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
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.
 Muna Ndulo, Democracy, Institution Building and Poverty in Africa, Villa Borsig Workshop Series 1999
 The Mwanakatwe Constitutional Review Commission of Statutory Instrument number 151 of November 22, 1993 (under the Inquiries Act cap 181)
 United Nation Independence Party
 MMD (Movement for Multi Party Democracy)
 Note, an Israel agency NIKUV was contracted to undertake voter registration and voter card printing
 The major opposition party UNIP boycotted the 1996 elections. In the same year the National Democratic Institute (NDI) withdrew from Zambia citing the likelihood of government actions curtailing electoral competition and participation, political discourse and freedom of expression.
 Some of these individuals were reported as singing and dancing at the passing of the controversial bill.
 It must be noted here the electoral process was a critical concern preceding the 1996 elections and was never resolved.
 Gunther Teubner and Zenon Bankowski, Law as an Autopoietic System (Oxford: Blackwell, 1993)
 The constricted interpretation of the rule of law.
 c.f. citation 3.