With the general election just two weeks away, all eyes are currently fixed on the office of the presidency. The two-horse race between Edgar Lungu and Hakainde Hichilema will likely go down in history as one of the most monumental and hardest fought elections Zambia has ever known, directing the country’s future for the next generation.
However, with all the excitement of the next fortnight it is easy to forget that the president is just one man, and the presidency just one part of Zambia’s tripartite government. While attentions are fused to the election of our legislative and executive branches next month, the integrity of our independent judiciary continues to slide further into ruin with almost no-one watching.
A report last year by Transparency International found that 28% of Zambians feel that all or most judges and magistrates are corrupt, with 66% believing that corruption overall has increased in the last twelve months. The principal reason for this, the NGO surmised, was that the judiciary is unduly influenced by the executive, with the president responsible for appointing a large number of the country’s senior judges.
Such corruption was most obvious during the founding of the Constitutional Court in 2016, when all six judges appointed by President Lungu were seen as falling short of the eligibility requirements for their positions. Several of the judges were even known to be close to Lungu personally.
This relationship has opened the country’s legal system up to serious condemnation from external observers. In March 2020, Amnesty International, the SADC Lawyers’ Association and the Southern Africa Litigation Centre condemned the judiciary over its dismissal of lawyer John Sangwa after he criticised the government’s proposed Constitutional Amendment Bill 10 and accused the Constitutional Court of failing the nation by refusing to accept a petition challenging the bill’s legality.
Amnesty said the ban against Sangwa was deeply troubling and was designed to intimidate him and other lawyers from speaking out against the government. The bill in question – known as Bill 10 – was designed to massively extend President Lungu’s executive powers, including granting him the ability to unilaterally contract debt and allow his ministers to stay in office during the lead up to an election. The legislation was deemed legal by the courts but fell short of the required two-thirds majority in the National Assembly in November 2020.
Nor was this the first time that serious corruption had been called out in Zambia’s top courts. In November 2018, both Amnesty and Transparency International criticised the Supreme Court for attempting to imprison activist Gregory Chifire on trumped-up charges of contempt after he questioned a controversial ruling related to Stanbic bank.
The case involved Stanbic referring the company Savenda to a credit bureau for blacklisting, based on allegations that they had defaulted on a loan repayment. In March 2018 the Supreme Court ruled in favour of Savenda but Chifire wrote to Zambia’s chief justice to say the court had “omitted very crucial evidence” and asked for the judges responsible to be investigated.
Chifire was subsequently summoned to court and sentenced to six years imprisonment for contempt of court. Amnesty International said at the time that the case “smacks of censorship and victimisation, designed to silence his [Chifire’s] activism work”.
Not only does this case illustrate the dire conditions faced by activists as a result of judicial corruption but it also demonstrates how the failing court system is damaging business interests in Zambia. Stanbic is a multi-national bank based in Nigeria, whose ability to do business in Zambia has been severely undermined by corruption within the legal system. With Zambia facing crippling levels of external debt and rising unemployment, we cannot afford to be harassing foreign businesses in this way.
Yet precisely the same thing is currently happening in the mining sector. In January of this year, the Lusaka Court of Appeal ruled that the state appointed liquidator of Konkola Copper Mines (KCM) could stay in place, despite a November ruling that halted proceedings in order for KCM’s owners Vedanta to pursue arbitration with the government. In February the court went a step further, declaring that the liquidator was free to split up KCM’s assets, making it easier for the government to sell off the mine to potential buyers.
This month, however, the arbitral tribunal in London – which had been overseeing the dispute between Vedanta and the government’s investment group ZCCM – determined that the government was in fact in breach of its shareholder agreement with Vedanta. Legal experts opine that inaction on this order by the Zambian courts would be hugely damaging for the reputation of Zambia’s judiciary. Government’s attempts to sell off KCM assets have failed to attract serious mining investors because of the legal risks involved, pointing to a dismal investment climate – no wonder Glencore withdrew from Mopani.
All this shows how the courts are being corrupted to suit the government’s aims of selling off the mine to other investors to enable them to service their debts. The rot in Zambia’s judiciary is now coming to damage not only Zambians’ rights but also their livelihoods.
Media reports have indicated that Vedanta has promised an additional $1.5 billion (K33.8bn) in investment if they are given back their original 79.4% stake in KCM, which is likely to boost productivity and creating new jobs which is much needed in KCM. If Zambia is going to recover from its recent debt default, this kind of foreign investment will be absolutely essential to ensure long term financial sustainability for the country.
As we approach election day on August 12th, it is clearly vital that we remember our choices extend beyond merely State House and the National Assembly. Government corruption has crept into our courts and threatens such fundamental democratic principles as the right to free speech, the powers of the executive and the right to do business. Zambians deserve better than this and must fight to maintain an independent judiciary as one of the cornerstones of our democracy.