Africa’s Authoritarian ‘Big Men’ Determine The Law

By Isaac Mwanza

“Our present rulers in Africa are in every sense late-flowering medieval monarchs…”
~ Chinua Achebe, Nigerian author in Anthills of the Savannah

Introduction

This fourth and last in series of these articles is intended to show that legislation in Zambia, and indeed the rest of the African countries, continues to be dictated by Africa’s post-independence authoritarian leaders. While giving kudos to Zambian President Hakainde Hichilema for his personal decision to repeal the law of defamation of the President, it is the view of the author that the journey to decriminalise defamation of the head of state, is far from over.

Is President Hichilema an authoritarian leader?

Authoritarian leadership, also known as autocratic, is a management style in which an individual has total decision-making power and absolute control over his subordinates and the institutions of state. When we say a President is an authoritarian leader, we simply mean that such a President makes decisions on national policies, procedures or law with little or no input from his or her members in Cabinet or other supporting institutions, and has absolute control over positions that his or her members of parliament take in the House.

It is safe to say that most, if not all, African leaders wear this jacket of authoritarian leadership and we are beginning to see this authorise streak developing in western countries, too, in the so-called free democracies where dissenting voices are labelled as anti-democratic. Those who question the leader’s choices, even on internal matters, are labelled as aiding those who are falsely labelled as enemies of democracy simply because they demand their right to be consulted before actions are taken, or policies are announced in their name. Such authoritarian attitudes are being claimed to be in the interests of “the people” even when the people are denied their right to be consulted on matters affecting their daily lives.

This author believes that our country, Zambia, has arrived at that point where unilateral decisions are claimed to have been taken “for the people of Zambia” without any consultation, not even through their elected representatives in Parliament. Information on new bilateral or multilateral agreements are not shared with the people in whose name such arrangements are claimed to have been made.

During a meeting hosted for the elites by the President at State House on Wednesday, 28th December, 2022, President Hichilema made interesting self-praise remarks which were meant to earn him some applause from his invited delegates. The remarks alone describe the authoritarian leadership Zambia is likely to witness in the President’s first term of office where he admitted that he is in a hurry to make substantial law reforms. President Hichilema told his cheering audience:

“…the removal of the criminal defamation of the President is equally important. I must confess here this is one decision that I carried and overruled Cabinet (applause) because many were unhappy about it. They said because the President is being insulted every day. And after all, secondly this is an old law. Even in other countries, Presidents are protected… the victim must actually reflect and solve the problem. This is where I am standing (applause). We are very delighted that we have taken away the criminal defamation of the President.”

We must face the reality that Zambia will continue to be hobbled by “Big Man” politics, the all-wise Father-Knows-Best whose decisions everybody must praise, regardless of the consequences or implications. President Hichilema has become one of Africa’s “Big Men” whose power and pretensions to power, border on the imperial.

The President’s supporters have mounted a robust campaign, moving from one door of private business to another, demanding that his official photograph is mandatorily displayed in a place of honour regardless of the fact private premises are not required to display the President’s Portrait, but may do so as a matter of choice. Others of his supporters have taken to social media, especially video clips, portraying themselves as the defenders of the President’s honour and policies and threatening to do physical harm to any person or organisation which may be seen to oppose the President’s views, policies or programs.

Notably, the President has made no effort to directly confront and stop his supporters from such unacceptable behaviour, or to condemn these supporters directly. Meanwhile, the President’s foreign supporters in the west praise him as a beacon of hope for democracy in Africa.

Africa’s present-day “medieval monarchs” rule with few checks and balances from courts and legislatures. In simple terms, they control the level of checks and balances which can be offered to the leadership. In Zambia, the President has a strong hand in the deciding as to who leads both the Judiciary and Legislature and, to an extent, what laws must pass or fail.

In 2019, after a night of voting in the House of Commons to further delay the Brexit date, British Labour MP Barry Sheerman accused senior Tories of being the undead, ‘we all had a late-night last night’ but Brexit secretary Stephen Barclay was a ‘zombie secretary with zombie ministers’. Caution: Such a word as zombie cannot be used on the floor of our rigid National Assembly to refer to a Minister or an MP as a zombie or zombies. A simple remainder that everyone in the National Assembly of Zambia was old enough to shave pubic hair attracted suspension of an MP from the House. That is the Zambian Parliament we have carried over into 2023.

The President appoints the head of the judiciary, as well as those who serve as Judges of the superior courts; he appoints all members who sit on the Service Commissions, Judicial Complaints Commissions, Director of Public Prosecutions as well as heads of investigative wings, giving the President plenty of leeway in deciding who gets to be removed from office if they don’t sing the same hymn. Here in Zambia, we have recently witnessed the arbitrary and unilateral removal of the Director of Public Prosecutions from office without following the constitutionally-stipulated procedure, in true strongman style.

Our latter-day “medieval monarchs” in Africa have usurped the traditional authority of African tribal chiefs and welded it to the power of the modern state. The extent to which President Hichilema did and will overrule his Cabinet on key legislative reforms is frightening. In the corridors of power, some whispers are getting ever louder, that the executive wants the Constitution amended in piecemeal to allow his Chief Justice take control over the Constitutional Court, and that may explain why he has not yet appointed the Judge President of that important Court.

It is also being said, in somewhat loud whispers, that the President wants the ten-year tenure for his Chief Justice to be removed from the Constitution so that there is no limit as to the length of term of office for the Chief Justice. They want him to save limitless against the very wishes of the people who agreed to limit the term of office for the Chief Justice to ten years.

All this sounds suspiciously like preparation for constitutional changes to allow the removal of constitutionally fixed term limits to allow constitutional office holders who are restricted by term limits to serve as long as they have control of the vital and necessary levers of power.

We have recently witnessed this in Ivory Coast where, the Ivorian President is now serving an unconstitutional third term when his chosen successor died suddenly just before the election. Instead of calling for fresh nominations, the President appointed himself as the new candidate and, with the acquiescence of his constitutional court, took up an unconstitutional third term which his western supporters claimed, was necessary to avoid chaos in the country.

Criminal DEFAMATION OF THE PRESIDENT – The Unfinished Business

The repeal of Section 69 of the Penal Code, does not effectively abolish the law that penalises people who were previously charged with the crime of defamation of the President. This is so because the Penal Code continues to make defamation an offence under Sections 191 and 192 of the Code, which reads:

“[Defamation]
191. Any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed “libel”.

[Definition of defamatory matter]
192. Defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. It is immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead:

Provided that no prosecution for the publication of defamatory matter concerning a dead person shall be instituted without the consent of the Director of Public Prosecutions.”

In fact, a citizen or any other person in Zambia, can be criminally charged under Section 71 of the Penal Code for defaming a foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Zambia and the country to which such prince, potentate, ambassador or dignitary belongs. The defamation of foreign princes is punishable by imprisonment for a term not exceeding two years or with a fine or with both.

As you may clearly see from the Penal Code, criminal defamation still exists. It may actually be too early for certain sections of society to celebrate, in the mistaken belief that criminal defamation has been abolished as is being alleged. This work is far from being finished until Parliament goes back to the drawing board and repeals these provisions from the law. The very reason why past Presidents did not repeal Section 69 in isolation, was that it would not really end criminal defamation, in practice, of the President. People can still be charged under these latter provisions that still exist in the same Penal Code.

Conclusion

The nation must remain alert to what is happening among our three arms of government. One does not really need to care much with what happens between the Executive and our Parliament because, in principle, the Executive has a full grip on our Legislature. But this must never be allowed to be so with the Judiciary, the last institution in our defence of the Constitution and our rights as citizens. In my previous articles, it has been shown that the death penalty in Zambia still remains constitutional until the time we shall either amend the constitution or repeal and replace it with a new one. Finally, it has been demonstrated that criminal defamation still exists in our statutes, and therefore a person who defames the President, can be charged for criminal defamation in Zambia under Sections 191 and 192 of the Penal Code.

This author thinks that we celebrated too soon.