From the Archives.
This article was the first paper in the Afronet Position Paper
Series commencing in the year 2002. The article addresses itself to electoral
issues preceding the 2001 Elections in Zambia, with particular emphasis on
people's right to make political choices, law and governance.
Also
cited as Mbinji, M & Kanyengo. C, (2002), Elections in Zambia: A question of
people, law and governance, in Southern Africa Human Rights Observer Vol 1
1.0 Introduction
The tenet of democratic governance is that people make political
choices, embodied in constitutions and laws, based on their experiences and
aspirations. These choices mould the rules of governance and empower chosen
individual political leaders to manage the common affairs through instruments
and institutions of government.
The right to make political choices is facilitated through a
continual electoral process that after a legally defined period temporarily
culminates in an election. The underlying assumption is that by the temporal
culmination of the electoral process, people and their earlier political
choices will have resolved likely conflicts or issues arising so as to allow
acceptable continuity of governance. It
should also, thence follow that if at election conflicts arise, then
institution of individuals from the exercise of making political choices should
be stayed until such conflicts have been resolved. The inalienable premise of this viewpoint
being that questions of political choices are issues of legitimacy and not
necessary the law. In any case laws derive their legitimacy from people and not
the reverse.
Further, the sustenance of democratic governance is founded on the
right to make political choices and implement such choices without interference
(direct or perceived) from individuals tasked with the management of
government. In most of Africa, however, since the right to make political
choices is "a spaced periodic" exercise, there is always the
likelihood of the rules of governance and instruments of government being
arbitrary changed in favour of powerful and protected interests of a few or the
political party in power. This is easily attained because most of Africa's new
democracies are characterised by highly centralised systems of governance;
excessive state control coupled with limited capacity to govern; erosion of the
boundaries between the state and civil society; weak institutions of both state
and civil society; limited participation in governance by the general citizenry,
and; preferential access to power and resources often determined by partisan
interests.
Zambia towards December 2001 elections had reached the point where
the interests of the powerful and protection of interests of the political
party in power was overtly the sole business of government. The rules of governance and instruments of
government had slowly being changed to the detriment of the majority of the people.
Governance and instruments of government were monopolised by the
state, especially the executive. A people that once had used the 1991 elections
as an opportunity for change now found themselves on the other side of
governance. They became spectators and beggars.
The exercise of their right to make and implement political choices
waned into an abyss of despair.
2.0 Socio-Political Context
Zambia's 1991 elections have been argued to be an opportunity for
change. Zambians now constrained by social and economic hardships resolved to
institute mechanisms of change leading to a more competitive and equitable form
of governance. The governing instrument
– constitution – was amended to allow for political competition. The
re-introduction of multi-party political participation was adopted as a means
of broadening political choices that individuals had to make. Critical to this process is the fact that
re-introduction of plural politics was not in its totality a dictate of the
people of Zambia. Donor and international influence also played a significant
role, as by then, international aid was being tied to internationally
acceptable modes of governance. It must
be acknowledged that people in 1991 exercised their right to political choices
more as an avenue of actualising a desire for change in their social and
economic livelihoods, than change in the mode of governance. Adoption of a
plural political mode of governance was merely instituted as a means that
allowed for broader political choices with respect to intending leadership
participants and intended programs that would meet the people's aspirations.
In the period 1991 to 2001, Zambia's emergent democracy began to
ail, as the individuals tasked with the management of government, began to
exercise their duties in a manner at variance with the people's expectations.
This is a period in which the Law, a codification of acceptable human conduct,
slowly became an instrument of oppression.
Governmental power and Law was used to enhance partisan interests.
Salient governance behaviours that negate democratic practices in
this period are an aggressive exercise of power; disregard of the legal
controls on the exercise of power, and; lack of redress of legitimate political
concerns by the citizenry and political players. In addition, public
information media and public institutions became the sole preserve of the
political party in government.
A fundamental negation of popular participation in democratic
governance was the ruling political party’s response to the 1993 Mwanakatwe
Constitutional review process.
The dialectics for constitutional review was the recognition that
the Constitution of Zambia Act 1973 amendment leading to the Act of 1991,
although paving the way for plural politics, did not adequately address issues
of good governance. The Constitution of Zambia Act, 1991 was, in effect, a
reconciliatory instrument of governance consented to after Inter-political
party dialogue between the UNIP
government and opposition parties in July 1991.
To enhance and entrench democratic governance practices it was felt
there was a need to review this reconciliatory instrument. Practices intended
for consideration included devolution of power, extension of the Bill of Rights
(both in scope and form) and limiting the powers of the office of the
President.
To this effect the Mwanakatwe Constitution Review Commission was
tasked with recommending a Constitution founded on entrenchment of human
rights; democratic principles; of free and fair elections; transparency;
accountability; the rule of law, and; effective public participation in
government and politics. The underlying principle of this process was also to
provide safeguards against the re-emergence of a command centred form of
government.
The Commission diligently carried out its task, but contrary to the
expected adherence to the justification for constitutional review, the
political party
in government's reaction to the recommendations can at best be described as
classical but expected.
Government consulted ex post facto, and instead invoked Article 79
of the Constitution of Zambia Act, which empowered Parliament (where the ruling
political party had an overwhelming majority) to amend the Constitution.
Examples of recommendations that where intended to enhance and
entrench democratic practice in Zambia, that the political party in government
rejected are:
§ On separation of the State and Religion, the Commission recommended
that Zambia should not adopt a state religion. Now the preamble in the
Constitution of Zambia states that "Zambia is a Christian state tolerant
of other religions"
§ The extension of Human Rights to include women and children's
rights; the right to peaceful assembly without prior authority; the right to
petition government and get a response thereto; the right to freedom of
information; right of journalist not to be compelled to disclose their sources;
suspects must be brought before a court of law within 48 hours of arrest; all
media financed by or under the control of government would be organised and
regulated in a manner which would ensure impartiality and the expression of
diversity of opinions; and every person should have the right to access all
information held by the State or any of its organs at any level of government
in so far as such information is required for the exercise or protection of any
of his or her constitutional rights.
Article 79 of the Constitution of Zambia Act 1991 was invoked in defence
of government's ill-informed and deliberate strategy to entrench the political
party's intent on power and protection of self-interests.
§ That Parliament be empowered to scrutinise Executive action and the
work of quasi-government agencies so as to ensure accountability, transparency
and due process of law.
§ That the Constitution be adopted by Constituent Assembly and
Referendum.
Further, in its rushed negation of fundamental tenets that foster
democratic governance, the political party in government decided to constrain
individual's right to participate in the political landscape, to the extent of
contesting the presidency. The citizenry of once parents was now a contention.
Both parents had to be born in Zambia. And undoubtedly, the former president,
Kenneth Kaunda (who was due to contest the 1996 Elections) found himself on the
other end of the supreme Law of his own country.
Consequently, civil and political dissent to the Government's
intentions emerged. There was a general call for the political party in power
to uphold the underlying democratic principles of constitution review through
institution of consensus building mechanisms, as opposed to attempts to
rationalise ex post facto consultation.
In the context, of the right to make political choices, there was a
well-founded fear that accepting the Constitution as reviewed and adopted will
seriously undermine the integrity of the electoral process. It was generally felt that for Zambia to
enhance its democratic practices through individual's exercise of the right to
make political choices there was need for citizenry empowerment in constitution
making and adoption, and need for election ethics and electoral practice
consensus.
It was also argued that parliamentary superiority should not be the
basis for governance. In any case in emergent democracies like Zambia where such
majority was not necessarily obtained because individuals had a choice, but
because of the dictates of socio-economic "amnesia", the legitimacy
of parliamentary superiority is an affront to democratic governance.
With the 1996 Elections nearing, it was inevitable that the
political and electoral behaviours were one of a socio-political environment of
discontent and apathy as the political party in government asserted political
hegemony and ingenuity.
Civil and political concerns were spurned, and the Constitution of
Zambia (Amendment) Bill was passed by Parliament and assented by the State
President. Members of parliament unilaterally disenfranchised the people from
participating in formulating the country's supreme law.
The demands left in a political abyss were that:
§ the Constitution of Zambia (Amendment) Bill 1996 be withdrawn from
Parliamentary consideration to allow for meaningful dialogue;
§ the 1996 Presidential and Parliamentary elections be held under the
Constitution of Zambia Act 1991; the Public Order (Amendment) Act, 1996 be
repelled to allow for an environment of free and fair election;
§ the electoral exercise of voter registration administered by a
foreign agency
subordinates the independence of the country's Elections Commission and undermines
elections integrity;
§ voter registration exercise undertaken by the foreign agency is
unacceptable and unconstitutional and that the 1996 elections should not take
place on the basis of the exercise, and;
§ there be re-registration of voters and establishment of an
environment that can facilitate free and fair elections under an independent
electoral commission,
A discerning feature to note in this period in Zambia's conflicting
democratic governance practices, is that despite the rationalised call that
continuation of Donor aid to dictatorial regimes is a violation of
international and universally reorganised human rights. Donors still continued
to support the political party in government.
There were exceptions, but not strong enough. An example is the June 1,
1996, statement by the USA government which noted that it was reviewing
bilateral and multilateral relationship and assistant programs to the country
in view of recent governance trends. The government was urged to reverse its
decision on the Constitutional amendments. The Government did not rescind its
decision. Was the USA government playing to the political gallery?
A question to be asked is at what point of the state to a process of
undermining democratic governance do donors get concerned? And are donors
really concerned about democratic governance or merely economic governance that
enhances their country's business corporate interests? How then can sustained
development be attained in emergent democracies if Donors seem not to have
uniform policies towards countries deemed to be undermining democratic
governance? Donors should be resolute and be seen to adhere to uniform and
acceptable responses to issues of democratic governance.
3.0 The Behaviour of the
Political Party in Government
In defence of its undemocratic practices, the political party in
government resorted to misinformation campaigns through the public media and
indeed recourse to the law to detain and imprison dissenting individuals.
Popular dissent by individuals and eminent persons like the former
president (Dr. Kaunda) were curtailed when the state instituted unfounded cases
of treason. In addition, UNIP vice
President Senior Chief Inyambo Yeta, and seven other members of UNIP were remanded
in custody, in connection with a spate of mysterious bombings by a group
calling itself the Black Mamba. The group was later charged with treason.
Committal to trial was legally
delayed.
The Law was
further changed, despite dissent in parliament, to facilitate legal frameworks
within which dissent can be further impeded. An example is the Public Order Act
Cap 104, amendment which was ultra vires the Supreme Court ruling of January
10, 1996. Another attempt to stifle the right of individuals to freely express
themselves was through the Media Bill, however this failed.
These acts by the state can be argued to have been ill informed as
the Law derives itself from legitimacy that a people give. The political party
in government, having failed to resolve constitutional concerns that a people
deemed legitimate, merely subverted its own governance legitimacy.
With governance legitimacy waning into oblivion, in the 1996
election period acts by the executive can at best be said to have been acts of
desperation. In view of the fact that the contentions in the constitution may
not allow for more democratic participation in the elections as some citizen's
right to participate were curtailed,
the political party in power was at the crossroads.
To redress the volatile political situation it now found itself in,
the executive, with recourse to the powers bestowed by the Law and those not,
absolved government institutions of their responsibilities through provision of
minimal financing. The executive (that
is the president in particular) became the major institute through which public
funding could be executed. This was facilitated by a partisan parliament's high
appropriations to the office of the president, under the guise of a
presidential discretionary fund.
The presidential discretionary fund was used to "bait"
people into mass support of the political party in government through donation
to churches, sports clubs and whatever else the executive believed could
increase his party's popularity. Even government institutions like schools and
health facilities were now being funded through the presidential discretionary
fund! The implication that such behaviours by the executive seriously
undermined long-term planning was inconsequential, as the ultimate goal was
increased and sustained political hegemony and protection of self-interests.
Noteworthy, is the fact that the presidency became synonymous with
the executive. Establishing the existence of a Cabinet became an exercise in
futility, except when the Auditor General ‘s office released its report, which
was always ignored with impunity. Individuals cited for abuse of public funds
continued to occupy public office.
A beggar syndrome was inevitable. A situation worsened by the
executive's decision to sale public housing to sitting tenants and indeed the
decision by the executive to provide housing, in order to increase its hold on
patronage. While, the initiative may have had positive attributes, the problem
is that individuals tasked with its execution tended to abuse their power.
There have been cases where government ministers unscrupulously evicted tenants
so that they acquire the property.
4.0 The Governance
Consequences
Governance consequences are twofold: breakdown of acceptable
democratic governance, and increased civil and political dissent. The latter, is inarguably a legitimate cause,
even though in emergent democracies it is often constrained by legal
instruments.
The country's continued breakdown of acceptable modes of governance
was the perfect recipe for increased government corruption, as evidenced by the
discredited and illegal Presidential Housing initiative. An entity through
which millions of public funds were funnelled into without any controls
whatsoever.
Corruption is a testimony of failure of governance. When corruption
is endemic as witnessed in the last decade, institutions of governance are
abused by illicit and self-serving behaviours of political leaders. The socio-economic and political consequences
of corruption (which include inability to deliver services and increased
inequalities) lead to declining legitimacy of government, and seriously
undermined democratic values and political equality.
Further, when corruption is endemic, a government behaves in an
indeterminate manner. Issues of governance and self and political interests
become at odds, and to the detriment of a country's citizenry. The failure of government is more elaborate,
when individuals cited for corruption aspire and continue to hold power as it
is evident that the political party in government has no will to stop the
scourge.
Citable examples of the executive's acts in this regard include the
usurping of executive powers from senior civil servants by government
ministers, and the emergence of "undefined" district senior civil
servants, District Administrators (DAs). The DAs sole purpose was to advance
the interests of the political party in power, not different from the pursuits
of the Nazi's in Hitler's Germany. DAs were ill-informed and malignant arms of
the executive and not necessarily government agents at District level.
Government ministers became their own ministries accountants and,
disbursements and procurements intended for government projects were now being
either borrowed for their own political party activities or procured from
themselves. A classical example is one
known minister whose first task in government was to sell a fax machine to his
ministry!
Perceptions of the people that the political party in government was
no longer meeting their governance goals and aspirations towards 2001 elections
gave rise to increased civil society activity and the emergence of more
political parties – mostly a consequence of manipulation in the political party
in government.
An attempt by the political party in power in 2001 to extend the
term of office of the president from the constitutional provision of two five
year terms, was met with a resolved civil society determined to uphold
democratic governance and respect for the supreme law of the country. This
period evidenced concerted government machinations and misinformation in
defence of extending the term of office, through the public media and other
institutions like the church and NGOs.
An offshoot of this constitutional development was the emergence of
inner dissent within the political party in government. This dissent was met
with expulsions from the party in power. The dissenting individuals (most of
them cabinet ministers) consequently formed their own political parties. This
group it must be mentioned not only derided civil society opposition to an
extension of the term of office, but also " piggy backed" on popular
dissent. That the executive usurped
executive powers of instruments and institutions of government and indeed
people participation in governance can be partially blamed on this group of
people.
Acts aimed at criminalising
the legitimacy of the right of people to freely assemble or dissent were
introduced, supported or defended by most members of this group. Most members
of this group celebrated the passing of the Constitutional Amendment Bill in
parliament and congratulated each other for among others barring former
President Kaunda from contesting the 1996 General Elections. The prime motive at the time was the
continued protection of self-interests and unabated corrupt practices.
5.0 Fencing the 2001 Elections
After a decade in which people's aspirations and expectations in
their political choices of the 1991 and 1996 elections reached an all time low,
the 2001 December elections were seen as another opportunity for change. Based
on an over 70 percent voter turnout, it can be said that the argument that
people are not aware of not only their right to make political choices, but
also the power of this right, is unfounded.
The desire to actively participate in the governance of their own
country can not be understated. This
awareness and desire was however constrained.
First, by the fact that the Constitution under which the elections
were being held still had serious unresolved issues. However, it was apparent
that yet again a people exhibited political "amnesia". Constitutional
contentions of 1996, were forgotten.
This omission implied that any electoral process under the Constitution of 1996
is acceptable!
Second, by the behaviour of the executive and the party in power,
and its associated corrosion of public accountability and transparency. In
addition, the transgression on procedures and roles of government institutions
(as cited in the case of DAs).
Third, and most significant by the deliberate laxity, unpreparedness
and impunity with which the statutory body charged with managing the electoral
process behaved. Conflicts and concerns
arising before the election were trivialised as the electoral body in Zambia
assumed a "know it all attitude".
Calls for political party regulatory mechanisms, like an electoral code
of conduct and unbiased access to the public media, were relegated to the
backyard of political rhetoric.
The elections of December 2001 can at most 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.
The timing, logistics (adequacy in preparations) and transparency
(in particular release of the results) were abysmal.
Challenges of the process and result of the "planned electoral
disaster" were consequently pursued through legal channels but to no
avail. The Law at this junction was used to negate the legitimate concerns of
people. This being, the acceptance of a
political leadership likely chosen through an electoral process fraught with
irregularities. The contention being accepting such a leadership negates the
right to make political choices.
The judicial adjudicators based their decisions on the supremacy of
the constitution in resolving political and electoral concerns. That is,
Constitutional and electoral provisions that allow for elected individuals to
take office before resolution of concerns and conflicts were used.
It must be noted that, this argument is founded on the historical
constitutional thinking
in which a closed system of legality is the standard by which the degree of
legitimacy of people’s political concerns are measured and resolved. The underlying assumption of this assertion
is that legitimacy is a mere expression or offshoot of legality.
The problem with this assertion is that the elevation of legality
over legitimacy is not in pact with what the people intended as the sovereign
subjects of the constitution itself. It
inarguably, relegates the people to subjects of the law with its continuum of
contentions, and in third world countries like Zambia puts the people at the
mercy of the political party in power.
It is further argued that for judicial adjudicators to rule at a
preliminary level that electoral political contentions should be addressed
within the constitutional provisions, when in fact people in far flung and
inaccessible areas were still exercising their right to make political choices
days after the president was announced is out rightly a mockery.
How were they supposed to vote for a president of their own choice
when a president was already sworn in? It does not really matter that the
majority had already made their choice. The right to make influential political
choices is an inalienable right.
6.0 The Position and
Conclusion
Legality (lawfulness) and legitimacy should be clearly distinguished
and understood in a broader context.
Legitimacy does not deal with whether actions of governance institutions
are exercised according to the Law.
Legitimacy is a question of whether these acts meet with what is publicly
perceived to be fundamental and acceptable. This includes issues of fair and
equitable practices, and recognition of the right to dissent. The law can not be reduced to an
opportunistic and convenient conduit of control and domination by the political
party in government.
It is clearly evident that the Zambian judicial branch of government
was adhering to the rule of law in its narrowest sense. A government that
adheres to the rule of law in its narrow sense (anything according to the law)
inevitably gives rise to questions about its legitimacy. The critical question
is, on which side of the pendulum of democratic governance does the judiciary
stand in the legality versus legitimacy issue?
In Zambia, there is a precedent where the law transcends a people's
legitimacy to issues of democratic governance. The legal arguments of the year
2001 were not the first.
For example in 1996, the Zambia Democratic Congress (ZDC) judicial
challenge of the constitutionality of the Constitution of Zambia (Amendment)
Bill 1996 and attempt to block the State President's assent, was dismissed by
the Supreme Court. The Court, in partial ruling, ruled that it was not
impossible to amend the Constitution in the manner Parliament did using Article
79 of the Constitution of Zambia Act, 1991.
This ruling did not attempt to realise the underlying argument that for
a partisan Parliament to amend the Constitution in the manner it did, was
seriously a negation of the people's right to make decisions on their own
democratic governance instrument.
It must be borne in mind that judges and lawyers in advancing and
using legal provisions to regulate and or to legitimise governmental power is a
function of their relationship to the dominant state. However, the sustenance
and protection of the rule of law is not the sole preserve of the judiciary.
The challenge for the people's right to make political choices and
the electoral process in Zambia can be summed in terms of Muna Ndulo's
argument for institution of constitutional democracy in Africa. That is,
"ensuring that the legitimacy of the government is regularly established
by requiring that governmental powers are not assumed or exercised except with
the mandate of the people given at periodic intervals through free and fair
elections or referenda that are executed and administered according to the
constitution and well defined electoral laws, and; resolving disputes,
including disputes relating to the constitutional proprietary of legislation
and other government acts, impartially and in accordance with the constitution
and by regular, ordinary courts which are independent of the
disputants."
The challenge for Zambia however goes further than these summations.
The Zambian constitution is not yet an acceptable instrument of
governance and political conflict resolution. Concerns raised over the years
have to be addressed in the interest of democratic governance and to allow the
people ownership of the fundamental law.
The consequent judicial recourse and
judgements (stayed or not) thereof premised on the constitution raise questions
as to what the Zambian constitution is. Is the constitution merely a legal
instrument of legitimising the status quo in terms of social and political
order? Or is it a prescriptive instrument that defines rules and procedures,
institutions and procedures that shape the political basis for change and
actualisation of people's aspirations? At what stage should it engage the question
of the legitimacy of people's electoral concerns, in a political environment of
mistrust and where the political party in power has overwhelming influence on
the judiciary?
In closing our discourse, our
position is, it must be acknowledged and accepted that the measure of the
advance of democratic governance is the degree to which public
opinion/expression can control political behaviours of individuals tasked with
government. The failure by the Law to
protect people's right to control political behaviours by individuals in
government that undermine the legitimacy of governance and the expected
functions of government are an unacceptable negation of the Law itself, and an
impediment of the advance of democratic governance.
