Kenya’s Supreme Court judges, who in September invalidated the initial re-election of Uhuru Kenyatta on grounds of unconstitutional irregularities, have attracted deserved applause from across Africa for their refusal to bow before presidential power and their willingness to act independently and in accordance with the law. President Edgar Lungu has not joined in with this praise. Instead, the courage of Kenya’s judges appears to worry him. On 2 November 2017, Lungu issued a stern warning to the judges on Zambia’s Constitutional Court not to follow the example of the Kenyan judges, as doing so would, in his view, lead to chaos. At present, the Constitutional Court (ConCourt), which has the final say on matters relating to the interpretation of the Constitution, is considering a case to determine whether Lungu, first elected in January 2015 following the untimely death in office of incumbent Michael Sata and then re-elected in the controversial August 2016 elections, is eligible to serve a further presidential term in 2021.
Zambia’s Constitution has a two-term limit for the presidency, but Lungu’s supporters argue that his first term, totalling eighteen months, should not be counted towards the total. Lungu himself, in January this year, declared that he is eligible to stand for another term in the 2021 elections and challenged opposing voices to seek the interpretation of the ConCourt. A few days later, four small opposition parties moved to petition the court, seeking ‘a declaration that President Edgar Lungu is eligible to contest the 2021 Presidential election’. The influential Law Association of Zambia (LAZ) and the main opposition United Party for National Development (UPND), who argue that the small opposition parties were proxies of Lungu, subsequently joined the case seeking a counter declaration. The case comes up for hearing on 15 November and the timing of Lungu’s warning to the ConCourt judges is not coincidental. To avoid misinterpreting what Lungu said, it is worth quoting his remarks at length:
“People are saying Zambian courts should be like Kenyan courts, that they should be brave and make decisions which are in the best interests of the people, but look at what is happening in Kenya now. I am saying the courts of law in Zambia should also see what is happening. They should not behave like they are not part of our African continent. The most important thing I can say now is that, 2021, I am available to stand if my party chooses me. But to my friends in the court system, I say ‘don’t plunge us into chaos by imitating or emulating Kenya or any other court system for that matter which does not care about the interests of the people’. I am saying this…because I have heard that some judges say ‘why don’t we emulate the Kenyan courts? They are very brave, look at what they have done’. I don’t think that is right. We should preserve peace, listen to the voice of the people [and] reflect the will of the people in the Constitution. Whether I am eligible to stand or not in 2021 should not be dependent on the case in Kenya.
“I am saying this because there are people outside Africa and some within Africa who want to bring confusion in Africa. They have started with South Africa, Kenya and Zambia for a regime change. There are people out there who just want regime change because they want to take over from us as managers… that I will not allow. So to my colleagues in the judiciary, my message is ‘just do your work, interpret the law without fear or favour; look at the best interest of this country; do not become a copycat and think that you are a hero if you plunge this country into chaos’. Those people who don’t like peace and freedom will say ‘President Lungu is intimidating the courts of law’; I am not intimidating my colleagues in the judiciary. I am just warning you that I have information that some of you want to be adventurous. Your adventure should not plunge us into chaos, please! [In English,] there is a saying [that] to be forewarned is to be forearmed. We don’t want to plunge this country into chaos because of trying to imitate what is happening elsewhere. We are a beckon of peace and freedom; let us keep it that way. I was on the ballot paper as candidate and I assured that I would protect Zambia, and that I will do.”
A number of organisations and prominent individuals have condemned Lungu’s remarks. These include LAZ, which called on Lungu to retract the comments; the main opposition UPND, who described them as outright intimidation of judges; and US-based prominent Professor of Law Muna Ndulo, who branded the remarks as irresponsible, another example of Lungu’s increasing arrogance, wanton disregard for the rule of law and further evidence of ‘the creeping dictatorship in Zambia’. Condemnation is of course necessary, but it is not sufficient. Zambians need to understand why Lungu is making such comments. His contemptuous pronouncements and implied threats against the judges were neither random nor a result of ignorance and incompetence, as some oppositionists have argued. To the contrary, Lungu is very competent and skilled. His record of effectively destroying the remnants of democracy in Zambia, especially by destroying the vestiges of autonomy in all state institutions outside the executive arm of government, indicate a high degree of commitment to well-defined goals for the purposes of establishing – in the space of only three years – an authoritarian regime and a slide into a fearful dictatorship. Lungu has carried out this task with considerable skill and competence, albeit of a lawless variety, employing a line of political rhetoric and well-concealed hypocrisy that went unrecognised until it was far too late. If Zambians wish to reclaim their democratic institutions and space, they will do well not to underestimate Lungu and the lengths to which he is prepared to go in his bid for absolute power. His thinly veiled threats to the judges of the ConCourt should be seen as part of his wider strategy to stay in power beyond 2021 and to reduce the judiciary to carrying out his bidding. By blatantly and publicly threatening judges before they make a final decision on whether or not he is eligible to stand for another presidential term in 2021, Lungu was speaking to different audiences for different objectives.
Lungu’s first audience is the judges of the ConCourt. His objective is clearly to intimidate them, especially those who are unsure about the consequences of ruling against the presidency. Lungu’s threats that a ‘brave’ and ‘adventurous’ judgement would be met with chaos make it less likely that judges who are sitting on the edge would take the risk. After all, the President probably does not need to persuade all the judges on the ConCourt: only a majority. Many Zambians generally view some judges on the ConCourt as already predisposed towards Lungu, citing as evidence their handling of last year’s election petition and the fact that he appointed all of them even when none meets the constitutional requirements to serve as a judge on the ConCourt: namely, specialised training in human rights or constitutional law and 15 years’ experience as a legal practitioner. In the eyes of such sceptics, therefore, Lungu does not need to do a great deal of work to win over a majority. His comments thus threaten to further erode public respect and confidence in a ConCourt, whose reputation is already low. If the judges find against him on the 2021 issue, he can accuse them – and has already formulated the accusation in advance – of fomenting chaos in the country. If they rule in his favour, the public perception will be that he has successfully leaned on them.
Lungu’s argument that the judges should not behave as if they are not part of Africa is rooted in a patronising and self-serving stereotype that implies that delivering a judgement solely in accordance with the law is un-African; that the essential nature of African politics and jurisprudence is conformity. The President’s claim that the judges should decide cases before them by ‘look[ing] at the best interest of the country’ is a euphemism for stating that they should favourably consider the interests of the ruling political elite or other factors external to the law. This thinking reveals Lungu’s limited understanding of the law and judicial functions. Whether a court’s decision might cause public chaos should be of no concern to the judges, since, as Lungu himself explained, their task is to ‘interpret the law without fear or favour’. Chaos is what follows when judicial rulings are not independent or credible. For instance, there could easily be a chaotic response if judges rule Lungu eligible and Zambians feel that this ruling has only been made because of political pressure and threats.
The second audience that Lungu was speaking to are his supporters in the governing Patriotic Front (PF). In promising chaos, presumably if he is disqualified from standing in 2021, Lungu seeks to achieve two objectives. First, he is effectively telling his followers to exert pressure on the judges for a favourable ruling, as he is already doing. Supporters could, for instance, easily mobilise to block the courts or even conduct protests against independent-minded judges perceived to be anti-Lungu, confident that the police would not disrupt such efforts. This strategy has been deployed before. At the height of last year’s legal challenge against Lungu’s re-election, PF supporters camped outside the ConCourt premises in protest against the court’s unanimous decision to extend the hearing of the petition for a week. The next day, the ConCourt, by majority opinion, set aside its earlier judgement even in the absence of a formal appeal and disposed of the matter inconclusively. Second, Lungu is preparing the minds of his supporters to reject an unfavourable verdict and possibly cause unfathomable chaos that he would then blame on the judges. In other words, should he fail to secure a majority on the ConCourt using political pressure and threats, Lungu is laying the ground for discrediting the judgement. His reference to unspecified foreigners seeking regime change is meant to portray his prospective disqualification as a result of an unholy alliance between judges on the ConCourt, the main opposition in Zambia and the unnamed foreigners. The claim by Lungu that he will not allow ‘regime change because they [i.e. his political opponents] want to take over from us as managers’ seems to contradict the basic precept of democracy in that it denies the legitimacy of an opposition party seeking to gain power, and instead seems to interpret legitimate democratic process as treason.
Invoking the mantra of regime change also allows Lungu to mute any international criticism of the continued erosion of democratic principles in Zambia. It is possible that the international community could rediscover its principles after recent occurrences in Kenya. By deploying the empty rhetoric of foreign interference, Lungu is seeking to head off that prospect by tainting any potential criticism with the idea of foreign-backed regime change. Again, he is preparing the ground here, a trick he undoubtedly learnt from authoritarian figures elsewhere in Africa. It may be that Lungu has sought advice from the leaders of Rwanda, Uganda and Zimbabwe, where the spectre of unspecific foreign intervention is regularly used to justify politically distasteful positions. It is disturbing that Zambia, once rightly regarded as a beacon of democracy on the continent, now finds itself grouped alongside authoritarian regimes. That Robert Mugabe, Yoweri Museveni and Paul Kagame represent Lungu’s most notable political friendships may be an indication of what is in store for Zambia.
Lungu’s third audience are his opponents within the governing party, particularly budding successors who are eyeing his position. A ruling from the ConCourt that he is ineligible to stand would strengthen their hand and reduce Lungu to a lame-duck President. By declaring his presidential candidature in 2021 (subject to his party’s stamping endorsement of his wishes) even before the ConCourt pronounces itself on the matter, Lungu is effectively warning individuals within the PF that he is going nowhere and that they will face the same fate as Chishimba Kambwili, the former Minister of Information who was recently expelled from the party for campaigning to succeed him. Privately, several prominent PF members are hoping that the ConCourt will rule against Lungu because this opens a way for their own ambitions. His threats were prejudicial to the case before the ConCourt and suggest that he is above the law because he will be on the ballot in 2021 with or without the ConCourt’s backing.
In examining Lungu’s threats to judges, it is also important to look beyond the motivations of what he said to consider the reasons behind his fixation on extending his time in power only a year after winning a five-year term. Broadly speaking, there are two reasons why Lungu is unwilling to leave office any time soon, and none of them have to do with national interests.
The first is the fear of possible prosecution after leaving power. His apprehension is reinforced by the fact that all of his predecessors, aside from those who died in office, have faced prosecution after leaving office. Already, Lungu is facing questions about the sources of his newfound wealth. Possible prosecution for corruption, embezzlement or criminal misuse of his powers while president cannot be far from his mind. The solution, then, is to remain in power for as long as possible or until he can find a pliant successor who will not prosecute him. It is even possible that regardless of the outcome of the case relating to his eligibility that is currently before the ConCourt, Lungu might consider staying in power indefinitely by changing the Constitution in order to either extend the number of terms permissible, or abolish presidential term limits altogether. From this point of view, he probably needs to ensure a stay in power until 2026 to consolidate his power even further before pushing through another amendment to the Constitution to further extend his permitted stay in office. Blatantly threatening the ConCourt just before it considers his case is therefore not accidental; it is a calculated strategy that seeks to secure a favourable interpretation of the Constitution before he can embark on the alternative prospect. This causes one to wonder what threats were uttered to the same judges during their consideration of the far more crucial decision on the legitimacy of the previous presidential election. One might fairly assume that the threats were so dire that the judges decided not to even hear the petition, let alone make a judgment. The implication of this scenario is that if a sitting president rigs an election and also controls ConCourt, then he or she can never be voted out of office.
The second possible reason that explains Lungu’s unwillingness to leave office is that he is beholden to the business and political interests of individuals who contributed to his rise to power. Fear of what would happen if Lungu left power has created a sense of insecurity in this group, which, according to well-placed PF insiders, is persuading him to remain in power. As News Diggers! argued in a recent opinion editorial entitled ‘Lungu vomiting what he ate in the night’, Lungu, in seeking another term in office, is not speaking for himself alone. Around him are a number of political and business figures, many of whom were marginalised under the late president Michael Sata but have flourished under Lungu’s presidency. This group feels its time in the corridors of power has been too brief: more time is required to accumulate through the state. And they can clearly see how those they replaced now languish out of power. Senior government and ruling party figures reveal that this group has captured virtually all state institutions.
The term ‘state capture’ – the control of the executive to allow politicians and politically-connected businesspeople to loot public finances – is topical in South Africa but applies utterly in Zambia. It is not simply the executive of the state that has been captured, as is the case in South Africa, but a whole range of institutions including the police, the security services, the investigative agencies, the media, the Electoral Commission of Zambia, the National Prosecution Authority, arguably the judiciary, parliament and various others. This group, working with Lungu, has successfully closed down the critical free press, almost succeeded in muzzling civil society, and many in Zambia believe that it is also responsible for the arrest of prominent opposition figures. Since the recently amended Constitution allows the President to appoint a Minister of Religion, Lungu’s group is, to a certain extent, in charge of the church. With the successful misuse of the police, the violence of PF supporters that is tolerated by the police and the generous use of bogus prosecutions, Lungu and his associates have created a general climate of fear, and are therefore effectively in charge of everybody except those seeking martyrdom. How far this group is willing to go to maintain this grip on power remains to be seen. Could political disappearances and murders that have blighted other African democracies be Zambia’s fate?
Lungu’s threats against the judiciary represent a watershed moment in Zambia’s continuing fall from grace. Previously, Lungu strove to stick to the constitutional and legal position on democracy, constitutionalism and the separation of powers. For instance, when the leader of the opposition was arrested on what appeared to be a trumped-up charge of treason last April, Lungu claimed to have nothing to do with the arrest, and that it would be constitutionally improper for him to interfere with the independent arms of government responsible. Laughable as these claims were, they wrong-footed opponents who were left looking for evidence of how Lungu had influenced these supposedly independent institutions. Now, in the recent case, we see a threat against the ConCourt so thinly veiled that the masquerade of propriety falls away. Suddenly the public words have begun to match the private or secret words that many suspect take place behind the scenes and which would explain some of Lungu’s illegal and unconstitutional actions. Here we see the beginning of a new phase, where capture of state institutions and the installation of a climate and culture of fear is now so complete that Lungu feels confident enough to make explicit the structure of his creeping dictatorship – especially in a situation where there are now effectively no state institutions, whether watchdog, investigatory, or judicial – that can challenge or oppose him. Such a new phase would leave the way open to a more overt and frightening assertion of dictatorial power.
Zambia’s judges on the ConCourt will surely feel the weight of history on their shoulders. Other countries where judicial independence and presidential term limits have been ignored have slid into disorder, authoritarian rule and dictatorship. Which way for Zambia? This is the decision that the judges will make and it is no exaggeration to say that the fate of Zambia’s democracy lies in their hands.