By Amb. Emmanuel Mwamba
“The arrest of an individual, cannot slide the country into dictatorship”.
On 23rd April, a strong worded media statement signed by Archbishop Telesphore George Mpundu, Archbishop of Lusaka Archdiocese and President of the Zambia Conference of Catholic Bishops (ZCCB) laid the first claim.
In his statement titled; ‘’If you want Peace, Work for Justice – (Paul VI)” the Cleric alleged that the manner in which the arrest of opposition United Party for National Development (UPND) leader, Hakainde Hichilema was done, and the subsequent slapping of treason charges on him, threatened the democratic credentials of Zambia.
The statement concluded that the recent use of state security resources to allegedly intimidate political opponents, the alleged violation of democratic principles, the failure by the Judiciary to stand up to alleged political manipulation and the alleged erosion of its impartiality and independence, gave the conclusion that Zambia was now, except in designation, a dictatorship or was not far from it.
The cleric also condemned attacks against the law society, and defined the Police as an entity acting like political cadres of the ruling party.
The statement claimed that considerable political crisis and tension had stemmed from or had been spawned by the failure by the Constitutional Court to hear conclusively, the Opposition election petition that challenged the election of President Edgar Lungu in the August 11th, 2016 General Election.
It is this tantalizing statement that seems to have given credence to international commentaries by many including one piece widely circulated from an academic from University of Birmingham.
Nic Cheeseman, Director of the African Studies and Associate Professor at the University has penned an analytical piece; “One of Africa’s Most Notable Democracies is Quietly Drifting into Authoritarian Rule”.
And recently the UPND alliance with S&D Group, an alliance of liberal socialist in the European Parliament, paid off when the group, pursuing Rule 135(5) and 123(4) tabled a motion on Zambia, particularly the case of Hakainde Hichilema (2017/26681(RSP), and obtained a resolution that advised the Zambian government to adhere to the rule of law, observance of human rights, and freedoms and the need to reform the Public Order Act.
Of interest from this resolution was the affirmation of the proposal to hold political dialogue between the ruling party, the Patriotic Front and the opposition as “initiated by the Zambia Conference of Catholic Bishops”.
Although there appears to be no such official proposal, the resolution is importing its reasoning from the letter or statement by Archbishop Mpundu.
The statement from Archbishop Mpundu was largely ignored by government, probably as it was deemed to be an opinion of a single Bishop.
This statement by Archbishop Mpundu was not designated as a pastoral letter neither was it an outcome of a meeting of Bishops in Conference that issues one.
A pastoral letter is a veritable and venerated opinion of the Conference of Bishops and has profound effect especially on the catholic faithfuls but also renders influence on the local and geo-politics of the country.
Also, government probably made a tactical choice not give a robust and spirited response to these claims, in the interest and spirit to foster and preserve the warm relations between the government of President Edgar Lungu and the Catholic Church.
But this noble decision or action appears to now haunt government as the international commentaries and perceptions so far created appear to be founded on this statement.
PETITION NOT HEARD- THE TRUTH
Following the hotly contested presidential and general election held on 11th August 2016, the Electoral Commission of Zambia (ECZ) declared Edgar Chagwa Lungu as winner with 50.75% majority win while his main opponent, Hakainde Hichilema scored 47.63%.
Lungu marshalled 1,860,877 votes while Hichilema obtained 1,760,347 votes.
In the previous presidential by-election caused by the death of Michael Chilufya Sata and held in 2015, Lungu beat Hichilema by 29,000 votes.
But in this election, Lungu had extended the lead by over 100,000 votes’ difference.
Despite sporadic cases of violence during the run-up to the election, the voting day was peaceful and was characterized by long lines and an electorate determined to have their voices heard through the ballot.
After the election, independent observer missions from SADC, the African Union, the European Union and others all affirmed that the results reflected the true opinion of Zambians that had voted and was held in a free and fair manner.
However, the defeated candidate disputed the results and on 19th August 2016 filed an election petition before the Constitution Court filed claiming that election was marred by irregularities and should be nullified.
In accordance with the provision of the new Constitution, a new Court was created to resolve any presidential electoral petition and President Lungu’s inauguration was put forward until the dispute was resolved or concluded.
In the past, a president would be sworn-in and take up office within 24 hours after the ECZ declared such a winner, and the petition was heard later.
However, the new Constitution suspended the inauguration of the winner but prescribed a limit of total 21days: Seven days in which the disputant should file the petition and fourteen days in which the Constitution Court should hear, determine and resolve such a petition.
Despite early warnings and advice to UPND lawyers, to lay before court a reasonable case to justify their client’s sensational claims; they chose to squander this precious time and opportunity by concentrating on preliminary and subsidiary issues.
The lawyers especially focused their energies on Article 104(3) of the Constitution in which they claimed the Speaker of the National Assembly, Dr. Patrick Matibini, ought to take over from the incumbent President (President Lungu) during the hearing of the Petition.
The lawyers also spent considerable time urging the Court to order a recount of the votes.
On September 6th, 2016, the Constitutional Court, in a majority vote 3-2, dismissed the petition as no discernible evidence was laid before it and the petition lacked merit or evidence.
The Court upheld the decision of the ECZ that President Edgar Lungu was duly elected.
The Court also ruled that its mandate was tied to the 14day constitutional period in which the election petition must be determined.
President Lungu’s inauguration took place on 13th September 2016, and was finally sworn in for a five-year term, a month after he was duly elected.
Hakainde filed a fresh court review action in the Lusaka High Court arguing that his right to be heard was curtailed by the 14-day rule by the Constitution and the Constitutional Court.
So, the argument that the petition was no heard is clearly cannot hold water.
Do people expect the rule of law and constitutional provisions to be abandoned for expediency?
Does the poor strategy of Hichilema’s lawyers, who chose to squander an opportunity to lay a reasonable case in a constitutionally prescribed period before the Constitutional Court, be blamed on the Judiciary or President Lungu?
Can this be the reasonable cause to insult, denigrate and denounce the Judiciary as failing to be impartial?
ARREST OF HAKAINDE HICHILEMA
On Tuesday April 11th, 2017, Police arrested Hichilema.
The Police went to his residence to pick him up.
However, Hichilema is said to have refused to open the gate to the property or the door of the house.
He resisted the call by the Police and eventually locked himself and his wife up in his bunker.
The process has been the basis of the controversial human rights abuse claims against the Police.
The Police are said to have used minimal force to finally gain entry in his house and fish him out after a six-hour stand-off.
Hichilema’s arrest appears to have been sparked by a serious incident that occurred in the Western Province of Zambia during the Kuomboka Ceremony, a many-centuries-old tradition.
During this ceremony, Hichilema’s motor convoy can be seen through a widely-circulated video footage, that his convoy failed or resisted or ignored to give way to President Edgar Lungu’s presidential motorcade.
Before this, Hichilema had issued numerous statements denouncing the presidency of Edgar Lungu and stating that he and his party would not recognize the authority, legitimacy and legality of President Lungu.
On 16th March 2017, Hichilema ordered his Members of Parliament not to attend the State of the Nation (SONA) address in Parliament by President Lungu.
Stephen Katuka, a Secretary General of the UPND directed that their members of Parliament should not attend the session as the party did not recognize President Lungu as Republican President and that a matter disputing his presidency was still in the Lusaka High Court.
Consequently, all the UPND MPs except one boycotted the presidential address.
Hichilema has since been arrested and charged with treason and other charges.
He has so far been acquitted of one charge of insulting the Police that occurred during his arrest.
These matters are before competent courts of law.
It therefore cannot be said that this action by the Police to pursue his perceived lawlessness is an act of tyranny and dictatorship.
THE CLOSURE OF THE POST
Following the conclusion by the Supreme Court of a matter of tax dispute between the Zambia Revenue Authority (ZRA) and The Post Newspaper, the ZRA moved in to recover their monies.
This matter began in 2009 when ZRA claimed tax arrears in excess of $5million.
Because the Authority pounced on The Post a month before elections, attempts were made to accuse government of clamping down on press freedom.
Over the years, Post owner, Fred M’membe had chosen to expand his business beyond news operations by investing into an airline, radio, television, telecom, courier and trucking investments among other businesses.
The weight of this expansive but reckless ventures, ladened The Post with, bank loans, and overdrafts and resulted in consequent failure to pay taxes due and statutory fees.
Many have argued that The Post should have been allowed time and given a period to pay its tax obligations.
Over the years, ZRA had entered into numerous payment arrangements with The Post, which agreements that were breached.
Further, the papers’ debt had ballooned beyond its own marginal assets.
This has since been confirmed by information from the provisional liquidator, Lewis Mosho that shows that the debt and obligations the newspaper owes is in excess of $35million (K350million).
It is therefore preposterous to assume that the closure of The Post was an act against press freedom, since the paper closed because of its own poor business practices and ambitious expansion ventures.
Zambia has numerous independent newspapers, online newspapers, independent television stations and over 80 radio stations.
Therefore, the inevitable fate of The Post and its eventual fall, cannot be a measure of press freedom or lack of it in Zambia.
HAS ZAMBIA SLID INTO DICTATORSHIP?
Zambia is renowned for its peace and stability. It has just held a credible general election with international stamp of approval.
But the narrative churned out the last few weeks following the pursuit of Hichilema by the Police for his allegedly illegalities has spawned a debate questioning Zambia’s reputed democratic credentials.
The Brenthurst Foundation, a charity wing of Anglo America Corporation, and its Executive Director, Greg Mills have taken up the case of Hichilema and churned out material against the government of President Lungu.
Shortly after the arrest of Hichilema, Mills issued an Op-Ed statement; “Now or Never for the International Community in Zambia”.
The piece was a rallying but desperate call to the international community to urgently “intervene” as President Lungu was allegedly dipping a test to ascertain response of the international community claiming that if it was “limp, a wider and possibly violent crackdown” against the opposition would follow.
Brenthurst Foundation has been accused of consistently attempting to raise and support political leaders in Africa that align themselves to Capital and liberal markets, especially in mineral rich countries as a precursor to the mining giant’s commercial interests.
The Foundation is chaired by former Nigerian president, Olusegun Obasanjo and other board members that include Jonathan Openheimer.
Members associated with the foundation quickly followed Mills statement with their own.
This international campaign was given impetus by this statement from Archbishop Mpundu.
So, this is a storm in a tea-cup driven by a clever international media campaign, by forces that support the opposition leader and wish to force the release of Hichilema without any recourse to the law.
From the earlier argument above, it is clear that the arrest of Hakainde Hichilema cannot descend Zambia into dictatorship or an abyss as he is not above the law.
Further the arrest of an individual suspected to have broken the law, cannot plunge Zambia into political turmoil as argued and if this argument was true, it would negate the strides that Zambia has made to become a democratic state governed by the sanctity of the rule of law as the law will be subjected to the caprices of political and other narrow interests.
The Author is the Zambia’s High Commissioner to South Africa