Why Shonga’s election marks a new phase in LAZ’s fall from grace

By Sishuwa Sishuwa

In July, members of the Law Association of Zambia (LAZ) elected at their Annual General Meeting a 15-member executive to replace the Eddie Mwitwa-led Council that had been in power since April 2018. The new office bearers include Abyudi James Shonga, who was voted President, Lungisani Zulu (Vice-President), Sokwani Chilembo (Secretary), and Ngosa Simachela (Treasurer). The ordinary Council members include Anne Gray-Kunda, Hastings Pasi, Zacchaeus Musonda, Matilda Kaoma, and Iven Mulenga. The rest are Chintu Mulendema, Mulopa Ndalameta, Benson Mpalo, Steven Simwanza, Andrew Kombe, and Billingtone Mosha.

Some of those elected, such as Zulu, Chilembo, Simachela and Kaoma, served in the previous executive, so one should ordinarily expect continuity in the strategies of the association. Unfortunately, and as glimpses from the last three months show, this is unlikely to be the case because the new executive is led by Shonga, whose election, even in LAZ’s continuing fall from grace, represents a watershed moment. He brings, in my view, two unique disadvantages that have the potential to weaken the effectiveness of this well-respected law body.

The first major weakness stems, ironically, from his considerable credentials. Shonga is the only person in the new LAZ executive to have previously attained the status of State Counsel and served as Solicitor-General (August 2009 to March 2010) and Attorney-General (March 2010 to October 2011). In fact, since the establishment of LAZ in 1973, he is the first person with this combined background to have sought a leadership position on the association’s Council. Having served at the highest level of the Zambian bar, it is very unlikely that his junior colleagues on the new Council would have the appetite or willingness to oppose him or question his judgement on a number of key issues where his position may benefit from critical feedback.

Shonga campaigned on the platform of ‘experience’ rather than teamwork and compromise. We can see why he might consider his election as an endorsement of his campaign message. The possible awkwardness of his juniors on how best to relate to the victorious ‘State Counsel’ must be understood in this context. In Zambia, the legal profession generally thrives on a reverence for seniority, one that continues to diminish its capacity to draw upon the novelty, energy and pragmatism of junior lawyers. While younger lawyers have usually shown much enthusiasm for learning from their older colleagues, the latter have shown less willingness to embrace the views of their juniors – who have generally been treated rather dismissively and as empty heads into which data should be crammed.

Given his credentials, Shonga is more likely to exert significant influence on the running of the association than someone who was dealing with their peers. This would not be such a frightening prospect if the new LAZ president had a proven track record of promoting the rule of law and defending the rights and liberties of the individual. Had that been the case, his background would be a perfect match to the association’s legal mandate and provide inspiration to his colleagues on the new Council. The problem is that Shonga’s record points in the opposite direction.

For instance, the rule of law and human rights were repeatedly trampled upon during the presidency of Rupiah Banda when Shonga served as the government’s chief legal advisor. The abuse of office clause was also removed from the Anti-Corruption Commission Act when he was Attorney General. Shonga also presided over the questionable takeover of Finance Bank by the Bank of Zambia and attempted to prevent Muvi television and The Post newspaper from publishing the results of the 2011 general election. Most infamously, he was Solicitor General when Chansa Kabwela, then editor of The Post, was prosecuted for sending to senior government officials copies of photographs of a woman giving birth on the street during a doctors’ strike.

The controversial images, which were never published by the newspaper, had been taken by the woman’s husband and showed her on the ground, legs spread, delivering the foetus in a breech position after she was turned away from hospital. While the mother survived the ordeal, the baby suffocated. Rather than arresting the failings in Zambia’s healthcare system that sent doctors on strike, the government that Shonga was advising arrested Kabwela for ‘distributing obscene material’. When Muna Ndulo wrote an article underlining the political nature of the case and suggesting that the reporter’s prosecution was unnecessary and would dent Zambia’s image abroad, he and Post editor-in-chief Fred M’membe were charged with contempt of court – the latter was even handed a four-month jail sentence by Magistrate David Simusamba.

This is part of the much-touted experience that Shonga brings to the LAZ presidency, almost a decade after the 2011 transfer of power prematurely ended his short-lived tenure as Zambia’s Attorney General. In more recent previous LAZ councils, what greatly helped in raising the public profile and credibility of the association, even when some officers had close leanings to those in power, was having a president with a clear bias towards publicly defending the rule of law, protecting the Constitution, and proactively using the law as an effective instrument for the achievement of social justice. This is hardly likely to be the case henceforth. Granted, the new Council retains individuals with strong ties to those in power. For instance, Kombe is Ronald Chitotela’s lawyer; Simwanza is the Partner at Lungu Simwanza and Company (the other Partner is Milingo Lungu, who served as Treasurer in the previous LAZ executive and the PF deputy chairperson for legal affairs); and Mosha is a close associate of Bokani Soko, a known ally of State House.

There also still exist a few independent-minded individuals who, having served on the previous Council and acquired valuable experience, could greatly assist Shonga to revisit some of his conclusions, acquaint himself with the limits of his knowledge, and broaden his perspectives on many issues. These include Zulu, Chilembo and Simachela. It is doubtful, however, if Shonga would be receptive to strong but constructive feedback or be willing to abandon his point of view, if its weakness could be shown. On the few occasions I have listened to him, what struck me most about him was his sensitivity to criticism and his obstinate conventionality.

What represents a clear departure from the past is that LAZ is today led by a president who has shown little interest in checking executive excesses or blatant disregard of the rule of law. His credentials, while they mean much to him, may silence internal criticism of his leadership and undermine the public standing of LAZ, which until recently was a rare bright spot amid Zambia’s increasingly co-opted and ineffective civil society. Two of Shonga’s immediate predecessors, Eddie Mwitwa and Linda Kasonde, resolutely upheld LAZ’s publicly oriented legal mandate of advancing the rule of law and individual freedoms. This naturally brought them into conflict with the government and President Edgar Lungu, who has demonstrated little regard for the Constitution and the rule of law, especially when they get in the way of his political interests or personal ambitions. Given his history, Shonga is unlikely to encounter any attacks from the PF. If anything, they are more likely to claim him as one of their own.

The second major weakness that Shonga brings to LAZ, in my opinion, is a leadership style that frowns upon transparency and public exposure as means of holding the executive to account. Since his ascension to office, Shonga has essentially promoted ‘quiet diplomacy’ as his trademark approach, preferring to conduct formal private meetings with government officials as opposed to publicly exposing their misbehaviour. Understandably, this approach has not gone down well with many Zambians, including lawyers.

In a recent opinion piece, published in The Mast newspaper and titled ‘The slow and painful death of LAZ: neutrality is choosing the side of the oppressor’, three University of Zambia law lecturers condemned the adoption of quiet diplomacy as a strategy of promoting the rule of law. It is, they argued, an ineffective way of exposing and preventing any attempts by the executive to capture state power from the other arms of government. This condemnation is necessary, but not sufficient. Zambians also need to understand why Shonga may have adopted quiet diplomacy as his leadership style. The argument that this mode of operation is more effective than the public exposure of government transgressions is most unconvincing and, if anything, represents a hollow attempt to disguise the possible real motivations behind it. When employed in a context where the violations to basic human rights are occurring in the public domain, quiet diplomacy amounts to endorsing wrong. Broadly speaking, there are three possible reasons why Shonga may have chosen this strategy.

One is that quiet diplomacy, in my opinion, offers Shonga the convenient pretext he needs to explain why LAZ is no longer initiating court cases against the executive arm of government for breaches to the Constitution, failure to advance the rule of law and protect human rights. In other African democracies, such as Kenya and Malawi, law societies have been in the forefront of taking legal action against the government whenever these transgressions occur. In Zambia, this culture was just emerging.

In 2016, LAZ, under the leadership of Kasonde, successfully sued the government when President Lungu violated the Constitution by keeping ministers in office following the dissolution of parliament ahead of that year’s general election. Earlier, in 2014, LAZ, under the leadership of James Banda and seeking to protect the right to peaceful assembly, asked the High Court and later the Supreme Court to declare provisions of Section 5 of the Public Order Act as unconstitutional on the grounds that they violated Articles 20 and 21 of the Constitution. The challenge was prompted by the repeated refusals by the police to allow public meetings, processions or demonstrations.

More recently, under Eddie Mwitwa’s presidency, LAZ challenged the constitutionality of the proposed Constitution of Zambia (Amendment) Bill Number 10 of 2019. The latter two cases were unsuccessful, but they provide clear examples of how LAZ has used its statutory mandate to protect the Constitution and other laws. This is the proud tradition that Shonga is abandoning in preference to quiet diplomacy, whose underlying assumption is that the executive engages in wronging not out of choice and political interest but ignorance of the law, whose remedy is knowledge from LAZ, delivered in private meetings or letters. This is a strange form of advocacy that is inconsistent with the best international practices.

The Nigerian Bar Association, the SADC Bar Association, the African Bar Association, the Zimbabwe Lawyers for Human Rights, the Law Society of Kenya and the Malawi Law Society all engage in active advocacy initiatives and legal activism. None of them use quiet diplomacy. Having tea parties with wrongdoers is one thing, but it lacks either an effective mechanism to enforce any agreements reached through these private talks or a fixed timeframe within which their resolutions are to be implemented. In adopting quiet diplomacy as his leadership strategy, Shonga is, in effect, committing LAZ to betraying the legal profession and public interest and actively collaborating with those who contravene the rule of law.

The other possible reason why Shonga retains an aversion to open exposure of government misbehaviour is that quiet diplomacy, I suspect, offers him the chance to undermine LAZ’s historic relationship with the Oasis Forum, Zambia’s widely respected alliance of civic associations. The Forum comprises LAZ itself, the Non-Governmental Gender Organisations’ Coordinating Council, and the three Christian church mother bodies – the Evangelical Fellowship of Zambia, the Christian Council of Zambia and the Zambia Conference of Catholic Bishops. Its primary role is to defend democracy, hold the government to account, protect the Constitution, promote public accountability, and advance good governance and the rule of law. It is precisely this kind of transparent advocacy that is at variance with Shonga’s demonstrated leadership style. It is no wonder that while he has moved quickly to conduct tea party meetings with President Lungu, the Chief Justice and the leadership of the Electoral Commission of Zambia, Shonga is yet to meet the affiliates of the Oasis Forum or other organisations that advocate good governance and the preservation of democracy.

When a number of civil society organisations recently released a joint public statement calling on opposition and independent members of parliament to reject the proposed Constitution of Zambia (Amendment) Bill Number 10 of 2019 when it is presented to Parliament for voting on 29 October, LAZ was not among its signatories. The same law body that had publicly opposed the Bill under Eddie Mwitwa’s leadership has, under Shonga, developed a lukewarm attitude to it. If there is anything that we should learn from this episode, it is that we should expect little in the way of holding the government to account from the Shonga-led LAZ executive. It is telling that criticism of LAZ from PF-aligned lawyers such as Makebi Zulu, Brian Mundubile and Tutwa Ngulube has fallen deathly silent since the election of Shonga. Essentially, the PF have got what it wanted: a favourable LAZ president.

Since he effectively believes in the privatisation of advocacy, Shonga is unlikely to commit LAZ to the Oasis Forum and other civic institutions that believe that democracy means an open society with no secret talks and secret dealings in the background, and that an effective strategy for public accountability and the protection of human rights requires transparency complemented by public litigation. Naming and shaming of wrongdoers, for instance, provide the incentive for the government to behave and gives relief to the individuals whose rights have been violated.

By not calling out the government when it is in the wrong, Shonga may find it difficult to dispel growing public perception that his quiet diplomacy is nothing but disguised support for the authorities. Whether this is a public image that the entire LAZ executive wants to craft for itself, only they can say. What is apparent for now is that without LAZ’s active participation in the Oasis Forum, civil society is weakened. Zambians are also poorer for it because LAZ’s commentaries on different issues are not only meant for educating the government but the wider public too.

The final possible reason behind Shonga’s quiet diplomacy is that it represents, in my opinion, a veiled attempt to discourage lawyers from calling out the excesses of the executive and the judiciary through media commentaries. The implication of his leadership style is that lawyers under the association should adopt an approach that is similar to his and relay whatever concerns they may have against the government through him for onward transmission to his tea party partners. Like the PF, Shonga has been quite uncomfortable with the public activism of lawyers like John Sangwa and Musa Mwenye, who have regularly used the media to hold the judiciary and executive to account.

A few days after his election, he led his new Council to a tea party meeting at State House where President Lungu condemned the two State Counsel for their propensity to criticise the government in the media. Instead of telling Lungu that they are neither clients nor employees of the State, that they have no ethical obligations separate from those that bind other lawyers, and that Rule 16 of the Legal Practitioners (Publicity) Rules of 2017 allows all lawyers to give media interviews, Shonga subsequently called a meeting of State Counsel to discuss their role in national affairs, including the question of whether or not they should speak publicly against the government. Fortunately, his peers prevailed upon him and made him recognise that lawyers have the constitutional right to free speech.

The incident at State House was not the only occasion where Shonga failed to criticise erring state officials even in private. When he and his team met the Chief Justice for another tea party event, Shonga failed to admonish the head of the judiciary for attacking the lawyers of Chishimba Kambwili, who were not present to defend themselves, and for commenting on a matter that remained active before the courts. Neither did he raise any concerns about having a magistrate who is accused of corruption presiding over the case of the accuser or the failure of the Chief Justice to see this as a conflict of interest that undermines judicial integrity. What this suggests is that Shonga is not only incapable of speaking truth to power publicly, but even through private conversations too.

Instead of discouraging lawyers from saying what they think, Shonga should abandon his quiet diplomacy and restore the public’s confidence in LAZ by positioning the association on the side of those publicly defending the rule of law, not those straying from it. If the professional association fulfils this mandate, draws attention to transgressions, and advises the government where they have gone wrong, the individual lawyer would have no need to speak out as the point would have been made by their association. But if the leadership of the professional association abdicates this responsibility, then lawyers have no choice but to hold Shonga’s feet to the fire and speak for themselves.

In the run-up to the LAZ elective conference, Shonga stated that he was ‘running for President because I remember a day when the voice of LAZ was heard and respected across this country; because of the neutrality and the objectivity we stood for.’ How ironic that he is now, in effect, silencing the public voice of LAZ on issues that matter most, such as the increased police brutality against unarmed citizens, and shredding the residue of respect that the association had enjoyed prior to his election. In my opinion, Shonga is reducing LAZ to a private union whose primary role is to – as per his campaign message – ‘engage employers of law firms, and other employers to protect the remuneration of lawyers’, advocate for professional advancement of its membership, regulate their conduct, and maintain the noble status of lawyers in society. The mandate of LAZ goes beyond this private role. It extends to protecting the Constitution, a function that cannot be carried out effectively in a closing political space and without calling out the unjust acts of an increasingly authoritarian regime.

Rather than whispering to wrongdoers, Shonga should instead join the public discussion about the repressive state that Lungu is attempting to create in Zambia. His strategy of quiet diplomacy risks undermining LAZ, an organisation that has previously stood out as an independent watchdog dedicated to protecting human rights and which sustains its credibility by speaking out fearlessly in defence of the rule of law. It is too easy to mess up LAZ’s good public reputation built over several decades of hard work. What is not easy, in my opinion, is to stand up to wannabe autocrats like Lungu and his associates who have created a general climate of fear in Zambia and are therefore effectively in charge of everybody except for those seeking martyrdom.

With critical media closed, civil society and opposition parties curtailed from holding public meetings, and a judiciary that is generally seen as subservient to the executive, the government is tightening its stranglehold on the country’s basic institutions of democracy at a terrifying speed. Shonga should raise LAZ’s voice on these transgressions by taking a principled stand on issues of public interest that would endear him to the virtues of truth and justice. He should not, in my opinion, seek to fix things that are not broken. LAZ has worked well this far and the only complaints about its working methods are unsurprisingly coming from those whose actions it criticises. If Shonga cannot reconsider his clearly ineffective leadership style, he would do well to step down. However, if he harbours a personal ambition to be appointed to the Bench by Lungu and retire with the coveted lifetime salary that comes with being a judge of the High Court, Court of Appeal, Constitutional Court, or Supreme Court, then it should be no surprise to see him remain silent as the rule of law, human rights and democracy are attacked.

• Sishuwa Sishuwa is a political historian whose research focuses mainly on biography, identity politics, civil society, political parties, and elections. He is currently a lecturer at the University of Zambia and a research fellow at the Institute for Democracy, University of Cape Town. Sishuwa is the author of Populism in Zambia: A Political Biography of Michael Sata (forthcoming).