4. Political Governance in Zambia – The Realities
The realities of political governance in Zambia that this section addresses itself to are, here, first reflected in the commitment to good governance as captured by President FTJ Chiluba in the preface of the Republic of Zambia's good governance document. Without seeming snide, an understanding of the construct of good governance by the country's leaders is critical and instructive to the implementation of good governance strategies and indeed the implementation of commitments made to fora where Donor assistance is solicited.
"For us to ensure that the Zambian government governs at the pleasure and to the satisfaction of the Zambian people, we will strive for and guarantee the Zambian people, constitutional legitimacy, accountability, transparent decision making procedures, participatory development, democracy, respect for human rights and adherence to the rule of law." (c.f., Preface, Good Governance document)
These remarks provide an embodiment of the government's commitment to respecting the congruence between governance and democracy that the Zambian people have asserted.
The realities of political governance in Zambia as observed by Civil Society in the period 2000 to date, however show a critical variance. This was especially made glaring during the years to the 2001 tripartite elections. Elections, constitutional review processes, it must be accepted (in addition to human rights reports), provide an unassailable measure of a government's strides to good governance. The performance in these areas as this paper will show is wanting. It is apparent that the assertion of political hegemony and the consequent behaviours has been the core business of government and not the expected effort to actualise not only its commitments, but also uphold the people's asserted congruence.
This section, first provides Civil Society's specific observations on the government of Zambia's evidenced practices and or attempts relative to the Donor concerns discussed in section 3.0. Second, general observations on implementation of actions defined in the good governance policy document and comparative analyses of commitment premised on fiscal resource allocations. Lastly, the section addresses itself to civil society concerns relative to Donors.
Recommendations are provided for each area of concern cited.
4.1 The Specific Observations
Civil Society categorical and specific contentions in political governance relate to the electoral process, corruption, human rights protection, and issues of accountability and transparency.
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Elections
Government's obligation as of CG 2000 and indeed, its own policy document on good governance is the provision of equity in the electoral process. However, civil society observations, in addition to those of international NGOs showed a severe lack of the governments commitment to implement not only the recommended means to ensure equity in the electoral process, but also the will of government to implement its own developed policy guidelines.
In brief, on December 27, 2001, Zambia held presidential, parliamentary and local government elections. In most constituencies, the local government elections were suspended as the Electoral Commission realised that it could not cope with the three tier electoral system. In the presidential race, the incumbent, Mr. Levy Mwanawasa of the ruling MMD polled 29 percent, followed by Mr. Anderson Mazoka of UPND who polled 27 percent. The parliamentary elections resulted in a 50 percent split of the 150 member seats in the National Assembly between the ruling party and the opposition.
The electoral related events and process, either arising out of political competition and those required for the conduct of free and fair elections "can at best be described as "a planned disaster" to the detriment of people's expectations, but to the interests of a continuum of governance decay instituted by the political party in government.8"
A significant number of the elections monitoring and observing groups note that the elections occurred in a manner that undermined the legitimacy and probity of a leadership so elected. Confidence in the electoral process and respect of the right of a people to freely make political choices was not upheld.
For instance the Carter Centre notes:
"…the Centre concludes that the election results are not credible and can not be verified as accurately reflecting the will of Zambian voters. Unless and until the ECZ provides clear evidence to dispel doubts about the accuracy of official results, the Centre believes the legitimacy of the entire electoral process will remain open to question."
In general, The elections monitoring and observing groups cite inadequacies in:
- the timing of the elections;
- logistics (adequacy in preparations and execution of voter registration and actual balloting);
- transparency (especially in ballot result declaration),and;
- adherence to conduct that allows electoral equity,
Appendix III provides summations of local and international NGOs that monitored and observed the 2001 elections in Zambia.9
The two local NGOs, NOCE and ZIMT that hold a contrary assessment on the elections, however do acknowledge the occurrence of irregularities that put into question the legitimacy of the 2001 elections, but conclude that the irregularities are "mere incidences and occurrences of omissions, human error and procedural misplacements." It must be inarguable that omissions or procedural misplacements of a grand scale as evident in the 2001 elections do not, however explained, reflect an acceptable people's political choice.
Further, the behaviour of government in negating electoral equity is still very evident.
In view of the forthcoming by-elections in Lufwanyama constituency, in early June 2002, government through Minister of Home Affairs, Mr Lackson Mapushi, "donated" resources worth Kwacha 164 million to government institutions. The government "donated" medical drugs worth Kwacha 14 million to three Health Centres, and a Kwacha 150 million cheque to Kafushi High School for infrastructure rehabilitation.
Since when did health and education services become the responsibility of a Minister of Home Affairs? There is no other explanation of this behaviour other than the fact that this is a clear case of electoral fraud and abuse of the exercise of public authority
This conduct is undoubtedly indicative of government's lack of resolve to uphold electoral equity, as it is a clear parody of government's action of discontinuing the discredited and discontinued presidential discretionary fund (slush fund) that was overtly used to coerce people into voting for the party in government.
It is apparent, therefore, that there is need for government to, as a matter of urgency, expedite implementation of mechanisms aimed at promoting electoral equity and combating abuse of the exercise of public authority during elections.
It is, hereof hence, asserted that the government should uphold the need for electoral reforms. The Electoral Act of Zambia and the Electoral Commission Act (No. 24 of 1996), should be amended (and in line with the consequent constitutional review argument herein section 4.2(a)) so that:10
- Elections are managed by an autonomous body that does not have the sanction of the president (see also 3.2 (a));
- The appointment of commissioners should be by a more representative body and not the president. This should be subject to greater scrutiny by parliament and/or public inquiry systems. There should be predetermined reserved representation from independent institutions, where the members themselves elect a chair;
- Commissioners are not involved in the day to day management of the elections management;
- There is a constitutional provision for the date of presidential and parliamentary elections. This is informed by Civil Society concerns that the date of elections should not be an electoral act provision;
- The electoral code of conduct should have enforcement mechanisms that are clearly spelt out, provides for harmonisation between institutions that need to enforce the code of conduct, and monitoring of campaign funds and need to limit such funds;
- There are legal provisions for the implementation of continuous registration of voters;
- The Law should have provisions that compel the ECZ to publish polling station results within 21 days after declaration of all election results. This is informed by the present situation where the Commission asserts that there is no legal provision to release polling station level results, except where such results are requested by a court of law.
- Rights and responsibilities of monitors should be spelt out in the Act, and;
- Government does not donate to government institutions when an election is imminent. The law should provide for the criminalisation of such acts, as there are clear cases of abuse of the exercise of public authority. This is simply because in well-administered execution of public authority, government does not donate to government institutions. There are line ministries or institutions tasked with such actions. A perpetuation of such political behaviours is reflective of the inability of the State to serve its population equitably and without always seeking political competition advantage.
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Corruption
Corruption is not only a testimony of failure of governance, but also a critical indicator of the abuse and or misuse of the exercise of public authority. In spite of the political statements made so far, the failure of government in combating corruption is still evident.
First, some individuals cited for corruption aspired to and now hold public office.
Second, government still has to show practical undertakings to redress abuse of the exercise of public authority that drained the country of millions of US dollars, and has to act on the financial irregularities cited in the Auditor General's reports.
Citable cases include:
- The divestiture of ZCCM assets is still shrouded in mystery. To which end a Parliamentary Committee recommended a public inquiry be held as provided for in the Inquiries Act, Cap 41 of the Laws of Zambia, to examine issues of public interest in the management of ZCCM. And that should the inquiry show criminal intent and or abuse of public office, the Director of Public Prosecutions should initiate legal redress.
- The Presidential Housing Initiative (PHI). The Auditor General's report on the PHI for period November 1998 to August 2001, shows glaring abuse of the exercise of public office.11 There is evidence to show that individuals in public office used public resources for their own gains.
- Meridien BIAO (US $ 90 million of public funds were used and to date there is no indication of its recovery or prosecution of persons involved when they are known).
- The Carlington maize saga.
The foregoing may seem historical, however, recent actions with respect to hunting concessions by the minister of Tourism show clear abuse of the exercise of public authority. The minister is alleged to have allocated all the hunting concessions to one individual12. It is such actions that likely sustain corrupt practices in public office.
The institution tasked with control of corruption in Zambia is the Anti-Corruption Commission. The ACC Act fairly is adequate, but as a way of strengthening the fight against corruption there is need to amend the Act to provide for:
- De-linkage of ACC from DPP in terms of prosecution, and asserted allowance for independent prosecutors;
- Corruption penalties that reflect the gravity of the case, and forfeiture of assets likely acquired through corruption or abuse of the exercise of public authority;
- Appointment of commissioners by a more representative body and not the president. With such appointments being subject to greater scrutiny by parliament and public inquiry systems. Representation should be from predetermined constituencies;
- Protection of "whistle-blowers";
- Abuse of public resources and office during an election period being an offence under the Corruption Act and not Electoral Act.
The foregoing is informed by Civil Society position that corruption is a criminal activity that has grave consequences on a people and the socio-political-economic life of a country. Corruption erodes public confidence in the socio-economic and political system and perpetuates organised crime.
Further, corruption corrodes a government's ability to provide for its people and as a consequence, corruption perpetuates poverty and human rights deprivation.
Although, Civil Society asserts the need to control corruption, it is cautious about the resolve of the present government in combating corruption, especially that it is this very vice that seriously undermined the electoral process, and hence bringing into question the government's legitimacy.
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Human Rights Protection
Government's anaemic resolve to uphold human rights was more evident in its inability to allow people exercise their political freedoms freely. (c.f. 4.1(a)).
In addition, extrajudicial killings, impunity, selective application of the law13, and total disregard for human dignity and redress of violations still persist. For instance, government has not yet provided its position on the Japhet Banda Commission of Inquiry on Torture.14
Prison conditions are still unresolved, to the extent that prison deaths are on the increase due to congestion15 and the consequent inhuman conditions that exist.
"There is TB in the prison, malaria, and no doctor. We have rashes, coughs, stomach trouble. My cell is meant for one person. It is 3 metres by 4. I share it with five others.., If we have diarrhoea, which is often, we do it in a plastic bag to cut down the smell and get rid of it in the morning."
These words from a convict at Mukobeko Maximum Prison (Kabwe), effectively captures the plight of thousands of prisoners in Zambia. The government has an international obligation to redress inhuman and degrading treatment of its citizens.
Civil Society position on human rights protection is that:
- Human rights violations must not be tolerated; perpetrators must be held accountable and impunity16 must have punitive and preventive measures, and; there should be redress for victims of human rights violations.
- International conventions ratified by Zambia should be domesticated, as a means of strengthening Human Rights protection.
- There should be practical enforcement and implementation of human rights recommendations.
- The Bill of Rights must be reviewed to provide for only minimal derogations, and its scope broadened premised on the provisions of the recommendations of the Mwanakatwe Constitution Review Commission (c.f. Appendix V).
The institution mandated with human rights adherence and protection, thereof, is the Permanent Human Rights Commission. Civil Society argues that:
- reports and recommendations of the Commission should be binding on government;
- the Commission must have powers to prescribe redress;
- Commissioners should be people who understand Human Rights issues and must be appointed by a representative body and not the president. This should be subject to greater scrutiny by parliament and/or public inquiry systems.
- The Commission must be de-linked from the judicature. Serving judges should not be Commissioners, as this likely leads to conflict of interest, and they should serve for a maximum of five (5) years.
Human Rights Protection and the Media
The media is one institution in Zambia that continually is constrained in its pursuit of information communication. Archaic criminal libel and defamation laws still exist.
Despite the ascendancy of President Levy Patrick Mwanawasa’s government to leadership, no marked change has taken place as far as media reforms are concerned.
On February 11, 2002, Fred M’membe, managing director and editor in chief of the privately owned “Post” newspaper became the first journalist to be arrested and charged under the Mwanawasa administration for allegedly defaming President Mwanawasa by calling him “a cabbage”.
The recent case is that of the “People” newspaper editor Emmanuel Chilekwa, assistant editor Shadreck Banda, reporter Kings Lweendo and student Journalist Jane Chirwa, who were on June 5 arrested and charged for defaming President Mwanawasa. The four are alleged to have published an article in the May 25-31 edition of “The People” newspaper which alleged that President Mwanawasa was suffering from Parkinson’s disease, an incurable brain disorder. It appears that lack of respect for the media has been inherited from the previous administration of Mr. Frederick Chiluba.
We affirm the need:
- For comprehensive reform of media laws in Zambia to make them relevant to democratic governance. There is need for instance to enact a Freedom of Information (F.O.I) law to provide easy access to public information held in public offices.
- To ensure the independence of the public media (state owned), that is, Zambia National Broadcasting Corporation (ZNBC), the Times of Zambia and the Zambia Daily Mail.
- To realise that praise singing for the ruling party and government and demonisation of the Opposition political party views in the public media is not in the public interest and merely serves to contribute to creating tension rather than creating an atmosphere of reconciliation.
- To remove existing media laws that criminalise journalism. Laws relating to Defamation of the President, Publishing False News, Sedition, Espionage are deterrents to investigative journalism. For instance, Section 69 of the penal code, relating to Defamation of the President, has been used to silence dissenting views and criticism of government or key office bearers such as the president. This archaic piece of legislation makes it an offence to defame the President. It remains an offence under this provision for anyone, with intent to bring the reputation of the President into hatred, ridicule or contempt, to publish any defamatory matter, whether in writing, print, word of mouth, or any other form or manner.
- To repeal the current Zambia National Broadcasting Corporation (ZNBC) Act, which provides the Minister of Information immense powers to control the corporation is urgent. The contents of this act, especially the section dealing with licenses should be incorporated in the proposed Independent Broadcasting Authority (IBA).
- For a Broadcasting Act. Such a law would ensure equitable treatment of ZNBC and other competing broadcasters such as private and community radio and television stations. Under a truly democratic dispensation ZNBC must be re-established as a truly public broadcaster that will operate in the public interest and free from political interference. The current situation is that of lack of editorial independence at the nation’s biggest broadcaster.
- For introduction of an Independent Broadcasting Authority (IBA) to be vigorously pursued, as it can lead to reduced political interference in issuing broadcasting licenses and also create an atmosphere of transparency and fairness in the allocation of broadcasting licenses.
- For needed a timetable for law reform in Zambia.
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Accountability and Transparency
Another critical tenet of good governance is the ability of the State and individuals exercising public authority to be openly responsive to its citizens and be willing to be held accountable. Accountability and transparency does not only concern administration of a country's financial resources, as it seems is the interpretation of government today. Accountability and transparency is a broader construct that should extend to human resource appointments to public institutions, information and communication.
For example, a committee, consultancy or advisory unit for electoral reform has been constituted, and no information to date has been released by government even given that electoral issues of public concern.
Current behaviours in human resource appointments, where siblings are appointed to offices that border on the security of the state are unacceptable. Civil Society demands clarification of the status of one Harry Mwanawasa, and if it is that the said has been appointed to a senior position in the country's intelligence service, then we demand that the government provides irrefutable evidence that the person is so qualified. Nepotism and favouritism are vices that negate good governance strides, and work to perpetuate bias in political competition.
Civil Society asserts that there is need for a move away from exclusivity attitudes in government appointments, hate or sectarian attitudes from persons holding public office.
And on fiscal accountability, in particular, we assert that:
- The Auditor General's Office should have the autonomy to provide responsive mechanisms to its reports;
- The Office should submit its report to Parliament with specific pointers as to which cases should be attended to by relevant investigative wings of government, and with such provision being a Constitutional provision;
4.2 The General Observations
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Constitutional and Institutional Reforms
This subsection is informed by the fact that for government to undertake most of the foregoing adequately and within the context of the existing law there is need for constitutional and institutional reforms.
Civil Society, henceforth, calls for:
- Government's categorical position on Constitutional review;
- A constitutional review, that will take into consideration all recommendations from previous Inquiries into constitutional review;
- The simplification and wide dissemination of the constitution of Zambia, especially the Bill of Rights;
- A change in the process of adopting constitutional review recommendations. A Constituent Assembly and not the Executive, should be responsible;
- The shift from a first past the post/simple majority system to a two thirds majority system in the presidential electoral system
- The removal of the parentage clause in the constitution and the apparent discrimination related to chiefs;
- The entrenchment of the provision on tenure of office of the President so that it can not be changed at an individual's will and whims;
- The review of the dominance of the executive in the separation of powers paradigm, with a view of reducing the powers and assigning them to more representative bodies in particular parliament.
- A constitutional provision for the date of presidential and parliamentary elections, and with such date being declared a public holiday;
- The shift to a Cabinet drawn from outside the legislature or parliament as a means of reinforcing the doctrine of Separation of Powers;
- A review of the Inquiries Act so that reporting upon the result of any inquiry should be to Parliament and not the President, and;
- The inclusion of Private members bills/motion in Constitutional reforms.
Further, Civil Society asserts the following on related institutional reforms:
- Parliament
- The need to provide support to Members of Parliament, in form of data search, research and presentation. That is there should be provision of adequate parliament research and support staff, with defined qualifications;
- Dissemination of Bills and Acts should be available on public medium, e.g., Internet, and;
- Parliament as a public institution should be guided by democratic tenets such as equity in access to information and to persons elected to the National Assembly. Parliament should not be an insular institution protected from the citizenry.
- Police Service
- There is need to revisit the recruitment policy, as a means of guarding against political and or sectarian recruitments;
- There is need to curb impunity of police;
- The process of appointing the Inspector General (IG) and tenure should be protected by law. The appointment should be ratified by Parliament, as a way of insulating the Office from political pressure;
- The Police Public Complaints Authority should be constituted as a matter of urgency, as it will serve as s police watchdog and monitor police abuse of powers.
- Director of Public Prosecution
- The DPP should be strengthened and its legal status upscaled, which such upscaling being a constitutional provision. That is, in structure, the DPP should be at the same level as Attorney General;
- Need to have prosecution policy. That is, how prosecutions are launched and how to proceed, and;
- Use of nolle prosecui should not supersede public interests.
- District Administrators
- The DA office is a redundant office. The Office should be discontinued immediately, and the funds budgeted should be channelled to relevant Local Authority institutions or councils. In any case, this is a position reflected in the Poverty Reduction.. which government endorsed.
4.3 Good Governance Policy Implementation
That the good governance policy document asserts the government of Zambia's position on upholding the people's choice of congruence between governance and democracy is inarguable. However, even if one is mindful of the fact that it is predominantly a fiscal based assertion17, the actions undertaken so far do not adequately reflect a concerted political will.
Further, noteworthy is the fact that dissemination of information on the activities implemented is scanty, a behaviour that brings into question government's understanding of accountability and transparency. The succeeding paragraphs highlight sample cases where information has been available.
What is known so far is that, for the Human Rights Commission, the training workshops planned for 2001 have been undertaken, and the human rights database scheduled for December 2000 is still being developed.
Whilst, the Ministry of Legal Affairs' critical undertaking of translating the Constitution of Zambia into the major languages planned to have been realised by December 2001, is yet to be carried out.
The Judiciary planned for the establishment of a Constitutional division of the High Court by December 2001, but the existence of such a court is not known to date. The planned Commercial Court has however been established!
4.4 Civil Society Concerns vis-Р°-vis Donors
The dialectics of foreign policy diplomacy as manifest in the reaction to the 2001 elections in Zambia are a threat to democracy and human rights protection, in particular the rights to exercise one's political choice freely.
To argue further, we quote The Carter Centre Democracy Program Associate Director David Carroll.
"Although the Center has serious concerns about reports of irregularities in the vote tabulation, we have not seen clear evidence of vote rigging. The strengthening of democratic institutions and electoral processes in southern Africa is critical for stability and progress across the continent. The flawed Zambian elections demonstrated important progress as well as the serious challenges that remain."18
This is a viewpoint that is contrary to the same institutions conclusions on the Zambia 2001 elections, that is:
"..As a result, the Centre concludes that the election results are not credible and can not be verified as accurately reflecting the will of Zambian voters. Unless and until the ECZ provides clear evidence to dispel doubts about the accuracy of official results, the Centre believes the legitimacy of the entire electoral process will remain open to question." (c.f Appendix III)
Our concern here is, it is the first statement that the US State Department not only reiterated, but which could have influenced the US and other US aligned Donor institution's reaction to governance in Zambia.
A violation of human rights, political or civic is a violation! It should not need government-abated negation of the exercise of the right to political choice of a nature witnessed in Zimbabwe for Donors to be concerned.
If flaws or irregularities are a democracy requisite, why then did the West demonise Mugabe?
It must be irrevocably accepted that minimal concerns for violations merely serve to provide a continuum of a culture of impunity19, and the consequent general breakdown of democratic governance.
The Donor behaviour in Zambia with respect to good governance is regrettable. Donor assertion of the universality and inviolability of human rights has been inadequate, if not lukewarm.
In this respect, Civil Society in Zambia affirms that Donors should be decisive and exhibit response behaviours that respect the universality and inviolability of human rights.
Footnotes:
- Elections in Zambia: A Question of People, Law and Governance, Afronet Position Paper Series, Jan/Feb 2002
- These include the Carter Centre, the EU, the SADC Parliamentary Forum, the Ecumenical Observer Team, FODEP, Coalition 2001, and NGOCC.
- Appendix IV provides FODEP's recommendations on Electoral reform.
- Report of the Auditor General on the Operations of the Presidential Housing Initiative for the period November 1998 to August 2001.
- The Monitor Issue No. 221, April 12 – 15, 2002
- E.g., Michael Sata's arrest and charge on theft of public property. Michael Sata has since been acquitted.
- A Report of the Commission of Inquiry into the Allegations of Torture, Abuse or Violation of Human Rights on the Persons Suspected of Involvement in the Attempted Coup of 28th October 1997 (GRZ March 2000)
- E.g., concern expressed by Lusaka High Court Judge Thomas Ndhlovu on the number of deaths of suspects remanded in custody – Monday June 3, 2002.
- Merely removing human violators from office does not help combat impunity.
- Note: The programme of action has defined implementation periods, categorised as short medium and long term.
- c.f http://www.cartercenter.org – Activities by Country: Zambia
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Rethinking the Missing, An Afronet Presentation to the ICRC workshop on "The Missing", June 200 - Geneva
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