance of HH winning exists, but it is on him and his party to prove beyond reasonable doubt that Mr. Lungu conspired with the Electoral Commission of Zambia (ECZ) to rig the elections. Regardless, only one person will win this case. I pray that the PF and UPND leadership will put mother Zambia first before their egos by controlling their victorious or disappointed cadres after the ruling.
May God bless mother Zambia and give
wisdom to HH and Lungu.
Rev. Kapya Kaoma