The inevitable outcome: understanding Hichilema’s release from prison

On 16 August, opposition United Party for National Development (UPND) leader Hakainde Hichilema walked to freedom after spending four months in detention. This moment was celebrated as a coup for the Commonwealth, a sign of democratic functioning and an indication of President Edgar Lungu’s softening position towards political opponents. The reality, however, may be the opposite. To recap: Hichilema was arrested on 11 April over an earlier incident in which a convoy carrying him to the Kuomboka – an annual traditional ceremony of the Lozi-speaking people of Western Province that has long been a central feature of Zambia’s calendar – failed to give way to Lungu’s presidential motorcade heading to the same event. What a dispassionate observer may have regarded as a possible violation of traffic rules, a needless departure from established protocol in relation to presidential travel, or a reckless driving manoeuvre motivated by a childish desire to arrive at the ceremony first, was soon inflated into a treason charge. A few days after the 8 April clash of motorcades, police violently arrested Hichilema for alleged obstruction of the presidential motorcade, ‘an act that was likely to cause death or grievous harm to the President of the Republic of Zambia, in order to usurp the executive power of the state.’ (Another charge was later added – that Hichilema and others had ‘conspired to mobilise an advance party to ensure that Hichilema was to be accorded the status of the President of the Republic of Zambia at the Kuomboka Ceremony’.) The arrest appeared closely related to the UPND’s refusal to acknowledge Lungu as the legitimate winner of the 2016 elections, and, more revealingly, came almost directly after a press conference where the ruling Patriotic Front (PF) Deputy Secretary General, Mumbi Phiri, demanded that Hichilema be charged with treason.

For the next four months, condemnation of the government’s actions against the leader of the opposition grew both within and beyond Zambia’s borders, but Hichilema’s treason case was never heard. The ruling authorities seemingly used every legal manoeuvre possible to delay the start of trial and keep Hichilema in prison, further stoking political tension. Repeated attempts by domestic actors, notably the Catholic Church Bishops led by Lusaka Archdiocese Telesphore Mpundu, to diffuse the tension by brokering dialogue between Lungu and Hichilema appeared to be heading nowhere. It was not until after the intervention of Patricia Scotland, the Commonwealth Secretary General whose four-day visit to Zambia in early August was marked by a red-carpet reception from State House, that there was a noticeable movement on the treason case after Lungu and the detained Hichilema committed themselves to a process of dialogue. Following a series of meetings with both leaders, the Commonwealth intermediary left the country on 10 August, four days before Hichilema finally had a chance to take his plea before the Lusaka High Court. Trial was to start on 16 August, but when the day arrived, the case was brought to a halt when the Director of Public Prosecutions (DPP), Lillian Siyunyi, entered a nolle prosequi in relation to Hichilema and his five co-accused.

Now that the initial euphoria that accompanied the release of Hichilema from Mukobeko Maximum Prison has subsided, a sober assessment about the process leading up to his freedom and the fate of the Commonwealth-brokered dialogue between him and Lungu ahead of the 2021 elections is needed. The existing explanations for Hichilema’s release – the decisive intervention of the Commonwealth Secretary General, who reportedly issued a vague threat of an international travel ban that would ground Lungu, a noted frequent flyer, if the Hichilema case was not resolved; the restoration of judicial independence in the country; or the magnanimity of President Lungu – are all lacking. As I demonstrate below, Hichilema’s discharge from prison is better understood as a result of the internal political dynamics in Zambia, and was ultimately inevitable given the wider context leading to his arrest.

Indeed, Hichilema’s ordeal was long planned. Campaigning in June 2016 ahead of the August elections, amidst opposition claims that the incumbent was attempting to fix the outcome, Lungu had warned that he would sort out his main political opponent if he refused to concede defeat: ‘If Hichilema refuses to accept the results, he will see what I will do to him. When we win, whoever does not accept the results will see what I will do to them… I want to warn Hichilema to get out of the game if he is not prepared… [to] accept the results’. These comments suggest that Lungu had foreseen that he would win the election and that his main political opponent would refuse to accept the results. What these comments further demonstrate is that even before the election was held, Lungu was already seeking a pretext on which he could detain Hichilema or intimidate him into accepting the results. A treason charge was especially useful for this purpose because it is a non-bailable offence under Zambian law. The pretext was finally found in the infamous motorcade incident. The primary motive behind the treason charge was not to convict Hichilema – any trial would have revealed the glaring errors in the prosecution’s case – but to force or intimidate him into accepting the election results.

What Lungu underestimated, however, was the strength of reaction to the arrest. He seemingly did not anticipate the level of domestic and international criticism and the consequent tension that the incarceration of the country’s main opposition leader bred. Condemnation of Lungu’s actions came from leading opposition figures in Kenya, Zimbabwe, South Africa and Nigeria, all of whom publicised the arrest of Hichilema and demanded his release. The most significant opposition came from within Zambia, from the influential Zambia Conference of Catholic Bishops (ZCCB) led by Mpundu. Barely a week after Hichilema’s arrest, Mpundu issued a statement that, aside from condemning the treason charge against Hichilema and demanding his release, damned Lungu and accused him of dictatorship. Attempts by the ruling elites to discredit the statement as not representative of all Catholic Bishops only prompted the other two Christian church bodies, the Council of Churches in Zambia and the Evangelical Fellowship of Zambia, to subsequently reiterate the ZCCB position at a joint press conference that precipitated the Bishops’ first mediatory meeting with Lungu. The deportation, on 25 May, of South Africa’s Democratic Alliance leader Mmusi Maimane from Zambia, where he had arrived to attend Hichilema’s court appearance, highlighted the erosion of democratic principles under Lungu’s watch and the growing international pressure on Lungu (who insisted that he could not interfere in a case that was properly before court) to release the UPND leader.

By July, when the Catholic Bishops led by Mpundu started the mediation efforts aimed at brokering dialogue between Lungu and Hichilema, it was increasingly evident that the President was searching for a way to release his nemesis without causing himself any further political embarrassment. What possibly stopped him was the fear of creating the impression that he was capitulating to domestic opposition. Most importantly, Lungu was probably scared that if the Catholic Bishops succeeded in bringing the treason case to a halt and securing Hichilema’s release, that would embolden them and confirm their influence, with adverse repercussions for his third term bid. In other words, the 16 August nolle prosequi that the DPP entered in respect to Hichilema’s treason case would have arrived earlier if Lungu had found a non-threatening intermediary who could free him from a self-inflicted mess without any further humiliation. The role of the Commonwealth’s Scotland should be understood in this context: as the missing link.

On the eve of Scotland’s entry into the Catholic Bishops’ mediation efforts, it was clear to many that the treason charge against Hichilema was entirely cooked up, possibly by Lungu himself, and that the President had got himself into an untenable position. His claims concerning the independence of the judiciary and his own respect for the separation of powers were now widely seen as hollow. In accepting Scotland’s intervention, Lungu may have reasoned that it was easier to deal with a civil servant employed by an external organisation desperate to reclaim its relevance in international affairs rather than a domestic political actor, especially one that had already accused him of sliding Zambia into a dictatorship. The Commonwealth Secretary General – who is said to have been recommended to Lungu by Zambia’s founding president Kenneth Kaunda, a man from a previous age who cultivated close ties with the organisation during his time in power – was therefore the perfect candidate to assist Lungu in avoiding the natural and more just end of the treason case, which would have fully exposed him as the villain.

In effect, therefore, Scotland let Lungu off the hook because if the treason case had run its course, as it was about to when the DPP entered a nolle prosequi, all the inadequacies of the case, the complete bogus nature of the charges against Hichilema and the possible extent and implications of presidential involvement would have been laid bare for all to see. Scotland did not save Hichilema; she saved Lungu. The release of Hichilema was not a result of the Commonwealth or Scotland’s intervention, but an inevitable outcome, one that would have been secured by either a complete acquittal if the treason case had run its course (it is highly unlikely that even the most incompetent and partisan judge in the Zambian judiciary would have convicted him on the transparently silly charge that a possible violation of traffic rules constitutes treason), or the discontinuation of the case through a nolle prosequi. In the extremely unlikely event that Hichilema was convicted on the basis of such flimsy evidence, it would have been a serious indictment of the judiciary, and many would have concluded that the rule of law no longer applied in Zambia. The DPP’s decision, or the supposed independence of the judiciary, should be seen in this context: as a belated attempt to salvage a modicum of judicial integrity.

Recent efforts by some commentators and even the Commonwealth itself to present its intervention in the release of Hichilema as decisive are therefore misleading and should be treated with caution. If anything, Scotland and the Commonwealth were easily duped into a case that, more than anything else, reveals their desperate quest for relevance. If anyone deserves credit for the release of Hichilema, it is the Catholic Church Bishops and particularly Mpundu, who, in spite of repeated attempts by the ruling elites to intimidate and discredit him, refused to be silenced. This is not to downplay the role of external actors, but simply to place their efforts in context. If anything, the Commonwealth, a relic in search of a function, needed Zambia more than Zambia needed the Commonwealth. Appearing to negotiate a successful political settlement in Zambia gives the organisation a sense of purpose. In reality, dialogue had already begun under the auspices of the Catholic Church, and it was only Lungu’s unwillingness to accept any local intervention that provided Scotland with a fortuitous opening.

Scotland’s role seems to overlap considerably with the job description of the United Nations Resident Coordinator (UNRC) in Zambia, whose inaction over the Hichilema case is somewhat baffling. The position of UNRC, currently occupied by Janet Rogan, is not that of a disinterested spectator. Any Resident Coordinator as inactive as Rogan would resign if they had any conception of the importance of their job or the magnitude of their failures. The primary role of a UNRC is to prevent or arrest a slide into chaos and conflict. Precisely what Rogan – seen by many Zambians as too close to the levers of power and easily mistaken for a PF functionary – has been doing over the last year is unclear. The UN’s apparent inability to recognise the inadequacies of its coordinator in Zambia, especially given the positive record of Rogan’s predecessors, is a serious indictment of the organisation. What is the purpose of the UN if not to intervene in situations of escalating political tension and violence that threaten to descend into chaos?

Another important point to note about the process leading to the release of Hichilema is that Lungu and the PF’s pan-Africanist credentials are in tatters. Attempts at mediation from institutions within Zambia, such as the Catholic Church, and from African political actors such as former Nigerian president Olusegun Obasanjo, were either rebuffed or wilfully obstructed. When one contrasts the spectacle of a prominent African politician, South Africa’s Mmusi Maimane, being physically prevented from disembarking from an aircraft in Lusaka with the red-carpet treatment accorded to a representative of Zambia’s former colonial power, the hypocrisy is staggering. The only intervention that Lungu, who decries foreign intervention when it suits him, was willing to accept was from an international organisation whose membership comprises the countries that were colonised by Britain (plus one or two that wish they had been). It could hardly be more damning: prioritising links with the successor organisation to the British Empire over relations with local institutions and African political actors is a total rejection of the idea of ‘African solutions to African problems’ and exposes Lungu’s criticism of external intervention as entirely self-serving.

The final broader point to note about the release of Hichilema relates to the publicised dialogue between Hichilema and Lungu, spearheaded by the Commonwealth. At the conclusion of her mission to Zambia, Scotland announced that the two political leaders had committed themselves to a process of dialogue aimed at diffusing tension, preserving peace and resolving their key differences ahead of the 2021 elections. She subsequently appointed a special envoy, Ibrahim Gambari, to oversee the talks in conjunction with local civic organisations, including the Catholic Church. A month after Hichilema was released, nothing concrete in relation to those talks has happened. Gambari recently travelled to Zambia and met the two leaders separately. According to a well-placed source, Gambari is said to be of the impression that President Lungu appears unready for dialogue. This observation is unsurprising and should be understood as a consequence of the marginal role that the Commonwealth played in securing Hichilema’s release.

To begin with, Lungu is likely to delay the talks for as long as possible because this prevents Hichilema from engaging in serious criticism of his rule. Furthermore, it is widely believed that Hichilema agreed to stop contesting the legitimacy of Lungu’s rule in return for unspecific institutional reforms relating to electoral law, judicial independence, media freedom and the police. These demands for reforms, we are told, are to be tabled at their meeting when it finally takes place. If this is true, Hichilema is likely to be disappointed: Lungu is unlikely to institute any reforms that would undermine his own position and bid for absolute power. There is also no mechanism to enforce any agreements reached through these talks. As far as I am aware, the terms and conditions of the agreement for the release of Hichilema have not been made public, and all that is known about them comes from leaks from various sources. How is Lungu to be held accountable for the undertakings he has made if these undertakings have not been made public?

In addition, if Hichilema agreed to stop challenging the conduct and result of the 2016 election, this would seem to give legitimacy to all the deceptions that produced such a flawed and questionable election result, thereby giving us every expectation of seeing exactly the same outcome or even worse in 2021. If Scotland imagines that she has made an agreement with Lungu, then she is naive. But then this perhaps explains why Lungu gave consent to her intervention. Scotland and her envoy are easier to manipulate than Catholic Bishops who understand the cut and thrust of African politics as the ruthless pursuit of political power, and the slippery nature of any undertakings made when trying to change the behaviour of a leader with authoritarian tendencies. By contrast, Scotland – as far as I am aware – has neither the experience of such politics nor of mediating in such a political dispute, and is instead relying on a vocabulary of ‘democracy, peace, good governance and the rule of law’ which has little or no interpretive power for understanding African politics, but which has considerable potential for occluding the problem that she is supposed to be addressing.

         

Sishuwa Sishuwa

About Sishuwa Sishuwa

Sishuwa Sishuwa is the last Zambian nationalist. He is obsessed with all things Zambian, particularly politics and history which he teaches when UNZA is not closed. Sishuwa is a cadre of Nkana Football Club and has a PhD in History from Oxford.

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5 Comments on "The inevitable outcome: understanding Hichilema’s release from prison"

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Baba Juku
Baba Juku

On point here Doc….

Teliya Kumwenda
Teliya Kumwenda

Well writtem. I have enjoyed reading the article. Thank you Mr. Sishuwa.

Buck Teeth Lungu
Buck Teeth Lungu

Totally agreed. Lungu will procrastinate and make sure ECZ and ConCourt are not reformed in time for 2021 elections so that he can rig them massively. The same rigging mechanism that Uhuru used in Kenya is the same one Lungu employed in Zambia, especially for Lusaka and Copperbelt Provinces. The results were pre-fixed and did not tally with real ballot counts. The 2021 election results could be rigged as early as now because Lungu is desperate to continue looting Zambia in his quest to be Zambia’s richest man and Life President.

Ndu
Ndu

Well written piece

Nzima
Nzima

How come l missed the party

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