Analysing Sishuwa’s claims

By Dr. O’Brien Kaaba, Dr. Priva Hang’andu* & Ringford Abel Mwelwa

Part II

Continues from Part 1

4. Capturing the Judiciary and Electoral Commission of Zambia

Sishuwa’s article raises concerns about the government’s alleged plan to capture the Courts and the Electoral Commission of Zambia (ECZ). While he portrays this as a new development, it fails to provide the necessary context. In our perspective, due to historical factors, the Executive has overshadowed institutions in Zambia. This imbalance has long been recognized as an issue in the country’s democratic reform agenda and is often associated with calls for constitutional reforms. Although urgent reform is required, it would be unfair to solely blame President Hakainde Hichilema as the creator of this problem. However, he can and should play a crucial role in the reform process. The 2013 African Peer Review Mechanism country report on Zambia identified the lack of separation of powers, an overly dominant executive, and inadequate accountability as structural issues affecting government institutions. The report also highlighted the pervasive system of political patronage, which renders all state institutions subservient to the President.

It is important to note that despite these challenges, individual judges and commissioners have been able to make professionally sound decisions, leading to court rulings against the government and electoral decisions that go against the ruling party’s interests. This demonstrates that the institutions can function independently. While the current appointment system lacks credibility, it does not mean that every judge appointed has been part of a deliberate scheme to pack the courts. For instance, the appointment of Chief Justice Mumba Malila was widely acclaimed for his impartiality, integrity, and competence. However, there are judges on the bench who are not fit for their roles. What is needed is a credible system for the appointment and removal of judges, and attention should be given to addressing the problems with the current constitutional court. Our view is that the constitutional court should be abolished, and a more diffused model of constitutional adjudication should be adopted.

Regarding the ECZ, Sishuwa points to the exclusion of two opposition candidates from recent by-elections as an example of its capture. However, it should be noted that President Hakainde Hichilema had not yet appointed any new commissioners at that time, and the Commission was still governed by Commissioners appointed under the previous regime. The President appointed two new commissioners only after the by-elections. It remains to be seen how the Commission will function going forward. The new chairperson appears to recognize the weight of public expectations and has shown an honest and open appreciation of the public discontent towards the Commission.

Furthermore, Sishuwa fails to provide a balanced perspective on the composition of the ECZ. The Commission has a total of five Commissioners, and since the President appointed only two new commissioners, the next election will be managed by three commissioners appointed by the previous President and only two by the current President. If Sishuwa’s argument is that commissioners are beholden to the appointing authority, it should be acknowledged that the commissioners appointed by the new President will be in the minority and potentially outvoted. This important factor is not addressed in Sishuwa’s argument.

It is evident that reforming public institutions is crucial and urgently needed to consolidate Zambia’s democratic gains. However, it is important to distinguish between the institutional weaknesses imposed by the country’s history and a deliberate plan to manipulate the judiciary and the ECZ to win elections at any cost.

5. Weakening Opposition Parties

Sishuwa suggests that one of the government’s strategies to win the next election is to weaken opposition parties, particularly the Patriotic Front (PF) and the Socialist Party (SP). He claims that the government intends to de-register the PF and charge and convict former President Edgar Lungu, disqualifying him from standing in the election. These claims lack merit and legal basis.

Regarding the de-registration of the PF, the Societies Act is the empowering law, and the Registrar of Societies indicated that the party had not complied with the requirement to furnish the list of office bearers. While the Societies Act has undemocratic provisions, the requirement to disclose office bearers is a standard practice in political party regulation worldwide. Sishuwa fails to explain why the PF did not comply with this requirement and instead shifts the blame to the government. However, it should be noted that the PF was not de-registered despite its non-compliance. The Registrar demonstrated forbearance and tolerance in this regard, unlike the previous PF government’s actions toward the MMD when it came to power in 2011.

Sishuwa’s argument about charging and convicting Edgar Lungu to disqualify him from the next election lacks credibility for several reasons. First, there is no indication that the government desires to move parliament to remove Lungu’s immunity. Second, Lungu enjoys presidential immunity for acts committed during his presidency, and his immunity can only be lifted by a two-thirds majority in parliament, which the current government does not have. Without cooperation from PF MPs, who are unlikely to vote for the removal of Lungu’s immunity, any attempt to charge and convict him would be futile.

Regarding the SP, Sishuwa claims that the ruling party targets it because it has been winning by-elections and threatens to dislodge the ruling party. However, it is important to clarify that the SP has only won two local government seats so far, which cannot be described as a “string” of victories. These wins occurred in areas previously dominated by the PF. While it is possible that the SP is benefiting from the decline of the PF in its strongholds, there is inadequate data to make sweeping conclusions. Recent Afrobarometer survey results suggest that the approval rating for the current government has actually increased.

Sishuwa also alleges that the government plans to arrest the SP leader, Fred M’membe, on trumped-up gun charges. However, Fred M’membe was already arrested during a by-election campaign in Serenje on allegations of discharging a firearm at UPND supporters. The case is currently before the court, and we will not comment on its merits. Nonetheless, it should be noted that in a press statement, Fred M’membe himself confirmed that he discharged the firearm in self-defense. These facts do not support Sishuwa’s conspiracy theory against Fred M’membe. In fact, the Supreme Court’s favorable judgment in 2022, reversing the liquidation of M’membe’s newspaper, The Post, which occurred under the PF regime, contradicts Sishuwa’s claim of co-optation of the Supreme Court to target M’membe.

6. Covering up Corruption

Sishuwa argues that the government’s strategy to retain power includes hiding corruption. However, he fails to provide specific instances where President Hakainde Hichilema obstructed investigations. The Ministry of Finance scandal mentioned by Sishuwa is still under investigation, and the Anti-Corruption Commission (ACC) Director General has stated that full details will be disclosed to the nation upon conclusion of the investigation. It would be premature to assume that the government will not fulfill this promise. Sishuwa’s claims that the ACC chairperson is planning to leave the Commission due to frustration are within his personal knowledge and cannot be commented on.

It should be acknowledged that corruption exists under the current government. Our contention, however, is that there is no evidence to suggest that the President is shielding his officials from investigation.

7. Conclusion

In responding to Sishuwa’s article, we do not intend to present an image of a perfect government. On the contrary, we appreciate Sishuwa’s efforts to stimulate public discourse. Our aim is to encourage a discourse based on coherent logic, facts, and rigorous analysis. We reject the use of anecdotal evidence to support predetermined conclusions. As leaders in academia and public policy, we strive to promote open and fact-based discussions on national matters. While we do not seek to homogenize thinking among political and policy commentators, we strongly advocate for evidence-based analysis.

It is important to acknowledge the shortcomings of the current government, including poor information flow, lack of citizen engagement, and delays in constitutional and institutional reforms. However, when measured against standard governance criteria, we believe that the positive achievements outweigh the negatives. Notable improvements have been made, such as the reform of certain laws, enhanced funding to local government, reduced political violence, increased employment opportunities for youth, fiscal discipline, and improved support for oversight institutions. Independent institutions are also free to carry out their work without interference from the Executive. Vigilance in holding those in power accountable should continue to ensure their adherence to principles of good governance.

^{*Disclaimer: Dr. O’Brien Kaaba is a law lecturer at the University of Zambia; Dr. Priva Hang’andu works for the Canadian Institutes of Health Research (CIHR); and Ringford Mwelwa is a doctoral candidate in media and communication studies. The opinions expressed in this article are solely those of the authors.}