Sishuwa Sishuwa says even in Zambia’s continuing fall from grace, the petition against the nomination of Edgar Lungu as a candidate for election presents a watershed moment for the country.
In a wide-ranging interview, Dr Sishuwa observed that countries where judicial independence and presidential term limits have been ignored have slid into disorder, authoritarian rule and dictatorship.
‘The judges on the ConCourt must surely feel the weight of history on their shoulders. It is no exaggeration to say that the fate of Zambia’s Constitution and democracy lies in their hands’, he said.
Alongside Chapter One Foundation, the historian has filed a petition in the Constitutional Court of Zambia challenging the constitutionality of the nomination of Lungu as a candidate for election to the office of President in the forthcoming 12 August General Election.
The petitioners’ action is based on Article 52 (4) of the Constitution of Zambia, which states that ‘A person may challenge, before court or tribunal, as prescribed, the nomination of a candidate within seven days of the close of nomination and the court shall hear the case within twenty-one days of its lodgement.’
Dr Sishuwa and Chapter One Foundation are represented by Lusaka lawyer John Sangwa. Lungu, the ruling Patriotic Front presidential candidate, has retained six law firms. These are Makebi Zulu Advocates, Eric Silwamba, Jalasi and Linyama Legal Practitioners, Ferd Jere and Co. belonging to Bokani Soko, Ellis & Co. (the firm where Attorney General Likando Kalaluka was partner before his appointment to public office), DH Kemp, and Central Chambers. The Attorney General has also joined the matter in opposition to the petitioners.
The matter comes up for hearing in the Constitutional Court on 8 and 9 June at 09:00hrs.
News Diggers caught up with Dr Sishuwa for an interview, and below was the full Q and A.
What is the essence of the petition?
The essence of the petition is to protect the sanctity and supremacy of the Constitution of Zambia. It is important to recall that Edgar Lungu was first elected in 2015 following Michael Sata’s untimely death in office. He was then re-elected in the controversial August 2016 polls. Zambia’s Constitution contains a clear two-term limit for the presidency, but Lungu and his supporters argue that his first term of just 18 months should not count towards this total and that he should therefore be allowed to stand for another term. What is being suggested – that Lungu can stand for a third term – is an act of violence against the Constitution. The law says one can only hold office twice.
What Lungu is trying to do is to push for a bogus interpretation of the Constitution to allow him stand for a third term. The simplest way he could have stood for a third term is to do what his friends in Uganda and Rwanda have done: remove term limits. But removing term limits would have required an amendment to the Constitution. Since his party lacked a two-thirds majority in parliament essential to making any changes to the Constitution, he has now turned to the courts. Using the courts, what Lungu is trying to do is destroy the Constitution by achieving a third term without an amendment. The essence of the petition is to ensure that this does not happen, that Lungu is limited to two terms, having twice been elected to the presidency and twice held office.
Since Zambia returned to multiparty democracy in 1991, no president has ever contested an election more than twice, and we would like to uphold that record and achievement. To allow Lungu to succeed is as good as shredding the entire Constitution. So, our petition is not an academic or individual pursuit; if we destroy Zambia’s Constitution, we destroy the very soul of the country. This is the gravity of the situation. We cannot sit idly and watch this act of barbarism being commissioned against the Constitution of Zambia.
What motivated you to challenge the nomination of President Lungu?
Before I answer the substance of your question, please allow me to clarify that we have not challenged the nomination of President Lungu. We have challenged the nomination of Edgar Chagwa Lungu, the presidential candidate of the Patriotic Front, for election to the office of president using the law and the facts that are specific to him. It is important to make that distinction.
To the substance of your question, my action was motivated by two considerations. The first is that of civic responsibility. The Constitution of Zambia imposes on all citizens the obligation to defend it. Article 2 (a) and (b) state that ‘Every person has the right and duty to defend this Constitution; and resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution’.
I believe that Lungu is not eligible to stand for another term of office for the reasons stated in the petition. This has absolutely nothing to do with whether I support or like him as a person. It has everything to do with defending the Constitution. Allowing Lungu to stand would violate the Constitution. Other people have a contrary opinion, and I respect that. We have presented our differing positions before a competent authority for determination. The Constitution mandates the courts to do substantive justice. Whatever they decide will be the record that time will forever recognise.
The second motivation is that of moral responsibility. All Zambians of goodwill have a moral responsibility to protect term limits and prevent the return of one-man rule. Zambia has suffered before because an individual bastardised the Constitution and perpetuated themselves in power. It should terrorise every sane Zambian who has any sense of history when any person begins to act in a manner that threatens to take us back to that horrible past. As a historian, I am perhaps better placed than many to understand the significance of this point and our moral responsibility to prevent us from drifting into that dark hole.
My expertise and intimate knowledge of Zambian political history makes it impossible for me to keep quiet when I see anyone taking a path that risks dragging us down that dangerous route. I care about history and about Zambia. It worries me greatly that we have low regard for history in this country. We need to learn from it. Term limits have a history. We have the responsibility to not only understand that history but also to help preserve term limits and refuse to succumb to the vulgarities of fear.
I do think that we become accomplices to the violations of the Constitution if we do nothing when they occur. In the process, we allow a culture of impunity, undemocratic rule, authoritarianism and eventually dictatorship. It is a citizen’s responsibility and obligation to constantly be alert to violations of the Constitution.
If we do not challenge wrongs before constitutionally established institutions, we are abetting lawlessness that may eventually lead to dictatorship. It is the law that prevents us from being savages. When we stop demanding that everybody respects the Constitution and rule of law, we invite violence in our lives. So, I acted out of moral responsibility.
What would you say to those who say you are being sponsored by the opposition or paid to do this?
Efforts to discredit and devalue my work to protect the Constitution and rule of law by falsely accusing me of being sponsored by the opposition are as sick as the heads in which they are manufactured. I do not need the opposition or ruling party to do my duty for my country. It says a lot about the collapse of our value system as a society that one cannot be seen to be acting in defence of principle or conviction unless there is a monetary or political consideration to their efforts. Well, I am different. I am sponsored by my conscience and the only weapons at my disposal are my brain, ideas, and principles.
The problem with crooks or those who long ago lost the ability to act honestly is that they judge everybody by their rotten standards. The assumption that everybody acts because they are a mercenary is just that: an assumption. There are still many Zambians who could have acted as we have done. They are just afraid of the risks.
The charges that I am being paid to do this are coming from crooks and unprincipled people who are using their own low standards. I am not paid by anybody to do this. I am moved by duty, my conscience, and the urgent desire to prevent the country sliding into anarchy because the Constitution and the rule of law are no longer respected. I do not want that to happen to a country I love dearly, but crooks think everybody is like them. I have nothing but contempt for such people because their warped thinking implies that we are a people incapable of doing anything good unless we are paid.
Are you not afraid of the risks to your life for undertaking this petition? There has also been talk that your job at the University of Zambia is on the line.
I recognise that the degree of poverty in Zambia makes it very dangerous to undertake these things, but a greater terror awaits us if we do not stand up to defend the Constitution and do the things that matter most. Failed states do not attain that dubious distinction in a day or a year. The steps towards that status are gradual, incremental, but they all coalesce around the same thing: undermining the key institutions that offer the long-term hope for democratic consolidation – elections, the Constitution, the judiciary, etc.
So, I am more afraid of what might happen to Zambia if we do not respect the Constitution than what might happen to me. They can do whatever they want to me. But the visons of mothers running with children on their backs, of countries that have descended into chaos and lawlessness because they allowed the destruction of their most important institutions, make it impossible for me to keep quiet. Those reversals do not happen overnight. They happen because good people keep quiet for far too long.
It is unwise for anybody to think that all of us have a price or are incapable of seeing the perilous nature of the current trajectory of politics in our country. Honour, duty, love for my homeland and civic responsibility are what motivate me to do these things. The threat from the accumulating destruction occurring around us is far scarier than the threat of being arrested or killed. If they killed me, they would only do that to one citizen. I am out to prevent many citizens, the whole country, from being affected.
Believe me when I say I fear no one, human or divine. I know that if I die in the struggle, others will take my place. We must hold our leaders to account, irrespective of the consequence that may come our way. It would be nice to have more people like John Sangwa, Linda Kasonde, Musa Mwenye, Laura Miti, Chama Fumba and a few others who defend democracy, speak truth to power and campaign against the erosion of democratic institutions. But we must find comfort in the fact that we are enough. We are enough because at its core, our job is very simple. It is to be the pinhead of the needle of justice and clean governance. Our job is to give courage to those who are scared. We do not have to be too many for that; we are enough. The cowards will join eventually; they always do.
As for my university job, I have no illusions. I know that it is on the line, but my conscience is very clear. The way the university administrators behaved when a government official accused me of publishing seditious material shows that they are just cowards. They have already demonstrated that they are actively looking for ways to get rid of me because they lack the capacity to protect the rights of academics to freely produce knowledge. Their problem right now is that they cannot find anything to pin on me. It is unheard of for a university to disown any of their academic members of staff in the heat of a debate in the public domain. If they cannot stand up to the authorities, they should enter the fray and differ with my ideas. Intimidation will not work. Any institution that pretends to be a university but cannot protect its intellectuals’ right to think and publish does not deserve to be called a university.
What is the expected outcome?
There are two possible outcomes. One is that we lose the petition. This outcome would mean that Lungu would be allowed to stand for another term of office. In effect, we would have destroyed the two term limits. If his party wins a majority in parliament, Lungu could change the Constitution and either extend term limits or remove them altogether. Once this happens, we are back to one-man rule and Zambia would descend into a complete state of lawlessness and a dark hole that we have never known since the achievement of independence in 1964. And there would be no recovery. All the democratic gains or achievements scored since 1991 will be reversed.
So, this petition is far more important than the actual election petition. An election petition addresses a suspected wrong committed against a fellow political competitor. The harm that will be done by allowing Lungu to stand will be against the country and cannot be undone. Everything we have struggled for since 1991 will be reduced to rubble. We would be setting a very bad precedent. Even amidst Zambia’s continuing fall from grace, the petition against the nomination of Edgar Lungu as a candidate for election is a watershed moment for the country. Zambia’s judges on the Constitutional Court must 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. It is no exaggeration to say that the fate of Zambia’s democracy lies in their hands.
The alternative outcome is that we win the case. If we manage to prevent Lungu from standing for a third term, our democratic credentials, including Zambia’s standing as a constitutional democracy, would be elevated to unprecedented levels. Term limits and the supremacy of the Constitution would be upheld. The country may be poorly managed economically but, constitutionally, we would cement our standing as a democratic country.
Are you not afraid of costs in case you lose the case?
Like the respondents, I am expecting a positive outcome from court. If we lose the case, I pray that the court will not condemn us to costs because we are raising questions of a constitutional nature that are in the public interest. It is counterproductive to impose punitive costs in constitutional matters of public interest such as this one. If such punitive costs are imposed, we might as well strike out Article 2 (a) and (b) from the Constitution that imposes on every citizen the duty and right to defend it. It would be sad if the courts decide to punish me rather than celebrating the fact that I am actively playing my civic duty. These are matters that concern every citizen of the country. I am very sure that there many Zambians out there who are very happy that some Zambians have taken this matter up to the Constitutional Court. I am optimistic that the court will follow its previous precedence where it has not made cost orders in constitutional matters of public importance such as the ones we have raised.
What can others do to support your cause?
I know that many Zambians support us, and we are very grateful for their support. And by us, I mean our lawyer John Sangwa and my co-petitioner, the Chapter One Foundation. Others can support us by attending court on the date of the hearing. That would make a huge difference. Such an action would highlight the significance of the matter and bring a wider eye to what is happening.
Thank you very much for the interview.
You are most welcome.