By Isaac Mwanza

Since 1964, Zambia has been a constitutional democracy, which is alleged to be governed by the rule of law. However, adherence to the Constitution and enforcement of constitutional provisions is quite questionable and demonstrably weaker in Zambia than in other similarly described countries such as Kenya and South Africa.

In 2016, Zambians made extensive changes to the Constitution of Zambia Act, 1991. These changes led to the establishment of 18 independent Commissions and other offices under Part 18 of the Constitution.

This article focuses on why Zambia has independent commissions and offices established by the Constitution, and what their roles should be in a democracy.

Among the 18 independent Commissions, 7 are Service Commissions and 3 are investigative Commissions, which in in our daily life we loosely refer to as law enforcement agencies.

The remaining 8 Commissions cover elections, human rights, gender, emoluments in the public service, land, audit, complaints against police actions and complaints against judges of our superior courts in their individual capacities on matters of their conduct.

The Office of the Public Protector and Auditor-General are other independent offices created by the 2016 constitutional amendments.

But there are also other statutory commissions established in Zambia by ordinary law. Such commissions include the Zambia Law Development Commission (ZLDC) and the Citizens Economic Empowerment Commission (CEEC).

The others are Competition and Consumer Protection Commission (CCPC), Securities and Exchange Commission (SEC) and National Food and Nutrition Commission (NFNC).

The repealed provisions of Article 109 clauses (2) and (3) of the 1991 Constitution and later Article 123 of the 1996 Constitution provided a foundation upon which the National Assembly established those statutory commissions. Those provisions no longer exist in the current Constitution.

Although Commissions are a drain on limited public resources, President Hakainde Hichilema’s administration has advanced its ambition to also establish the Minerals Regulation Commission (MRC).

Our Part 18 Institutions are called independent commissions and offices. They were created with the intention of taking them outside the control of the political establishment and the Executive branch of government.

Article 216 of our Constitution is what gives these bodies independence to ensure their impartiality and fairness in the discharge of their functions.

They are therefore a group supposedly free from political control so they can work towards a specific goal for the country or state. They are not to be influenced or dictated by politicians, senior bureaucrats or any other person or institution, including the President and his ministers.

We can call these Independent Commissions and offices as the fourth arm of the State considering their autonomous nature.

In Kenya, these Commissions and offices are referred to as Chapter 15 Institutions while South Africa calls them Chapter 9 institutions. In these countries, independent bodies have brought about fundamental changes in the values and practices of state officials and the nature and objectives of the state.

When it becomes necessary to protect their constitutional mandate or advance their interests, these institutions do sue other institutions and members of the executive or judicial arm of government.

In the face of the fact that Zambia has both Commissions created by the Constitution while others are established by statute, a thin or blurred line exist between these two types of Commissions.

It is understandably not easy for laypersons and lawyers (including some of our jurists) to distinguish and appreciate the importance of these independent bodies from statutory commissions.

One notable difference between constitutionally-established commissions from statutory ones is the modus operandi of their functioning. These Independent commissions are established based on the need to remove political, tribal, regional or partisan control over these institutions.

This was to mark a break from a historical past of their excesses, secrecies, mysteries and partiality in the discharge of functions since independence. And in the exercise of their everyday functions, independent bodies are bound by constitutional principles and values such as constitutionalism, good governance, non-discrimination, accountability, transparency, among others.

However, just like the Judiciary, factors that adversely affect the independence of these Commissions include how their members are appointed or removed from office. Appointments to independent Commissions are engraved in Articles 240 and 173(1) of the Constitution as read together with Section 4 of the Service Commissions Act.

We as citizens remember – even if leaders from our three organs of Government do not – that the Constitution itself require the appointment of members to these commissions to be done on the basis of merit, equal and adequate opportunities. In addition, the law also requires qualification, competence, suitability, relevant experience and good behaviour as a prerequisite for appointments.

Those who are being appointed as commissioners ought to have declared their assets and liabilities, which is not happening in blatant violation of our Constitution.

It is true to state that when persons are being considered for appointment using the ancient practice shrouded in secrecy and mystery, political stooges get to be appointed while independent minds are left out.

The question on removal of members of independent commissions has also sadly been left to subsidiary legislation.

Once appointed, a commissioner can be removed by a process that again gives the President and other bodies a major role – threatening the Commission’s independence. Members of independent institutions are dismissed at the instance of a sitting President or Minister.

Commissions such as the Judicial Complaints Commission do submit to the wishes and demands of a powerful executive President.

It is now a persistent trend in Zambia that members of independent bodies get unconstitutionally removed and discriminately discharged out of a political vendetta or on very flimsy reasons.

It should however be clear at this point that together with a strengthened judiciary, independent Commissions and offices should have represented a significant restructuring of Zambia’s key State institutions that were once weak.

Sadly, independent Commissions and offices have continued to operate in a way which is similar to how they did during the one-party era. The environment under which these bodies operate remain the same.

All bodies in Zambia, regardless of whether they are independent or statutory, have been forced to continue serving and acting on behalf of and under control of the politicians who may be in power at a particular time.

The superiority of independent bodies in Kenya and South Africa over the ones in Zambia has much to do with the constitutional roles that those bodies perform and the security of tenure which their members enjoy in those countries.

Under Article 181 of the Constitution of South Africa, Chapter 9 Institutions have a clear mandate of protecting and strengthening South Africa’s democracy.

In Kenya, independent commissions and offices are constitutionally designed to protect the people’s sovereign power, ascertaining that all state organs observe democratic values and principles.

In those countries, independent bodies are protected in different ways by the Constitution. The courts in Kenya and South Africa boldly enforce independence of these commissions and offices even when it may be attractive and rewarding to make decisions that please the executive arm of government.

It is not easy in Kenya to dismiss members of independent bodies in those countries because their constitutions have demanded a procedural dismissal process.

On the other hand, the salaries of members of these independent commissions and offices in Kenya are at the same scale as those of judges of the superior courts and are a charge on the consolidated fund. This means that they are not voted on annually or discussed in Parliament.

How then can we make our independent commissions responsive in Zambia?

The courts ought to play a vital role in ensuring that independent commissions and offices are made and operate subject to the Constitution first before any other law as required by Article 216 of the Zambian Constitution.

Our courts have a big role to protect constitutional principles and values, including Article 173 values, which binds national, provincial and local government levels as well as all State organs and State institutions.

Secondly, there must be true political will to ensure each independent commission becomes a self-accounting institution which deals directly with the Ministry of Finance.

There should be adequate funding for these commissions to enable them effectively perform their functions.

Thirdly, non-state actors and the Commissions themselves must rise to the occasion to ensure that they are legally protected as independent bodies which are fully discharging their constitutional functions.

The task thus remains with persons and institutions to do their part.

In this decade, civil society groupings in Zambia can learn from their counterparts in Kenya and South Africa and step into the ring.

NGOs ought to abandon their constant roles of being voices for never-ending processes of amending the Constitution. They must instead seize the opportunity provided by the Constitution itself to present their grievances to competent courts of law.

We must never tire out in demanding for institutional reforms, adherence and respect for our Constitution, and its principles and values.

[For any feedback and contributions, write to [email protected]]

Published by the Daily Nation, May, 2023

By Sean Tembo – PeP President

1. During his press conference held on 19th May 2023, President Hakainde Hichilema decided to use a graph to depict the trend in Zambia’s real gross domestic product (GDP) over the years, since independence in 1964. The President used the graph to try and argue that whereas GDP fluctuated from growth (positive) to decline (negative) during the tenure of all his six predecessors, it was on a constant growth path under his tenure. I must admit that l found the President’s argument in this regard rather mischievous, for a number of reasons which l will explain below.

2. Firstly, anyone who did a macroeconomics course during their tertiary education is familiar with the concept of economic cycles. This concept simply illustrates the fact that any economy will generally be characterized by peaks and troughs. Meaning that periods of economic growth will soon be followed by periods of economic decline which will soon be followed by periods of economic growth again, and so on and so forth. Of course that does not mean sound economic management has no role to play, it does. However, the role or objective of sound economic management is merely to prolong the peaks and minimize the troughs.

3. In presenting his graph, the President divided the timeline into four components representing the four political parties that have run the affairs of this nation since independence, being UNIP, MMD, PF and the current UPND. He also color-coded the timelines on the graph accordingly, attaching black to UNIP, blue to MMD, green to PF and red to UPND. He then went on to point out that during the UNIP, MMD and PF administrations, the economy was not on a constant growth path but was fluctuating between growth and decline, but under his UPND administration, it is on a constant growth path.

4. The President’s graph was mischievous because his administration has not been in office long enough to complete a full economic cycle whereas UNIP was in office for 27 years, MMD for 20 years and PF for 10 years, compared to UPND which has been in office for one year and some months. Therefore, President Hakainde Hichilema’s assertion that he is a better economic manager than all of Zambia’s past six Presidents is patently false. Equally, his graph is inherently flawed in more ways than one. Besides, GDP growth by itself is not an accurate measure of the economic wellbeing of citizens.

5. If the President honestly wanted to illustrate a trend in the economic wellbeing of the Zambian people since independence, he should have used Per Capita GDP, which by the way significantly declined in 2022, which is the first full year in which he managed the economic affairs of the nation. But just to put things in perspective, our Per Capita GDP has been systematically declining since independence. That means the Zambian people were economically better off under colonial rule than they were under UNIP, and much better off under UNIP than they were under MMD, and much better off under MMD than they were under PF, and much better off under PF than they are today under UPND. These are economic facts that are unadulterated by politics.

6. Therefore, l agree with Father Salangeta, the Catholic Priest when he said the people cannot eat that graph. Indeed, there are some economic graphs that represent food on the table for citizens, but that one presented by President Hakainde Hichilema is not one of them. That one is not even an economic graph, it is merely a boasting graph prepared and presented by a President who is too eager to be rated as the best President Zambia ever had since independence. I am not saying President Hakainde Hichilema cannot attain such a feat, he can. But it will require more of hard work, patriotism, competence and focus, and less of premature boasting, intolerance and preparing bogus graphs.

7. Another matter that sent a shiver down my spine is the venom with which the President responded to Father Salangeta. The good priest did not insult or demean the President in any way. He merely expressed the plight of his poverty-stricken congregants like any good community leader should. So for the President to respond by implying that the priest is illiterate and should go back to school, was unnecessarily harsh, especially coming from the Head of State. By virtue of being President, Mr. Hakainde Hichilema must understand that he is a father to all of us regardless of his age. And a good father should be tolerant to the cries of his children.

8. Lastly, the President should work on the issue of honesty and integrity in his engagement with the Zambian people. His insatiable appetite for self-praise seems to be driving him into concocting falsities that would portray him in good light to the Zambian people. He seems to be very eager to deliver good news to the people, which in itself is not a bad thing, except for the fact that his actions are often incapable of creating good news, so he ends up fabricating the good news, which of course eventually unravels and paints him as a joker in the eyes of the public. Examples in this regard are many, including the China soya beans deal, bogus graphs, Elon Musk Starlink Internet etcetera. My take is that the President knows that his lies will eventually be exposed and that he will be subjected to public ridicule once they are, but he nonetheless goes ahead and presents fabricated success to the people, just so that he can enjoy a moment of praise, even though the praise is shortlived and is soon replaced with ridicule. He is like a cocaine addict who plunges a needle into their veins, for a temporary high, even though they know that the “high” will not last long and will soon be replaced with pain and suffering. Am sure psychologists have a name for what President Hakainde Hichilema suffers from. But l would like to call it Attention Deficit Disorder or ADD.

By Dr. O’Brien Kaaba

On 23rd December 2022, President Hakainde Hichilema assented to the Penal Code (Amendment) Bill No 25 of 2022 which repeals section 69 of the Penal Code and effectively abolishes the crime of defaming the President.

The provision was introduced by the Kaunda regime soon after independence to stave off increasing criticism from Harry Mwaanga Nkumbula’s ANC and almost immediately led to the arrest, conviction and sentencing to a term of imprisonment of Mungoni Liso, the ANC secretary general. Ever since, a litany of citizens has been jailed for the offence.

The abolition is a momentous development, considering that all previous presidents rationalised the need for this law, and more importantly, the Judiciary as guardian of constitutionalism, abdicated its responsibility and joined the retinue of praise signers, churning out dangerous jurisprudence that elevated the president above constitutional limitation.

I argue in this article that the decision by the Hichilema government to abolish the crime exposes how defective and incompetent the Zambian judiciary has been at holding the Executive in check as the abolition now shows how defective the collective ‘jurisprudence’ of the Zambian judiciary has been. Instead of declaring the provision unconstitutional, as several common law jurisdictions did and for good cause, the Zambian Courts abandoned all sense of constitutional adjudication and crafted an intellectually impoverished jurisprudence insulating the president from scrutiny, criticism and irreverent language.

In explaining the role of the judiciary in the destruction of constitutionalism in Africa, human rights lawyer Chidi Odinkalu asserted: “The first question of the constitutions and Bills of Rights in common law Africa was destroyed not so much by the intolerance of the executive as by the enthusiastic abdication of judicial responsibilities by the persons and institutions mandated under those constitutions to perform them, coupled with a readiness to share across national borders the wrong models and bad precedents.” This rings true of the Zambian judiciary, as demonstrated by their handling of the constitutionality of section 69 of the Penal Code.

The courts have often vacated their role as a co-arm of the state, enforcer of constitutional norms and reduced themselves into presidential soothsayers and sycophants. In the case of M’membe and Mwape v. The People (1995 – 1997) ZR 118 (SC) challenging the constitutionality of section 69, for example, the Supreme Court readily accepted mere assumption and wild speculation by the lower court that the trial judge “was not in error when he considered that section 69 was reasonably required, in effect to forestall a possible unpeaceful reaction from the citizens and supporters and to protect the reputation of the first citizen” and went further to rationalise: “I do not consider that there can be any who would seriously dispute that side by side with the freedom of speech is the equally very ‘important public interest in the maintenance of the public character of public men for the proper conduct of public affairs which requires that they be protected from destructive attacks upon their honour and character’.” As if this is not enough, the Court went on to sing: “The election of any person to the office of President, I would have thought to be self-evident, has legal and constitutional consequences, quite apart from any other result.
The Constitution itself ordains that he become Head of State and of Government; that the executive power of the state vest in him and that he be endowed with the various matters, powers and functions described in the Constitution.

I do not see how it can be argued that the President should stand before the law equally with the rest of us when, for example art 43 grants him immunity from civil or criminal suit while he occupies that high office.

If the Constitution itself makes the President not equal to everyone else, how can the accused’s arguments be maintainable?” The sad consequence of such decisions has been to elevate the President, from being a servant of the people, to being an elected emperor, with little effective means of keeping him or her in check.

This is by no means an isolated case. It is the entrenched culture of the judiciary, that has manifested itself in several other situations. In many cases involving citizens insulting or crudely criticizing leaders, the Zambian courts tend to always decided in favour of leaders, throwing away the dictates of liberal democracy and seeking refuse in some nebulous cultural beliefs.

Two examples can be given here. The first is the case of Attorney General v Roy Clark (2008) 1 ZR 38, involving the deportation of Roy Clark, who had written a satire in the Post newspaper, depicting the figure of an elephant he named Muwelewele, described in un-flattery language, taken by some to refer to President Levy Mwanawasa.

The Supreme Court was not pleased with the use of such language, and stated in part: “What we ourselves find irritating and offending are the reference to the concerned person’s physical appearances in crude language.” The Supreme Court considered the use of crude language by Clark to be “un-Zambian,” suggesting that this is something alien to the Zambian culture.

It stated: “The Respondent is also an old man, who has insulated himself from the realities of the Zambian cultural environment and is impervious to the cultural values and norms of the Zambian people, who, according to the learned trial Judge, the Respondent has lived for over forty years.” The Court went further to say: “In Zambia, one can criticise or poke fun at the Head of State and government leaders or indeed elders but this must be done in felicitous language and not in the crude language the Respondent used. We have no doubt that in every other country you cannot say and write things using words and expressions that are not in consonance with the cultural values and norms of the people of that country.”

Another case involving irreverent language is that of Fred M’membe and Bright Mwape v The Speaker of the National Assembly, the Commissioner of Prisons and the Attorney General. The applicants in this case allegedly used irreverent language in criticising ministers and parliamentarians in the National Assembly, through newspaper articles. Fred M’membe was alleged to have referred to one parliamentarian as follows: “Ernest Mwansa’s underwear is an imitation” and “Ernest Mwansa must shut up.”

The High Court held that the use of such language was contemptuous, especially when used when referring to an adult. The justification, as in the other case, was that such language offends Zambian culture.

The judge stated: “As a Zambian myself, I find it to be insulting and abusive language in Zambian society for anyone to refer to underpants of a grown-up man or woman. Such language degrades, dishonours, and reduces the respectability of the person referred to by the term. Similarly, telling an honourable member of parliament and a minister to shut up is humiliating, though on a lesser degree than the mention of his underpants.”

The claims by judges in these cases are not based on truth or any verifiable facts. There is no Zambian language that does not contain insults. For whom are those insults intended? Just for ordinary mortals but not leaders? There is no evidence that African or Zambian language forbids use of irreverent language on leaders. In many traditional societies, leaders were the target of the wrath of society and often recipients of crude scathing criticism.

The late Nigerian lawyer and political scientist, Claude Ake argued that in many traditional African systems, accountability was stricter than even in modern Western societies and chiefs were sternly criticised and insulted: “Chiefs were answerable not only for their own actions but for natural catastrophes such as famine, epidemics, floods, and drought. In the event of such disasters, Chiefs could be required to go into exile or “asked to die.”

Perhaps a better known demonstration of democracy in traditional African societies is to be found in Nelson Mandela’s autobiography (“Long Walk to Freedom”). Mandela was raised by his uncle who was a chief/regent.

In describing how decisions were made, Mandela notes that no conclusion was forced upon people but instead all the people were heard, regardless of how stern their language was, and a decision was taken together. Mandela narrates how this was done: “Everyone who wanted to speak did so. It was democracy in its purest form.

There may have been a hierarchy of importance among the speakers, but everyone was heard, chief and subject, warrior and medicine man, shopkeeper and farmer, landowner and labourer. People spoke without interruption and the meetings lasted many hours.
At first, I was astonished by the vehemence- and candour – with which people criticised the regent. He was not above criticism – in fact, he was often the principal target of it. But no matter how flagrant the charge, the regent simply listened, not defending himself, showing no emotion at all.” (Emphasises the author).

The same can be said about many Zambian traditional societies. Use of crude or lewd language was not generally proscribed and on some occasions was in fact encouraged.

Dale and Smith, for example, in describing the Ila culture indicated that there were “occasions when lewd songs are not only permitted but are regarded as essential to the ritual…”

In fact, in many Zambian cultures and beyond, insults were institutionalised, often accompanying major rites and developments in life such as birth, puberty, marriage, ascension to the throne and other important social events. Moses Nii-Dortey and Edward Nanbigne have demonstrated that “nearly all cultures have contexts that elevate verbal and non-verbal insults to a ritual and institutional necessities.” To assert, as Zambian courts have, that insults are not part of Zambian or African culture, or that they would lower the status of the President, is simply not true.

What then is the basis of the decisions made by judges if they cannot be based on Zambian/African culture? Haynie has argued that such jurisprudence emanates from a judicial culture of timidity and sycophancy, in which judges see themselves as having a role in protecting the reputation of those in power.

In such circumstances, says Haynie, “judging is not black and white- judging is a process by which the grey is given the appearance of black and white.” Judges in such situations simply elevate their political sympathies to the status of law.

Such decisions damage the capacity of the judiciary to hold leaders accountable. By elevating leaders beyond the reach of ordinary people through crude criticism, leaders are divinised and insulated from their own people.

This should not be the role of a judge in a democracy. As former South African Deputy Chief Justice, Dikang Moseneke remarked, “a good judge does not suck up to authority or to anyone.”

In fact such crude language has a role in fostering constitutionalism and enriching democracy. Insults may often be the only tool available to the citizens to speak truth to power and in that sense have a powerful role in advancing constitutionalism and democracy.

As stated by Albie Sachs, a retired judge of the South African Constitutional Court: “A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health.”

Instead of kowtowing to the Executive, the judiciary should be inward looking and cure its lack of accountability to the citizens in the performance of its duties, often characterised by inefficiency in resolution of disputes and thinly reasoned decisions. It should similarly abandon outdated and self-serving conceptions of contempt of court based merely on commenting on matters before court or the often abused ‘crime’ of scandalising the court.

The author is a lecturer in the School of Law, University of Zambia