By Sishuwa Sishuwa

Minister of Home Affairs Stephen Kampyongo

Stephen Kampyongo is a kind of person Adolf Hitler would have loved to have been in charge of his police – someone who will wilfully torture themselves to advance what they believe are the interests of the Fuehrer because they cannot countenance any life with real economic opportunities outside power; someone who wants to be overly involved in the day-to-day running of the police, who refuses to read and understand the Constitution including understanding the role of the police because their only allegiance is to the appointing authority, and a person who cannot be relied upon to promote professionalism and improve relations between the police and members of society.

In 2020, Kampyongo demonstrated his pro-Lungu lapdog mentality with two most disappointing actions. The first occurred on 22 December when supporters of the main opposition United Party for National Development (UPND) undertook to accompany party leader, Hakainde Hichilema, to the police headquarters in Lusaka where he had been summoned for questioning the following day. In response, Kampyongo publicly instructed the police to use ‘any means necessary to maintain law and order’ when dealing with the opposition members. On the material day, police shot dead two unarmed people – Nsama Nsama, a state prosecutor who was buying a meal at a restaurant across his office, and Joseph Kaunda, a UPND supporter – while dispersing a peaceful crowd that had gathered in solidarity with Hichilema.

Kampyongo’s instructions were instructive for two reasons. First, they served as the psychological priming that may have led to the killings. The use of live ammunition on people who were peacefully standing still and carrying no weapons suggests that the security forces set out to kill. The Minister of Home Affairs is arguably liable for the death of Nsama and Kaunda because he issued the instructions which the police executed. Second, they demonstrate Kampyongo’s fatal ignorance of two of the police’s constitutional functions: protection of life and upholding the Bill of Rights. His command to the police to suppress the right of Hichilema’s supporters to assemble peacefully means, in effect, that he was encouraging the security forces to act unconstitutionally by deploying lethal force on people who wanted to enjoy their rights of movement and assembly.

The second most disappointing action of Kampyongo last year was his failure to create a level playing field for all political parties. While public meetings by opposition parties and civil society were stopped by the police abusing the Public Order Act and the restrictions governing the Coronavirus pandemic, those by the ruling party continued unhindered throughout the year. Kampyongo remained very sensitive to political activities organised by any group or person other than those that were pro-Lungu and pro-PF. His understanding of political power appears to be of bullying, ordering and cajoling people. To him, power must be worn on one’s muscles and imposed on others. If the government had planned the December killings as a way of sending a message to anyone who would protest against the results of a disputed election, then they must be disappointed that only two people were murdered by their police. Clearly, the warning was not large enough.

Zambians must note that Lungu’s mentor, Uganda President Yoweri Museveni, had no less than 50 Ugandans killed by his police and army in the run-up to the extremely fraudulent, unfree, unfair and illegitimate election he claims to have won. Lungu was among the earliest to congratulate Museveni. Many credible leaders – including South Africa’s Cyril Ramaphosa who is also the Chairperson of the African Union – were appalled by the deadly clampdowns on opposition campaigns during the election that secured Museveni’s 6^th term in office and have yet to congratulate Museveni – not that he would care as long as he remains president.

As we approach the elections, Zambians must be very afraid of the likes of Kampyongo. He is actively brewing a storm for the country come August this year. All the things police are doing are with his blessings. For a president who is averse to formal rules like Lungu, Kampyongo is the perfect enforcer. In fact, the kind of behaviour that Kampyongo exhibited for much of last year is one that risks fast-tracking us towards very violent elections. It is not too late for us to force Kampyongo to change course and do the right thing: create a level playing field for all parties. It is well within reach and in our hands to prevent chaos, violence and bloodshed this year. We have had enough warning. Will we act to prevent our descent into a darkness we may never recover from? We must. Time is running out, fast.

The Constitutional Court

In 2020, the Constitutional Court managed to reinforce its position as the slaughterhouse of Zambia’s democracy and justice system through both its judgments and failure to render decisions in a timely manner. Of particular interest were three problems.

The first problem occurred on 18 February 2020 when the ConCourt delivered its judgment in the case in which Chishimba Kambwili had challenged the decision of the Speaker of the National Assembly to declare his Roan constituency parliamentary seat vacant on the ground that he was acting as a consultant for an opposition political party on whose ticket he was not elected to parliament. Kambwili had, among other remedies, asked the Constitutional Court for “a declaration and order that the ruling of the Speaker dated 27 February 2019 is null and void ab initio.” The Court found that the decision of the Speaker was unconstitutional because he purported to interpret and resolve a constitutional problem, which is a power constitutionally reserved for the court. Despite making this finding, the court dismissed the petition and declined to give Kambwili the remedy he asked for: a declaration that the action was invalid and therefore void. Instead, the Court went on to formulate its own remedy, namely a declaratory judgment which it discussed at length, when no one had asked for such a relief, and went on to dismiss it. The court did not explain why it had deviated from the reliefs sought by Kambwili and created its own relief. This decision has two important consequences.

Firstly, the Concourt seems to be building up on its previous bizarre decision in the Edgar Lungu’s eligibility case where it decided to formulate its own question of law and substituted it with the applicant’s questions in the judgment. That ambiguous judgment still remains controversial and would potentially be litigated again. These decisions make people lose their confidence in the competence of the court to deliver just decisions in a manner that is predictable and follows established rules of practice.

Second, and related to the issue of predictability of outcomes, the decision undermines the supremacy of the Constitution. By refusing to grant the declaration that the Speaker’s action was invalid, the Court sanctioned the violation of the Constitution and commission of an illegal act contrary to the express provisions of the Constitution in Article 1(2) which states that “an act or omission which contravenes this Constitution is illegal.” In effect, the Constitutional Court sanctioned the illegality and gave an incentive to the Speaker of the National Assembly, or any other would-be public official, to breach the Constitution with impunity. It does not help that the Court referred to the fact that another MP had been elected to replace Kambwili as potentially creating a constitutional crisis. This position communicates the idea that unlawful violation of the constitution is fine – one must simply act fast enough and secure their unlawful position in a manner that would cause political disruption before the court renders its judgment. The court would then tailor its decision to accommodate the illegality.

It is the public’s perfectly logical and legitimate expectations from the Constitutional Court that when it declares decisions and actions unconstitutional and therefore illegal, such decisions and actions must be reversed. Not reversing them is what risks creating a constitutional and political crisis! Given its record of extremely poor decisions, the ConCourt’s status as court of first and final instance should be reviewed: it must be reduced to a division of the High Court so that its judgments are appealable.

The second problem relates to the Court’s failure to hear the matter in which Chapter One Foundation had challenged the selective issuance of mobile National Registration Cards as being unconstitutional as well as the decision of the Electoral Commission of Zambia to conduct the registration of voters in 30 days only as being contrary to the constitutional mandate of the Electoral Commission of Zambia. The case was filed on 3 August 2020 and has not been heard to date, notwithstanding the urgency of the subject matter to which it relates. All that the ECZ had to do was to proceed to implement its possibly unlawful actions and put the Court in a position where it may, based on bad precedent, give a judgment that would not cause disruption or “lead to a constitutional crisis” as it did in the Kambwili case.

The third problem is the ConCourt’s failure to deliver a judgment in the Lundazi Central parliamentary election petition in which a losing candidate in the 2016 general election has petitioned the court seeking a declaration that the seat held by independent member of parliament Lawrence Nyirenda be declared vacant because the later does not have a grade 12 certificate. Bizwayo Nkunika, who also stood as an independent but lost, wants the court to direct the Electoral Commission of Zambia to hold elections within 90 days because Nyirenda contravened the provisions of Articles 70 (1) (d) and 72 ( 2) (b) of the Constitution. With about three months before Parliament is dissolved, the court is yet to deliver judgement. If the ConCourt, after so much undue delay, ultimately finds that the current MP was not duly elected to Parliament, it would be complicit in having perpetuated a form of electoral injustice where the wronged voters of Lundazi constituency were all along denied their legitimate representative and instead had a dishonourable crook foisted upon them.

Thus, in failing to expedite the appeal case, the Constitutional Court is damaging its reputation as an institution that is able to dispense justice in a timely manner. This erosion of its reputation has grave consequences for the rule of law in Zambia. For instance, the court’s failure to intervene promptly in election appeal cases means that there is effectively no incentive for political parties and individuals to abide by the rules of the game in future elections. Candidates who win illegitimately can be confident that years will go by with them sitting in Parliament and enjoying all the privileges that come with being an MP while their appeal cases remain undetermined in the ConCourt.

The Electoral Commission of Zambia

In September 2020, the Electoral Commission of Zambia (ECZ) made one major decision which led to a series of challenges in court and may turn out to be the source of violent conflict after this year’s election – abolishing a valid and lawful voters’ register and creating a new one within a period of about one month. Given both the commission’s admission that it lacked sufficient funds to undertake the exercise and the limited time that had remained before the next election, the decision appeared to have been made for the benefit of President Edgar Lungu and his governing party who, well-placed sources say, were fearful of losing power if the permanent register was maintained. The new voters’ register was therefore established without building critical consensus with all the key stakeholders. This has bred suspicion especially in the wake of the ECZ’s recent declaration that the new voters’ roll will not be subjected to an independent audit. This is a recipe for violent election conflict.

If there would be any turmoil during and after the elections, the ECZ should be held responsible. Registers are the elections. It is from them that all the numbers are produced or cooked. Everything about the coming elections hinges on the new register, what it contains and how it can be manipulated to produce a certain outcome. Registers contain the full field of data from which election results are decided. If one controls the register, they can manipulate and control the outcome. The opposition must demand full disclosure of the details of the register and verification of the data on it. They must also insist that the ECZ, transparently, appoints an independent auditor to audit the new register. The quality and authenticity of the register depends on it being certified so by an independent auditor.

No political party, even a ruling party (the United States’ Republicans in last year’s elections are a good example here) worth its salt can trust an un-audited new voter register. Without such an independent and credible audit, the new voters’ register will – combined with the pandemic, partisan police, violence, poverty, genuine opposition parties’ absolute mistrust of Lungu and his PF and the sins of incumbency – give Lungu an unfair advantage and deliver him his wish to be president until 2026. In fact, if the opposition allows all these factors to mature, they will suffer terrible losses even in parliament. Lungu should want a large majority in the next Parliament – his futile constitutional gymnastics of 2020 have taught him a horrible and humiliating lesson. Confident now of retaining the presidency in August, Lungu is obviously already thinking about trying to change the constitution to either extend the number of terms permissible or abolish term limits altogether. For this to be possible, however, he would first have to win a clear majority in parliament and then push through a constitutional amendment – hence the significance of the validity and authenticity of the voters’ register.

It is not by accident that electoral commissions are required to be independent. Primarily it is because they are supposed to be independent administrators and adjudicators of political contests – elections – independent of all contestants, and in our case, especially from the incumbents. In any case, if a good voters’ register has been compiled, why is the Commission not in a hurry to proclaim this fact through an independent audit? After all, they claim to have captured more than 80 percent of their targeted voters! The audit and verification need to start earlier than April to allow sufficient time for all identified shortcomings to be addressed.

Will the ECZ protect and save us from the election violence the country is headed for this year by running credible, free, fair and peaceful elections? Historians will be waiting to record the answer.

The Anti-Corruption Commission

In 2020, publicly, the Anti-Corruption Commission (ACC) shred any pretence at independence from the executive arm of government. The most disappointing action of the ACC was its conduct during the trial of then Minister of Health Chitalu Chilufya – who was subsequently fired solely for internal PF political, succession-driven reasons – on various corruption charges following an ACC investigation. But after many hearings, the case finally collapsed in August 2020 when an ACC official suddenly appeared in court armed with ‘evidence’ which exonerated the minister. The manner in which the anti-corruption body handled the case of Chilufya raises several questions.

Why did the institution take Chilufya to court if it had evidence that he was innocent? Was the goal to clean him from corruption? It is worth noting that Article 18 of the Constitution of Zambia prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the constitution states “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.” What this means is that despite the dubious nature of his acquittal, Chilufya cannot be prosecuted in future for the same offences no matter how compelling the evidence may be. Was this the reason the ACC allowed itself to be paraded in court as useful idiots in that fashion? To vaccinate Chilufya from future prosecution through the doctrine of double jeopardy?

Ordinarily, before any prosecution is embarked upon, especially of a high-profile figure like a cabinet minister, investigators would gather sufficient evidence on a given suspect’s corrupt dealings. Investigators would then pass the evidence to prosecutors within the ACC who analyse it to establish if it is enough to build a watertight case that can secure a conviction. Once this is done, the prosecutors would then send the file to the Director of Public Prosecutions who also undertakes a similar assessment before charging the suspect and taking the matter to court. If these stages were followed in the Chilufya case, how can the ACC rationally explain the embarrassing situation where the person who ‘thoroughly’ conducted investigations on Chilufya is the one who went on to exonerate him from wrongdoing in court?

The handling of the Chilufya case also provides useful insights into the kind of leadership at the helm of the ACC today. Any self-respecting leader would have resigned from the ACC in the aftermath of the Chilufya fiasco to save their integrity, if they have any. Those in charge of fighting corruption should be men and women who have a superior level of morality, are passionate about combating the scourge of corruption, and possess the requisite qualities of integrity, character and loyalty to principle. It is impossible to look at the ACC today without being struck by the calamity of the absence of this kind of leadership – one that strikes fear in the corrupt. If anything, this is the best time for any corrupt public official to wish to be taken to court by the ACC because the rottenness of the justice system makes the prospects of a conviction remote.

The failure of the ACC board to provide critical oversight over the institution – including holding it to account for the public funds it spends, the professionals it recruits and the reputation it must build and protect – shows why we should develop a much more open and transparent process of appointing commissioners of the ACC. Such a process must provide room for public vetting of those appointed and make the anti-corruption institutions more autonomous and accountable by ensuring that they report to parliament, not the executive, and that their leaders enjoy security of tenure similar to that of judges. How do you have a situation where the Anti-Corruption Commission and the Financial Intelligence Centre report corrupt cases to the executive when the latter is quite often the culprit?

Another disappointing action from the ACC occurred more recently when Parliament’s Public Accounts Committee (PAC) uncovered the fraudulent and scandalous ‘Honeybee’ contract which resulted in so-called ‘health-kits’ containing deadly materials being distributed all over the country. Strangely, during the time of the PAC hearings, the ACC suddenly popped up and claimed that they have been investigating the Honeybee scandal since August 2020! And yet the PAC revelations were based on several key documents which were all publicly available last August! Where has the ACC been all along? Is this how committed the Anti-Corruption Commission is to fighting corruption in high places, to combating serious and deadly corruption in Zambia?

The Anti-Corruption Commission has lost its soul. It has become a very dangerous organisation whose main purpose now appears to be to launder corrupt elites. What is tragically ironic is that the decline of this vital watchdog institution is happening at a time when we have been inundated with so many corruption scandals in government that it is nearly impossible to keep pace. Under Lungu’s administration, corruption appears to be a sport, one in which many of those in the higher echelons of power are runaway leaders in the league of plunderers of public resources. The problem in this instance is that if the ACC launders reputations, then corrupt political elites would happily launder money in the knowledge that they can later turn to the Commission to launder their reputation. Afterwards, they would sue anyone accusing them of corruption for libel. This way, corruption would continue to thrive, fuelling inequality, poverty, injustice and bad governance, and strangling Zambia’s development aspirations.

This article marks the end of the “Class of 2020” series.