The real reasons HH was released from jail

By Sishuwa Sishuwa

The Commonwealth’s intervention did not rescue Hichilema from detention. It rescued President Lungu from political embarrassment.

On 16 August, Zambia’s main opposition leader, Hakainde Hichilema, walked to freedom after spending four months in detention. The moment, which came shortly after an intervention from the Commonwealth Secretary General, was celebrated with relief internationally.

Many saw Hichilema’s release as a sign that President Edgar Lungu is still open to reason. It was regarded by some as an indication that the Commonwealth continues to wield some influence over its members. The reality, however, may be the complete opposite.

Hichilema’s arrest for treason

To recap: Hichilema, leader of the United Party for National Development (UPND), was arrested on 11 April. He was charged over an earlier incident in which his convoy failed to give way to President Lungu’s motorcade, which was heading to the same event. Another charge was later added that Hichilema and others had “conspired to mobilise an advance party to ensure that Hichilema was to be accorded the status of the President of the Republic of Zambia at the Kuomboka Ceremony”.

What a dispassionate observer may have regarded as a possible violation of traffic rules or presidential protocol was soon inflated into a treason charge. The police violently arrested Hichilema for “an act that was likely to cause death or grievous harm to the President of the Republic of Zambia, in order to usurp the executive power of the state”.

These actions were likely linked to the fact that the UPND refused to acknowledge Lungu as the legitimate winner of the 2016 elections. In fact, Hichilema’s arrest came almost directly after a press conference in which the ruling Patriotic Front (PF) Deputy Secretary General, Mumbi Phiri, demanded he be charged with treason.

For the next four months, condemnation of the government’s actions grew both within and beyond Zambia’s borders, but Hichilema’s case was never heard. The authorities seemingly used every legal manoeuvre possible to delay the trial and keep the opposition leader in prison, further stoking political tension. Repeated attempts by domestic actors to broker a dialogue between Lungu and Hichilema appeared to be heading nowhere. It was not until after the intervention of Patricia Scotland, the Commonwealth Secretary General, whose four-day visit to Zambia in early-August was marked by a red-carpet reception, that there was noticeable movement.

Following a series of meetings with both leaders, the Commonwealth intermediary left the country on 10 August, four days before Hichilema finally had a chance to take his plea before the Lusaka High Court. Trial was to start on 16 August, but when the day arrived, the case was brought to a halt when the Director of Public Prosecutions (DPP) withdrew the charges. The opposition leader was finally free to go home.

Lungu’s grand plan

Now that the initial euphoria that accompanied the Hichilema’s release has subsided, a sober assessment about what happened is needed. The existing explanations focus issues such as: the decisive intervention of the Commonwealth Secretary General, who reportedly issued a vague threat of an international travel ban; the restoration of Zambia’s judicial independence; or the magnanimity of Lungu. But these theories are all lacking. Hichilema’s discharge is better understood as a result of the internal political dynamics, and was ultimately inevitable given the wider context leading to his arrest.

Indeed, Hichilema’s ordeal was long planned. Campaigning in June 2016, ahead of the August elections, Lungu responded to opposition allegations that he was trying to fix the race. “If Hichilema refuses to accept the results, he will see what I will do to him,” he said.

This suggests that Lungu had foreseen that he would win and that his opponent would contest the outcome. It also suggests that Lungu might have already been seeking a pretext on which to detain Hichilema or intimidate him into accepting the results. A treason charge is especially useful in this regard because it is non-bailable under Zambian law, and a pretext was found in the motorcade incident. The primary motive behind the charge was never to convict Hichilema – any trial would have revealed the glaring errors in the prosecution’s case – but to force him into accepting the election results.

What Lungu underestimated in his plan, however, was the strength of reaction to the arrest. Condemnation came from leading opposition figures in Kenya, Zimbabwe, South Africa and Nigeria, all of whom publicised the Hichilema’s arrest and demanded his release. But the most significant opposition came domestically, from the influential Zambia Conference of Catholic Bishops (ZCCB) led by Lusaka Archdiocese Telesphore Mpundu. Barely a week after Hichilema’s arrest, Mpundu issued a statement that, aside from condemning the treason charge, accused Lungu of dictatorship. Attempts by ruling elites to discredit the statement as not representative only prompted the other two Christian church bodies – the Council of Churches in Zambia and the Evangelical Fellowship of Zambia – to reiterate the ZCCB position at a joint press conference that precipitated the Bishops’ first mediatory meeting with Lungu.

On 25 May, South Africa’s opposition leader Mmusi Maimane was then deported from Zambia. He had arrived to attend Hichilema’s court appearance, but was refused on the grounds that his presence would undermine the judiciary’s independence. This episode further highlighted the erosion of democratic principles under Lungu and the growing international pressure.

By July, when the Catholic Bishops started mediation efforts, it was increasingly evident that Lungu was searching for a way to release his nemesis without causing himself further political embarrassment. What possibly stopped him was the fear of creating the impression that he was capitulating to domestic opposition. Lungu was probably scared that if the Catholic Bishops succeeded in bringing the treason case to a halt, that would embolden them and confirm their influence. In other words, it is possible that Hichilema’s release would have arrived earlier if Lungu had found a non-threatening intermediary who could free him from a self-inflicted mess without further humiliation. The role of the Commonwealth’s Scotland should be understood in this context: as the missing link.

The Commonwealth to the rescue

On the eve of Scotland’s entry into the Catholic Bishops’ mediation efforts, it was clear to many that the treason charge against Hichilema was entirely cooked up and that Lungu had got himself into an untenable position. His claims concerning the independence of the judiciary and respect for the separation of powers were now widely seen as hollow. In accepting Scotland’s intervention, Lungu may have reasoned that it was easier to deal with an external organisation rather than a domestic political actor, especially one that had accused him of dictatorship. The Commonwealth Secretary General was the perfect candidate to assist Lungu in avoiding a more just end of the treason case, which would have exposed him as the villain.

In effect, therefore, Scotland let Lungu off the hook because if the treason case had run its course, the bogus nature of the charges and possible presidential involvement would have been laid bare. Scotland did not save Hichilema; she saved Lungu.

The release of Hichilema was not a result of Scotland’s intervention, but an inevitable outcome that would have been secured anyway, either by an acquittal if the trial had run its course or by its discontinuation. If Hichilema had been convicted, it would have been a serious indictment of the judiciary. Many would have concluded that the rule of law no longer applied in Zambia. The prosecutor’s decision to drop the case should also be seen in this context: as a belated attempt to salvage a modicum of judicial integrity.

Recent efforts by some commentators and even the Commonwealth itself to present its intervention as decisive are therefore misleading. If anything, Scotland and the Commonwealth were easily duped into a case that, more than anything else, reveals their desperate quest for relevance. If anyone deserves credit for the release of Hichilema, it is the Catholic Church Bishops and particularly Mpundu, who, in spite of repeated attempts by the ruling elites to intimidate and discredit him, refused to be silenced.

This is not to downplay the role of external actors, but simply to place their efforts in context. If anything, the Commonwealth needed Zambia more than Zambia needed the Commonwealth. Appearing to negotiate a successful political settlement gives the organisation a sense of purpose. In reality, dialogue had already begun under the auspices of the Catholic Church, and it was only Lungu’s unwillingness to accept any local intervention that provided Scotland with a fortuitous opening.

Lessons from the episode

Scotland’s role seems to overlap considerably with the job description of the United Nations Resident Coordinator (UNRC) in Zambia, whose inaction is somewhat baffling. The primary role of a UNRC, a position currently occupied by Janet Rogan, is to prevent or arrest a slide into chaos and conflict. Precisely what Rogan – seen by many Zambians as too close to the levers of power and easily mistaken for a PF functionary – has been doing over the last year is unclear. What is the purpose of the UN if not to intervene in situations of escalating political tension and violence that threaten to descend into chaos?

Another important point to note about the process leading to the release of Hichilema is that Lungu and the PF’s pan-Africanist credentials are in tatters. Attempts at mediation from institutions within Zambia and from African political actors were either rebuffed or wilfully obstructed. When one contrasts the spectacle of a prominent African politician, South Africa’s Mmusi Maimane, being physically prevented from disembarking in Lusaka with the red-carpet treatment accorded to a representative of Zambia’s former colonial power, the hypocrisy is staggering. It could hardly be more damning: prioritising links with the successor organisation to the British Empire over relations with local institutions and African political actors is a total rejection of the idea of “African solutions to African problems”. It exposes Lungu’s criticism of external intervention as entirely self-serving.

The final broader point to note about the release of Hichilema relates to the publicised dialogue between Hichilema and Lungu, spearheaded by the Commonwealth. At the conclusion of her mission to Zambia, Scotland announced that the two political leaders had committed to a process of dialogue aimed at diffusing tension, preserving peace, and resolving key differences ahead of the 2021 elections. She subsequently appointed a special envoy, Ibrahim Gambari, to oversee the talks in conjunction with local civic organisations, including the Catholic Church. Yet a month since Hichilema was released, nothing concrete has happened. Gambari recently travelled to Zambia and met the two leaders separately. According to a well-placed source, Gambari is said to be of the impression that Lungu appears unready for dialogue. This observation is unsurprising and should be understood as a consequence of the marginal role that the Commonwealth in fact played in securing Hichilema’s release.

Along with agreeing to talks, it is widely believed that Hichilema agreed to stop contesting the legitimacy of Lungu’s rule in return for unspecified institutional reforms relating to electoral law, judicial independence, media freedom and the police. These demands for reforms, we are told, are to be tabled at their meeting when it finally takes place. But even if this is true, Hichilema is likely to be disappointed: Lungu is unlikely to institute any reforms that would undermine his own position and bid for absolute power. There is also no mechanism to enforce any agreements reached through these talks. The terms and conditions of the agreement for Hichilema’s release do not seem to have been made public, and all that is known about them comes from leaks from various sources.

In addition, if Hichilema agreed to stop challenging the 2016 election, this would seem to give legitimacy to the deceptions that produced such a flawed result, thereby giving us every expectation of seeing the same or worse in 2021. If Scotland imagines that she has made an agreement with Lungu, she is naive. But then this perhaps explains why Lungu gave consent to her intervention. Scotland and her envoy are easier to manipulate than Catholic Bishops who understand the cut and thrust of African politics as the ruthless pursuit of political power, and the slippery nature of trying to change the behaviour of a leader with authoritarian tendencies.

By contrast, Scotland has neither the experience of such politics nor of mediating in such a political dispute. She is instead relying on a vocabulary of “democracy, peace, good governance and the rule of law” which has little or no interpretive power for understanding African politics, but which has considerable potential for occluding the problem that she is supposed to be addressing.

Sishuwa Sishuwa is a Zambian historian and political commentator

This article first appeared in African Arguments.