The dialogue games: with a third term all but assured, Lungu agrees to play

By Sishuwa Sishuwa

Zambians were recently surprised to learn of the commencement of a secretive dialogue process between President Edgar Lungu and Hakainde Hichilema, leader of the main opposition United Party for National Development (UPND), aimed at introducing institutional reforms on electoral law, judicial independence, media freedom and the police ahead of the country’s 2021 general election. Most people assumed, quite reasonably, that talks slated as part of the Commonwealth-brokered political settlement to diffuse heightened tension following the arrest of Hichilema on treason charges in April 2017 would never happen. After Hichilema’s release in August last year, little more was said about this dialogue and it appeared as if the entire exercise was simply a manoeuvre to have Lungu’s political nemesis released without the President losing face. Yet on 12 November, Lungu and Hichilema, accompanied only by their security detail, met at an undisclosed location under the auspices of Zambia’s Christian church leaders. Why then has this long-suspended process begun, and in secrecy? Two important reasons help explain this unexpected turnaround.

The first and most significant is the upcoming judgement by the Constitutional Court (ConCourt) on President Lungu’s eligibility to stand for another term in the 2021 election. To recap: Lungu was first elected in the 2015 presidential by-election following incumbent Michael Sata’s untimely death in office. He was then re-elected in the controversial August 2016 polls. The Constitution contains a clear two-term limit for the presidency, but Lungu’s supporters argue that his first term of just 18 months should not count as a full term. In January 2017, Lungu himself declared that he is eligible to stand in the 2021 elections and challenged opposing voices to seek the interpretation of the ConCourt. A few days later, four small opposition parties did just that, petitioning the court for ‘a declaration that President Edgar Lungu is eligible to contest the 2021 presidential election’. In response, the then influential Law Association of Zambia (LAZ) and the UPND, who argue that the opposition parties were proxies of Lungu, joined the case seeking a counter-declaration. Hearing in the case was concluded in May this year and the judgement comes on Friday, 7 December.

The ConCourt has been under heavy pressure to rule in favour of Lungu. At the height of trial in the case a year ago, Lungu sternly warned the ConCourt judges that a ‘brave’ and ‘adventurous’ judgement against his plans would ‘plunge this country into chaos’. If the 7 December judgement goes in his favour, much of the public may conclude that Lungu’s thinly veiled threats to a Court that many Zambians already perceive as being predisposed towards him and whose judges were all appointed by him – even though none of them met the constitutional qualification to serve on it – proved effective. It is highly likely that Lungu is now operating from this premise: that as far as he is concerned, a third term is all but assured and he can now turn his attention elsewhere. A judgement that endorses his wish to stand for a third time will be hardly surprising given this steady encroachment of the presidency upon the judiciary and the increasingly fragile status of the rule of law in Lungu’s Zambia. Exhibiting a total disregard for the rule of law, the governing Patriotic Front (PF) has also publicly declared, even before the ConCourt pronounces itself on his eligibility, that Lungu would be the party’s presidential candidate in 2021 and assorted campaign materials in the form of cars, bicycles and apparel branded ‘Edgar Lungu 2021’ have already been procured and are being distributed countrywide.

Given this context, a judgement from the ConCourt that Lungu is eligible to seek another term of office in 2021 would be highly controversial and many of his political opponentscan be expected to condemn it, though it is also likely that criticism of the verdict will be hushed. A few days ago, in one of the most bizarre cases and interpretations of contempt since the country’s independence from Britain in 1964, Zambia’s Supreme Court convicted and sentenced to six years imprisonment Gregory Chifire, a civic activist who questioned one of its recent judgements in a high-profile commercial case involving enormous financial stakes. As well as the severity of the sentence handed to Chifire, it remains unclear if the procedure adopted by the Supreme Court in the case is legal and constitutional. The point though is that this verdict is likely to intimidate and silence many potential critics of a ConCourt judgement that is favourable to Lungu. However, even if people are to perceive the judges as having given in to presidential pressure and consequently gather the courage to denounce the judgement, Lungu is unlikely to care much as he would have secured his primary wish: to be on the ballot of Zambia’s 2021 election.

Lungu’s decision to begin the dialogue now should be understood in this changing political context. Participating in this dialogue allows him to shift the narrative that would follow an unpopular judgement on his eligibility towards the need to focus on resolving the political differences that remain ahead of the 2021 elections. Lungu is also likely to respond to any criticism of a judgement that is favourable to him in a way that has the potential to wrong-foot his critics. He may, for instance, argue that ‘the matter was properly before court, the courts have decided; let us respect judicial verdicts and turn our attention to other significant national issues such as the dialogue. I am committed to the talks, as demonstrated by my introductory meeting with the leader of the main opposition party, so let us get on with it’. As a result, the narrative is likely to shift from whether or not he can stand to the certainty that he will be a candidate in 2021 and the implications of his candidacy on the outcome.

A senior PF leader who spoke to me on condition of anonymity and who is both opposed to Lungu and convinced that the 7 December judgement will go Lungu’s way, thanks to the cited presidential pressure on the judges, predicted the breakup of the ruling party once the verdict is announced. While there might be murmurs of discontent from those who had hoped to succeed Lungu such as ex-Lungu loyalist and Lusaka lawyer Kelvin Bwalya Fube, a spirited internal opposition is unlikely to occur because the main potential challengers to Lungu have either been kicked out of the PF already or are in the departure lounge. The others are either too timid or are lacking in resources to mount an effective challenge against Lungu at the party’s 2020 elective conference at which he is expected to nominate an individual from Luapula Province to be his running mate in 2021. Lungu is likely to make this move to retain the support of the key Bemba-speaking constituencies and ward off the threat posed by Harry Kalaba, the former Minister of Foreign Affairs who hails from Luapula and now leads the opposition Democratic Party. He is also likely to maintain the PF’s working alliance with the former governing party, the Movement for Multiparty Democracy, to compensate for the possible loss of support that he might suffer in traditional PF bases. The remaining cohort largely consists of Lungu’s inner circle, a readymade set of corruptible political and business figures who pawn off the country for a few trinkets, who accumulate through brazen theft of public resources and massive sale of Zambian assets to so-called investors, and who strut around with self-importance when they are nothing but disposable playthings of even bigger global kleptocrats. This group is unlikely to be concerned about who leads the PF and Zambia as long as they continue to have the chance to engage in self-enrichment.

The second reason that explains why the dialogue between Lungu and Hichilema is beginning now relates to the changed context of its facilitation. Until the 12 November secret meeting, Lungu, who had earlier given the nod to the Commonwealth’s mediatory role in the aftermath of Hichilema’s release from prison, had vowed that he would never take part in the talks unless they were facilitated by the Zambia Centre for Interparty Dialogue (ZCID), a talking shop of the country’s main political parties. He thought a neutral body commended by UPND such as the Commonwealth would favour the opposition or was likely going to force him and the PF into uncomfortable positions. Hichilema, on the other hand, rejected the ZCID, dismissing the body as pro-PF, and insisted that the Commonwealth must lead the exercise. If any local institutions were to be assigned the role, Hichilema argued, then it must be the three main Christian church bodies: the Zambia Conference of Catholic Bishops (ZCCB, formerly known as the Zambia Episcopal Conference), the Council of Churches in Zambia, and the Evangelical Fellowship of Zambia (EFZ). Lungu scoffed at such demands, not least because he sought a more pliable body or figure. The most influential of the three church bodies was the ZCCB, then under the presidency of Telesphore Mpundu, the Archbishop of Lusaka Diocese, who was outspoken against human rights abuses by Lungu’s administration. At the height of Hichilema’s detention, for instance, Mpundu led the Catholic Bishops in condemning the arrest, denouncing the failure by key political institutions such as the police and judiciary ‘to stand up to political manipulation and corruption’, and branding the Zambian state under Lungu as a ‘dictatorship in all except designation’.

Lungu’s opposition to Hichilema’s proposition that the church mother bodies be accorded the chance to lead the dialogue stemmed from a fear that doing so would embolden Bishop Mpundu, whom he viewed as difficult to manipulate and possibly a supporter of Hichilema. It was partly this deadlock that saw the dialogue process shelved. This context changed recently when the ZCCB president Mpundu, who was only freshly re-elected to the position, retired under curious circumstances. The official explanation is that Mpundu was discharged on medical grounds, but sources within the Catholic Church allege that the Zambian government lobbied the Apostolic Nuncio, the Vatican’s diplomatic representative in Zambia, to have him quietly retired. His successor, Alick Banda, is a much less forthright figure and someone Lungu can be more comfortable with. When the straight-talking Mpundu issued the earlier-cited condemnation of Lungu’s administration on behalf of the Catholic Bishops, Bishop Banda quickly distanced himself from the statement and criticised Hichilema’s failure to accept the ConCourt’s judgement in favour of Lungu over the challenged 2016 election results. With a favourable leadership at the helm of the influential ZCCB, and given that many regard the other Christian bodies, CCZ and EFZ, as riddled with pro and anti Lungu factions, Lungu now feels confident enough to proceed with the dialogue, partly to also reinforce his claim that the dialogue does not need the intervention of foreign organisations such as the Commonwealth. Hichilema, who appears to have overlooked this changed context of ‘the church mother bodies’ ahead of his secret meeting with Lungu, has effectively locked himself into the talks since he cannot now turn around to criticise the very local institutions that he had demanded must facilitate the dialogue. Already, many Zambians are uncritically praising Lungu for demonstrating leadership by ‘conceding’ to his opponents’ demands. When talk is cheap, Lungu agrees to play.

Three scenarios are now possible. One is that Lungu will allow the talks to drag on until the 2021 elections. Another is that Hichilema, belatedly realising his naivety, may quit the negotiations when he understands how little can be achieved through them. Well-placed UPND sources told me that what Hichilema wants to get out of the talks is the resolution of a key set of issues such as the partisan implementation of the Public Order Act, the partiality of the police, the unequal access to the public media, a faulty national constitution that does not promote accountability and the need for both a truly independent electoral commission and a judiciary that is not susceptible to financial and political interests. The thirdscenario is that the dialogue will go all the way and result in some kind of resolutions pertaining to the cited issues, which Lungu will then calmly ignore, as he is unlikely to institute any reforms that would undermine his re-election prospects and also because there is no binding mechanism to enforce any agreements reached through these dark-corner meetings.

Behind all this scheming is Lungu’s determination to win the 2021 elections. With his eligibility to stand almost certainly confirmed, he has a high chance of doing so as it is likely that not even a weakened ruling party and an unpopular incumbent will be enough to help the UPND win power. The beginning of the dialogue process, alongside the fact that nearly all the UPND’s legal challenges to Lungu’s re-election were ‘coincidentally’ disposed of in favour of the incumbentaround the time of their secret meeting, means either that Hichilema has tacitly accepted that the 2016 elections were legitimate, or that Lungu has successfully frustrated his opponent’s legitimate challenge of his electoral defeat and the probable use of state institutions such as the police, the Electoral Commission of Zambia (ECZ) and the public media to rob him of victory. Lungu can therefore use the same methods and strategy he deployed to win the previous poll, relying on the use of force and these supposedly neutral state institutions and the judiciary to perpetuate his stay in power. Ifanything, these institutions are more closely under executive control now that Lungu has firmly established his grip on power than they were in 2016. The UPND appears to have no strategy to deal with the PF’s use of state institutions and resources.

Also likely to help Lungu’s re-election in 2021 is the fragmentation of the opposition forces, which makes the manipulation of the election results much easier especially since the PF, according to Ministry of Justice sources, plan to soon remove the “50 per cent + 1” clause from Zambia’s Constitution. The UPND’s narrow loss in 2016 was actually in relatively favourablecircumstances, as it was helped by the absence of other credible opposition parties or prominent political figures standing. 2021 is likely to be different. Two former leading PF ministers have formed their own parties. Chishimba Kambwili, the former Minister of Information who now leads the National Democratic Congress (NDC), and Kalaba will likely contest the presidential election and have shown fewsigns of being willing to work together constructively against the PF. In sum, a combination of control of state institutions and the fragmentation of the opposition will likely deliver for Lungu the third term in office he desires.

In any case, none or few of Lungu’s main political opponents may be on the ballot in 2021 as the ruling core, saddled with an unpopular candidate, is desperate to reduce political competition ahead of the general election. Hichilema,especially, may be targeted on two fronts.

First, Zambia’s revised 2016 Constitution now requires political parties to promote and practice democracy through holding regular, free and fair internal elections. The UPND last held an elective national convention in 2006 and Hichilema has not stood in an internal election since then, a development that the PF may seek to exploit by arguing that any party that has not held regular polls should be disqualified from taking part in the national elections. UPND structures are weak and Hichilema possibly fears that the opportunity presented by an internal election may be used by the PF to replace him with another candidate or simply divide or weaken the party. In any case, the PF is already preparing to take to Parliament a Political Parties Bill that would give effect to the aforementioned Constitutional provision. Sources within the governing party speak of plans to include a provision that would bar undemocratic parties and a candidatewho has hitherto made more than two unsuccessful attempts at the national presidency from standing. Lungu recently wondered why Hichilema, who he declared must leave politics because he has lost on all his previous five attempts to become Zambia’s president, should be allowed to stand in 2021. ‘He has failed five times’, Lungu protested, ‘but the UPND are insisting that they want this same candidate. Zambia is not supposed to be condoning dictators.’

Second, the persistent police harassment of Hichilema may result in a prison sentence, one that might adversely affect his participation in the 2021 elections. The revised Zambian law disqualifies a person who has, in the immediate preceding five years, served a term of imprisonment of at least three years, or who is serving a sentence of imprisonment from being eligible to stand in a presidential election. Since less than three years remain before Zambia’s next poll, constitutionally set for 12 August 2021, the PF might simply seek to have Hichilema convicted on any charge that would keep him in prison at the time of the nominations for the 2021 election. Already, police have formulated a potential charge against Hichilema, from whom a warn and caution statement was recently recorded in relation to the rumoured sale of state-owned timber company Zambia Forestry and Forest Industries Corporation to the Chinese, which sparked violent public protests on the politically important Copperbelt Province. The PF allege that it is the opposition strongman who incited the rioters, a charge denied by the accused. Hichilema is also being investigated in relation to his role as a private evaluator in Zambia’s privatisation process in the 1990s. Possible evidence that the police may be acting on instruction emerged soon after Hichilema’s meeting with Lungu when the President, in an apparent reference to the UPND leader, denounced the ‘shamelessness’ of political leaders ‘who are shareholders in the companies they were entrusted to privatise’ [in the 1990s].‘It is sad that the people that were entrusted with the privatisation process at the time’, Lungu said of Hichilema,‘shamelessly sold off the state-owned enterprises and even now boast of riches which they literally looted through the privatisation process to the disadvantage of the poor ordinary majority’.

The other opposition leader who may be targeted is Kambwili, an effective grassroots mobiliser and a populist who assertsthat Lungu is beholden to the interests of the Chinese and has departed from Sata’s pro-poor policies. The former Lungu trumpeter retains a distinctive support base on the urban Copperbelt and, left to operate freely, is capable of hurting the ruling party as his nascent NDC might take away significant chunks of PF support. However, indications that the government is planning to move for him surfaced a few days ago when Kambwili, who appears to have some useful contacts in the security services, confronted Minister of Home Affairs Stephen Kampyongo over the issue. In a leaked recorded phone conversation of the duo, Kambwili is heard challenging Kampyongo – who vows to teach him an unspecified ‘lesson’ he would never forget – about the police’s plans to arrest him on a charge possibly emanating from his frequent criticism of Lungu’s alleged loyalty to corruption, the exploitation of Zambian workers by Chinese firms, or the growing Chinese influence on the Zambian economy and state. As if to confirm public perception that they operate under political directives, the police then moved to arrest Kambwili for unlawful assembly on 29 November. The charge arose from his earlier address to Zambian employeesin a Chinese firm protesting against their poor working conditions. Police had earlier arrested the complaining workers, sparking criticism that the government, which has said nothing about their grievances, was betraying its citizens in defence of foreign commercial interests. Kambwili is already appearing in court facing 39 counts on separate charges and critics claim that the ruling authorities are eager to secure a conviction against him that would keep him out of the running in 2021. Whether or not Lungu and the PF are so desperate that they are prepared to go to such lengths to secure another five years in power, only time will tell.

With key institutions on his side, and the capacity of international actors to constrain his behaviour severely diminished by donors’ shift from aid to trade (a move that has weakened good governance programs, with all their shortfalls), Zambians should brace for Lungu’s extended stay in power beyond 2021. He has already demonstrated his capacity to both win a competitive election by possible crook and get the key institutions such as the judiciary to endorse his actions, even if it is by way of dismissing legal suits brought against him on technical procedures. Since his re-election in 2016, he has gone about silencing part of the critical free press, opposition parties and rivals within the PF, and capturing key state institutions. Will this all end in a fully-fledged dictatorship? I think not, for while Lungu and the PF are undoubtedly becoming increasingly authoritarian, they lack the political capital and strategic tools necessary to justify, manage and sustain such a regime. To begin with, Lungu lacks the broad popularity and legitimacy needed to establish a complete dictatorship. According to the contested 2016 results, he beat Hichilema by less than 3%. In office, he has failed to put in place popular policies that would win him greater support. Moreover, with the country severely in debt and, with an anticipated International Monetary Fund bailout on the way, public spending is likely to be slashed further, hurting the poor. To establish a full-grown dictatorship, one needs to manufacture tacit consent. In the Zambian context, this would require a significant redistributive agenda, but the regime lacks the resources for this. Lungu does not seem inclined to pursue the extractive industry for more revenue as the likes of Tanzania are attempting to do. He also lacks the kind of charisma, oratory power, or ‘saviour’ credentials that his autocratic role models – such as Uganda’s Yoweri Museveni or Rwanda’s Paul Kagame – can fall back on.

Lungu’s actions will certainly undermine Zambia’s cherished democracy, its political institutions and culture. Furthermore, like the other leaders emerging in his mould around the world – such as Donald Trump in the US or Jair Bolsanaro in Brazil– he is likely to leave havoc in his wake. In the US and elsewhere, broad sections of civil society have mobilised against actions they see as illegitimate or illegal. But in Zambia, the capacity of non-state actors to rally significant sections of the population behind national concerns remains weak. The Law Association of Zambia, hitherto a rare bright spot amid Zambia’s increasingly inactive and ineffective non-state actors and arguably the leader of the country’s civil society movement, appears to have finally been captured by the PF. Under the leadership of Linda Kasonde, whose term of office ended earlier this year, LAZ exerted every effort to fulfill its legal mandate of defending the rule of law, protecting Zambia’s Constitution, and proactively using the law as a shield for the weak and the ordinary citizen and not as a sword for the elite and those in power. Following recent LAZ elections that saw one or two PF supporters assume senior leadership roles on the body, the association is now so ineffective that one can easily mistake it for a legal wing of the ruling establishment, as many Zambians today see its role as that of issuing statements, carefully-couched in legal terminology, in support of the government. To illustrate: the ink that the Supreme Court used to write the earlier cited controversial contempt decision had barely dried when LAZ heaped praise on the judgement, declaring that ‘the [six-year] sentence sends a message that Zambians must not engage in unwarranted attacks that tarnish the image of the judiciary.’

In addition, the judiciary, so important in constraining Trump’s authoritarian tendencies in the US and a body that in Zambia previously stood as citizens’ last line of defence in protecting their rights, has, under the PF’s watch, effectively been captured by the executive and is not in a position to stem the tragic slide – not so much towards complete dictatorship but chaos. Zambia was once so highly regarded as a model of democracy that many people have yet to come to terms withthe country’s gradually changing political character. By the time they do, it might be too little, too late.