THIS IS HOW HICHILEMA IS UNDERMINING DEMOCRACY IN ZAMBIA

By Sishuwa Sishuwa

(As published in the Mail & Guardian newspaper of South Africa on 28 Mar 2022)

When Hakainde Hichilema defeated incumbent president Edgar Lungu in Zambia’s August 2021 elections, many people hoped that the assault on democracy and human rights that had characterised his predecessor’s time in office would end. This prospect was reinforced by Hichilema’s presentation of himself as a reform-minded politician determined to restore the rule of law, launch an anti-corruption campaign, strengthen democratic institutions and protect human rights.

Nearly seven months into his five-year term, Hichilema is turning out to be a major disappointment on all these issues; a pattern of worrying political developments suggest that democracy is not returning to Zambia, as many people seem to believe.

Lack of institutional reform

A new government’s commitment to democratic and institutional reform is usually demonstrated in the first few months in office — sometimes in the first 100 days — when it lays out its legislative agenda. Hichilema’s administration has been in office for more than six months, but has shown little appetite to change the laws that weaken democracy, undermine human rights, and enabled the authoritarian tendencies of his predecessor.

These include:

• The law on defamation of the president, which makes it an offence punishable by up to three years of imprisonment to publish “any defamatory or insulting matter, whether by writing, print, word of mouth or in any other manner … with intent to bring the president into hatred, ridicule, or contempt”. The provision does not define the terms “defamatory” and “insulting”. This has opened the law to wide interpretation and application that has deterred legitimate criticism of the president. It has also undermined media freedom, led to the arrest of critical voices and, especially under Hichilema’s predecessor, a climate of fear and culture of self-censorship.

• The Cyber Security and Cyber Crimes Act, which subjects cyberspace to appropriation by the state and imposes unjustifiable limitations on free speech, including through policing the use of social media. This law, hurriedly enacted by the Lungu administration on the eve of last year’s election, also violates the right to privacy by allowing the authorities to tap ICT devices, effectively turning everyone into a suspect, and to confiscate electronic gadgets without proper procedural safeguards.

• The Public Order Act, a colonial-era piece of legislation that regulates public gatherings and that requires any person who intends to convene a public meeting or demonstration to “give police at least seven days’ notice”, specifying the date, place, and duration for the assembly. In practice, this law has been used by successive administrations to restrict the rights to public assembly and free speech since people meet to talk or express themselves. Meetings of opposition parties and civic demonstrations against the government were, especially under Lungu, repeatedly curtailed on unspecified security concerns or expedient inability by the police to supervise the event. Violations attract a six-year prison sentence.
In opposition, Hichilema repeatedly vowed to repeal the first two statutes immediately after assuming office. However, in power, he has shown a studied disinterest in fulfilling these campaign promises. Under Zambian law, a motion to repeal an Act of parliament can be moved any time and its success requires a simple majority. Given that his governing United Party for National Development (UPND) holds a majority 99 seats in the 164-member national assembly, the president has no excuse.

The UPND also pledged to reform the problematic Public Order Act. Tellingly, it is not among the proposed bills that the governing party has taken to parliament for enactments into law in the current legislative session.

Emasculating the independent press and abusing the public media

A free press is the lifeblood of any functioning democracy. Under Hichilema’s predecessor, critical media outlets that served as key platforms for opposition parties and civil society were shut down. The Post, Zambia’s leading independent newspaper since the reintroduction of multiparty democracy in 1991, was forcibly closed in June 2016, less than two months before a key general election, using the pretext of failure to settle a disputed tax bill. The publication was subsequently placed into liquidation. (Recently, the supreme court annulled the liquidation of the paper and ordered a retrial of the matter in the high court). Prime TV, the country’s leading private television station since 2013, was forcibly closed in April 2020 in the “public interest”, although no specific charges were laid against the channel.

Although Hichilema’s administration is yet to close any media station, it has overseen four developments that undermine media freedom.

First, the government has introduced 16% VAT on newspaper sales for both print and electronic copies; a move that is widely seen as targeted at the three private daily newspapers, because state-owned publications face no consequences for failure to meet their tax obligations. In a country in which the economy continues to perform poorly and newspapers are already struggling to cope with the advent of social media and meeting already existing tax liabilities, the move threatens to raise the price of newspapers (already out of reach for many Zambians), collapse the industry and, ultimately, affect the public’s right to be informed.

Second, the government has continued with the Lungu-era harassment of the private media. In January, a private TV station, KBN, published a leaked audio of a telephone conversation between Hichilema’s political aide, Levy Ngoma, and permanent secretary in the ministry of home affairs, Josephs Akafumba, in which the duo was heard plotting to use state institutions to undermine the operations of the opposition Democratic Party ahead of a key parliamentary by-election. In addition to the officials’ (ab)use of state resources to promote the partisan interests of the UPND, what outraged many was the revelation by the presidential aide that the scheme was sanctioned by Hichilema and Vice-President Mutale Nalumango.
When initial attempts to quell the ensuing public backlash by discrediting the audio as fake failed, the authorities accused journalists of having tapped the pair’s telephone conversation. And instead of interrogating the presidential aide and permanent secretary, the police arrest the journalists who had publicised the scheme. Meanwhile, in what is emerging as his signature response to serious governance concerns, Hichilema, who no longer holds press conferences and has adopted Lungu’s unwanted legacy of addressing the country through press aides and on airport tarmacs, spoke through deafening silence.

Third, the authorities have employed threats to intimidate independent media. Last month, a lawmaker from the governing party, Kankonyo MP Heartson Mabeta, threatened News Diggers, arguably the most influential and popular private newspaper, with closure after the publication ran a story quoting the UPND secretary general saying the party, which was elected on a campaign of job creation, did not sign a contract with anyone to guarantee them employment. In a country reeling with record unemployment, especially among youths, the public backlash that followed was huge, especially after the paper published the audio recording of the interview. Mabeta accused the newspaper of malice and warned that it risks meeting the same fate as that of The Post – forced closure and liquidation – if it did not change course. Tellingly, no one from the government or the UPND distanced themselves from the MP’s threats, suggesting that his views had the backing of the senior leadership.

Fourth, the UPND have emulated the Patriotic Front’s (PF) unwanted legacy of denying coverage to opposition parties on the state-run Zambia National Broadcasting Corporation (ZNBC) television and radio stations and in the Zambia Daily Mail and Times of Zambia newspapers. So extensive is the coverage extended to government officials, UPND figures, and supporters of the party in power by the state TV, radio, and newspapers that one might be forgiven for thinking that Zambia has reverted to a one-party state. In opposition, Hichilema pledged to stop this culture by transforming the state media into genuine public platforms, establishing legal safeguards for their editorial independence, and reviewing legislation that both undermine their governance structures and leave them highly vulnerable to political interference. In power, it is business as usual: his administration has blacked out opposition voices from ZNBC TV, radio and the two newspapers much in the same way that the PF did when in power. What was previously condemned is now praised.

Assaulting free speech

The assault on free speech under Lungu’s presidency was aided by the earlier cited law on defamation of the president, which, in the absence of what constitutes an insult, effectively criminalises any criticism of the president. Any expectations that things would be different under Hichilema have been dashed in the last few months. Three examples illustrate this point.

In December 2021, police in Lusaka arrested opposition PF official Raphael Nakacinda on a charge of insulting the president after he advised the frequently travelling Hichilema to “put your buttocks down” and address the prevailing high cost of living.

In January, police arrested Morris Lungu, a 42-year-old taxi driver in Livingstone, on a charge of defamation of the president for saying that “if there is a president who is a fool, it is the one who is there”.

Last month, a 24-year-old Saliya Laisha was arrested in Lusaka on a charge of defamation of the president following allegations that she accused Hichilema of having sacrificed, for ritual purposes, six youths who died in unclear circumstances while on a boat cruise on Lake Kariba “so that he can work well as has failed to do so”.

These arrests and court cases on charges of defamation have a demonstrative and chilling effect on even those who are not caught up in them, as they show the costs of criticising elected public officials in ways that are deemed inappropriate by the government. Instead of having their lives upended and spending months or even years in protracted legal cases, many seek to avoid such outcomes by gradually resorting to self-censorship.

The casualty is free speech and poor citizen participation in governance processes. In arresting suspects, police are not acting outside the law since the legislation on defamation of the president remains on the statutes. This shows the urgent need to repeal the enabling law – although Hichilema can in the meantime also request the police not to arrest any critic in his official name. The Minister of Justice Mulambo Haimbe has indicated, without providing any timeframe, that both the POA and defamation of the president laws will be reviewed soon.

Dismantling opposition parties

Given how activities of opposition parties were continuously obstructed by Lungu and the PF, it was expected that Hichilema and the UPND would behave in a different manner. Not so far. Two examples are sufficient or useful here.

On 15 March 2022, the deputy speaker of the National Assembly, Malungo Chisangano, who, like the speaker Nelly Mutti, is generally seen as aligned to the governing party, issued a 30-day ban from parliament on 30 lawmakers from the opposition PF for holding a peaceful protest in the House.

The facts of the matter are that on 30 November 2021, when starting debate on the 2022 budget, the affected MPs noted an anomaly where the minister of finance had presented the Yellow Book using references to 1996 constitutional provisions that no longer exist, following the repeal of the earlier law in 2016. The leader of the opposition in parliament, Brian Mundubile, asked the deputy speaker to direct the minister of finance to correct the error before debate could commence and avoid breaching the Constitution, which members had sworn to protect.

When the request was not honoured, the PF MPs converged in front of the speaker’s mace in protest. This resulted in the suspension of business for about 20 minutes. On resumption, the minister of finance presented a corrected version of the Yellow Book and debate proceeded peacefully. Two MPs from the governing party then asked the speaker if it was acceptable for the opposition MPs to remain in parliament when they had “intentionally disrespected it” by protesting in the manner they did. Gary Nkombo and Mulambo Haimbe, who are also cabinet ministers, claimed without evidence that “the only permissible means for members to express displeasure was by walking out of the House.” After ruling on the matter was reserved to a later date, it was finally delivered on 15 March.

The PF is Zambia’s leading parliamentary opposition party with 51 MPs. Suspending 30 of its lawmakers, especially since nine others are already outside parliament after the speaker had earlier in December 2021 ordered them to stay away until their election petitions are disposed of in the courts of law, suggests an organised effort to weaken the party. It also means that there is effectively no opposition party in the National Assembly, except a handful of independents.

Protests are a commonplace tactic practised in many functional multiparty democracies around the world. The form of expression that such protests take is hardly prescribed anywhere. To treat the action by the PF MPs as a major offence only serves to highlight Zambia’s new slant towards repression, where any attitude towards those in power except craven support becomes prohibited.

Moreover, the deputy speaker’s decision is problematic for two reasons. First, Chisangano failed to establish how the protest by the PF MPs amounted to contempt of parliament and does not fall under the legitimate expression of their democratic freedom. Second, she failed to explain how she arrived at the conclusion that their conduct of merely standing in front of her seat deserved the maximum punishment. Under the law, the National Assembly’s presiding officer has the option to severely reprimand MPs for any misconduct. Yet Chisangano chose to ban them from parliament and suspend their salaries and allowances for a month, despite acknowledging that they were first-time offenders.

The deputy speaker may have reasoned that if the affected MPs were to challenge their suspension in court, the matter is unlikely to be decided before the expiry of the ban, thanks to the slow pace at which even urgent legal matters are decided by the courts in Zambia.

For instance, three months later, the Constitutional Court is yet to determine the matter in which nine other PF MPs had filed an urgent legal challenge to the speaker’s decision to suspend them from parliament on 7 December 2021. Here, we see a possible motivation of the latest suspension: to dismantle or intimidate the opposition into submission and curtail criticism of executive actions.

The decision to suspend the PF MPs also appears to be motivated by a desire for revenge by the UPND. In June 2017, the then PF-aligned speaker of the National Assembly suspended 48 UPND lawmakers for boycotting then-president Lungu’s state of the nation address to the National Assembly. At the time, Hichilema and the UPND condemned the move as draconian and a brazen assault on parliamentary democracy.

Yesterday’s victims are today’s culprits. The only thing that has changed is the silence of those who previously criticised Lungu and the PF for similar conduct.

In other words, the mass suspension of PF MPs should not be seen in isolation; it is as part of a wider pattern of an emerging assault on democratic institutions and human rights in Zambia under the Hichilema administration. This new onslaught has not attracted much outrage because broad sections of civil society and international, mainly Western, actors who condemned brazen attacks on democracy and human rights under Lungu’s rule now either support the new government, think it is too early to criticise the actions of the officials, or simply consider the PF as undeserving of sympathy, given their terrible record on similar issues when in power.

It is no wonder that when Shebby Chilekwa, a PF member and suspect in a murder investigation, recently complained that he had been severely tortured by the police while in detention and even displayed graphic evidence in form of whip-induced scars on his back, not even major human rights bodies expressed outrage.

The other example of how the governing party is out to undermine the opposition occurred in January this year. Days before the Kabwata parliamentary by-election in the capital Lusaka, a candidate from a small opposition party, the United Progressive Party (UPP), published a letter announcing his “withdrawal” from the 20 January race under highly dubious circumstances. Some speculate that the UPND had induced the move for two reasons.

The first would have been to facilitate a new election date when Hichilema, who had a tight itinerary abroad in January, would be available to campaign for the party’s candidate. If there is substance to this allegation, then the consideration was not without foundation. In October 2021, Hichilema’s penchant for travel and failure to dedicate adequate time to the campaigns had cost the ruling party a key parliamentary seat in a previous by-election, won by the opposition PF.

The second reason would have been to enable the ruling party to change its relatively unpopular candidate, Andrew Tayengwa, following internal party resistance to his adoption. During the nearly month-long campaigns heading into the 20 January vote, some disgruntled UPND members, voters, and the opposition in Kabwata alleged that Tayengwa was a foreigner from Zimbabwe who only obtained Zambian identity on the eve of the nominations in December 2021.

Whatever the case, it is highly unlikely that the UPP or any opposition force would have been behind the withdrawal, as there is no obvious way they would benefit. Zambia’s Constitution requires the cancellation of an election if any adopted candidate resigns from his or her party after the close of nominations, the filing of fresh nominations by eligible candidates, and the holding of a new election within 30 days.

Much to the delight of the other opposition parties contesting the poll, the Electoral Commission of Zambia (ECZ) refused to call off the by-election, explaining that the candidate had merely withdrawn from the contest rather than resigned from his party, whose leadership complained that they had failed to reach him to establish the authenticity of the withdrawal letter as he had gone into hiding and switched off all his phones.

A few days later, the electoral body claimed to have received a second letter from the fugitive candidate in which he categorically stated his “resignation” from the UPP but chose not to avail the same document to the public. Curiously, the said letter was addressed to the ECZ, not the UPP, the candidate’s party, whose leader insisted that they had neither heard nor received anything from their member.

Notwithstanding the uncertainty surrounding the purported resignation, the ECZ postponed the poll to 3 February. The UPP was unable to field a candidate in the rearranged election, explaining that they had emptied their resources in supporting the nomination and earlier campaigns of the fugitive candidate.

Meanwhile, the UPND, when it became too obvious that the public would see through the scheme, re-adopted Tayengwa. Freed from travel, Hichilema, alongside several cabinet ministers, literally camped in Kabwata constituency and even flouted the campaign schedule that the electoral body had allocated to the competing parties, helping Tayengwa to a narrow victory over the PF candidate.

This episode suggests that in addition to pressuring supposedly impartial state institutions to directly get involved in an internal party matter, the ruling party is instigating divisions within opposition parties and over-stretching their meagre resources in the same way that the PF did while in government. Opposition parties with little power are potentially being used to manipulate electoral law to suit Hichilema’s party. Again, the UPND is using the same tactics as the PF to rule, but without the consequences of criticism from civil society and international actors.

Weakening the power of civil society

Over the years, Zambia’s democracy has benefited greatly from the presence of a robust and effective non-state sector capable of checking the power of the government. Almost by default, such actors assumed principled positions that appeared to be in tandem with those adopted by the UPND when in opposition. The election of Hichilema has consequently affected the effectiveness of civil society in two main ways.

The first is that many of the critical voices from academia, civil society and the church who spoke truth to power under Lungu have failed to remain impartial after Hichilema’s election. The demobilisation of progressive forces has seen previously neutral and influential voices become part of the choir of praise or lulled into silence after the opposition they were sympathetic to won.

Others have been co-opted into government through appointments to parastatal boards, public bodies such as human rights commissions, or presidential advisory entities, while one or two have applied for professional ranks that can only be conferred by the president and are therefore unlikely to speak out on Hichilema’s worrying tendencies unless their bids fail. Some remain in the long queue for appointments to public office, including diplomatic service.

The second is that previously effective civil society organisations such as the Law Association of Zambia, which were generally seen as having aligned themselves to the PF under Lungu, now lack legitimacy to critique the actions of Hichilema and the UPND. The result is a weakening civil society and a situation where the PF, the same party that almost collapsed the country’s democratic institutions and economy, ironically find itself thrust into a position where it is slowly becoming the new defender of public interest and leading opposition voice.

The passage of time is slowly presenting Hichilema as someone who is out of his depth on many key issues, lacks meaningful responses to Zambia’s crises and only appears good in contrast to the disastrous record of his predecessor. After memories of the PF’s terrible record in office have faded, this developing reality may dawn on many.

If the public become disenchanted with the UPND, and with the possible fallout from the adverse effects of the soon-to-be implemented IMF programme, voters are more likely to see the PF differently, especially if the former governing party manages to resolve its leadership question well and comes out of its elective conference united. If he fails to deliver on the economy, and with his political position threatened, Hichilema may resort to bribery or repression, or both, to retain support. Unless civil society wakes up sooner than later or new progressive voices emerge, Zambia’s democracy may soon be back to the same position in which it was under Lungu.

Nurturing corruption

Hichilema has demonstrated a genuine lack of commitment to fighting corruption in three main ways.

The first is the lack of example. Elected on a platform of anti-corruption, accountability and transparency, Hichilema has so far failed, in typical Donald Trump fashion, to release his assets value – the first major-party presidential nominee and Zambian president, alongside Lungu, in more than 30 years not to disclose his net worth.

Zambian presidents have generally used state power to accumulate. For instance, in less than sixteen months in power, Lungu’s net worth grew from K10.9-million when he first ran for election in 2015 to K23.7-million in 2016 when he ran for re-election. Since the president’s salary is gazetted and he had no known businesses, angry Zambians demanded to know the source of this exponential growth of his earnings. Lungu’s failure to explain fuelled accusations that he had acquired the wealth corruptly.

The former president’s assets value may have increased considerably since 2016, which could explain why he did not release his net worth last year out of fear that the public’s knowledge of his opulence would increase calls for the removal of his immunity if he lost the election.

Although there is no evidence yet to suggest that Hichilema has started stealing public funds or using public office to promote his private interests, the president’s reluctance to publish his net worth is most concerning, given his extensive business interests. Zambians interested in knowing the difference in his assets value between 2021 when he assumed office and, say, 2026, when he will be filing his nomination papers for a second term, will be left frustrated.

The second is that over six months in office, his government’s anti-corruption strategy is chaotic at best and non-existent at worst. The grand corruption of the Lungu era is well known. To date, not a single member of Lungu’s regime has been taken to court on serious corruption charges. The arrests and prosecutions that have been initiated so far have little to do with corruption. With a tone of vengeance around them, they mainly relate to political offences committed against the UPND or its members by PF officials, such as Emmanuel Chilekwa or Mumbi Phiri, when in power.

Although Hichilema continues to brand PF leaders as having presided over a corrupt administration, he appears to do so to delegitimise the opposition party’s standing in the eyes of the electorate not because he harbours any serious plans to act against senior officials of the Lungu administration who looted public funds. Moreover, members of the kleptocratic networks that were deeply involved in high-level corruption under Lungu have since transitioned and cultivated new allies in the governing party.

The third is that Hichilema has turned a blind eye to serious accusations of the corruption in his government. For instance, when opposition parties presented evidence showing executive involvement in inflated procurement of fertiliser in a contract that was awarded to the president’s business associate, Hichilema kept quiet.

Moreover, Hichilema’s lacklustre attitude towards fighting corruption has been shown by his backtracking from a key pre-election commitment to delink the presidency from chairing the board of the parastatal mother body, the Industrial Development Corporation, as part of curbing corruption in government and enhancing corporate governance.

In opposition, Hichilema repeatedly condemned Lungu and, earlier, Michael Sata for failure to amend the IDC enabling legislation, which provides for the anomaly where the president is the chairperson of the board of the parastatal. In power, Hichilema no longer sees anything wrong in doing the same thing that he condemned when done by his predecessors.

Given that the president’s chairmanship of the holding company of all parastatal bodies in the country provides him with immense patronage influence to determine appointment of boards and key personnel (often party cadres and sympathisers), Hichilema’s hypocritical turnaround is not accidental; it is the substance of realpolitik.

Failure to tackle political violence

Under Hichilema’s predecessor, political violence, particularly clashes between supporters of the then-governing PF and the UPND during elections, was a staple. The perpetrators were usually the PF while the UPND were the victims. The police hardly arrested PF cadres but were quick to unleash brutality on opposition members, occasionally culminating in fatalities.

Again, Hichilema pledged to end this culture of political violence. If the two parliamentary by-elections that have occurred since his election are any indicator, then very little has changed. Both the Kaumbwe parliamentary by-election in the Eastern Province and the recent one in Lusaka’s Kabwata constituency featured a series of violent activities that saw the beating of opposition supporters by suspected UPND cadres.

As was the case under the PF, none of the culprits have been arrested to date even when the victims have identified the perpetrators and formally lodged reports to the police. The political violence in Kabwata, for instance, was even preceded by clear threats of violence from senior UPND members, none of whom has been arrested or reprimanded by the party’s leadership.

The narrative of a democratic resurgence in Zambia is false

Although it has slightly improved under Hichilema, Zambia’s democratic trajectory remains most concerning. Based on the early track record, the Hichilema administration has shown a lack of willingness to make structural changes that strengthen accountable, democratic governance. As a result, the political imperatives are likely to leave Zambian institutions as susceptible to manipulation as they were under Lungu.

The recent narrative of a democratic resurgence in Zambia does not adhere to the reality, one that has seen the intimidation of independent media, the arrest of critics for insulting the president, the use of state institutions to undermine the opposition, the weakening of civil society, and the continued corruption in government. Contrary to what many are saying, Zambia is not returning to democracy. Not yet

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