On 17 July 2017, the Law Association of Zambia (LAZ) issued a press statement on the legality and extent of the threatened state of emergency declared by President Edgar Lungu 12 days earlier and subsequently approved by Parliament for a period of 90 days. In the statement, LAZ made three important observations.
One, the association argued that in declaring the threatened state of emergency, Lungu acted within the bounds of the Constitution. It noted that Article 31 gives the Republican President the legal discretion to take the measure that Lungu took if, in the judgement of the Head of State, a situation exists which, if allowed to continue, may lead to a state of public emergency. The association, however, questioned the timing of Lungu’s move given that the events on which it was based – a spate of highly suspicious fires that saw the burning of several public buildings including, most recently, a third of stalls at Lusaka City Market – were still subject to police investigations when he announced the emergency.
Two, LAZ argued that the constitutional provision that Lungu relied on to declare the threatened state of emergency does not give the President the power to suspend the civil and legal rights of citizens contained in the Bill of Rights. It noted that the power to deviate from the Bill of Rights is only possible under Article 30 of the Constitution, which provides for the declaration of an actual state of emergency. It is worth noting that a day before he declared the emergency, Lungu had threatened to ‘suspend human rights’, begging Zambians to tolerate him ‘if I become a dictator for once’. The noted response by LAZ appears to have been an indirect reminder to Lungu about the limits of presidential powers as expressed in Article 31, especially given that it came a few days before the government announced the rules and regulations that the public were to obey during the emergency.
Three, LAZ argued that the Constitution precludes any extension to the threatened state of emergency beyond the three months approved by Parliament. This is because the power to extend the duration of an emergency is only available under Article 30, which deals with a full state of emergency, and not under Article 31, invoked by Lungu. LAZ further stated that were Lungu or the government to derogate from the provisions of the Constitution during the operation of the emergency, it would consider taking legal action.
If these arguments appeared sound and reasonable to many people, President Lungu did not concur. Responding to LAZ’s comments a day after the press statement was issued, Lungu claimed that the association was politically motivated and challenged it to form a political party: “If the lawyers want to form a political party, let them go ahead and form a political party. Let them not abuse the profession because what they are saying is politics. For me, I challenge them to form a political party, but let them not abuse the profession. If they want to take me on, on that one, they can take me on, we will meet them, but the truth is that there is too much politics in the Law Association of Zambia. So let them form a political party, but to abuse the law, the legal profession I belong to is totally unacceptable.”
What do we make of Lungu’s comments?
First is that the President’s response to LAZ – that the association should form a political party if it is to take him on – suggests that he is conflating politics with party politics, and implies that only politicians who belong to political parties are entitled or allowed to discuss politics. The rest of us, according to this thinking, should keep quiet, except of course at elections, despite the fact that the last election raises doubts about whether ordinary citizens can use even an election to influence which party should govern. It would appear that as we move towards a one-party state, even that level of political participation is being taken away. To be specific, Lungu thinks that any discussion on the limits of presidential powers belongs properly in the realm of party politics. In this view, individual citizens and civil society organisations have virtually no role to play in the political life of Zambia other than voting for and supporting political parties, presumably the Patriotic Front. In taking this position, Lungu appears to have seriously misinterpreted the country’s constitution, which guarantees freedom of expression, something that surely covers political opinions such as the limits of presidential power.
Furthermore, in a democratic country, all individuals and organisations are allowed and entitled to discuss politics. They have a civic duty to participate in politics, to give their opinions on such matters as whether government action is in the interest of particular individuals, in the interest of particular social groups or in the interest of the nation as a whole. A political party is formed essentially to organise a group of people to seek political power, which of course goes beyond the basic civic duty of holding power to account. In Lungu’s worldview, however, a citizen can only exercise their civic duties and enjoy their constitutional liberties if they belong to a political party. Lungu is probably yet to read Article 43 (2a) of the Constitution, which states that “A citizen shall endeavour to acquire basic understanding of this Constitution and promote its ideals and objectives”. The latter aspirations, according to Article 8 (c; e) include the responsibility to promote democracy, constitutionalism and good governance. The comments by President Lungu reveal his limited understanding of both the Constitution and the basic workings of democracy. Why should holding a different opinion to that of another person or institution in a constitutional democracy be the preserve of political parties or those who belong to them? Why is it hard for Lungu and the government to respond to criticism with persuasive and compelling reasons, to have a logical discussion with fellow citizens?
Second, the comments by Lungu should be understood within the broader context of his administration’s crackdown on free speech and intolerance for any opinion, especially of a political nature, that he and his governing Patriotic Front (PF) do not share. A review of recent major public commentaries of top PF and government leaders demonstrates that anyone who criticises Lungu, his administration or the PF is regarded as a subversive element bent on destabilising the country, while those who support the President or his party are praised as patriotic citizens. When Lungu claims that LAZ is not following its mandate, it is likely that he is saying so out of partisan convenience. Had the association heaped praise on him, he would have probably applauded it as a professional body. Perhaps nothing illustrates this point more effectively than the coverage of the statement by LAZ in the state-run media. When LAZ commented that Lungu was within his powers in declaring the threatened state of emergency, the PF and their allies in the state-controlled media welcomed these remarks with favourable and prominent headlines. For instance, a day after LAZ issued the statement, the front page of the Zambia Daily Mail had ‘Lungu on firm ground – LAZ’ as its headline. It was the mere hint of dissent over the grounds on which the threatened state of emergency was declared, and LAZ’s argument that the proclamation can neither be extended nor used to curtail civil liberties, that aroused the ire of Lungu and his associates. This is another indication of a climate of intolerance where anything other than total support for Lungu and the PF is rejected.
LAZ, like any other social or professional group, has the right and the duty to comment on the actions of government: not only those actions which influence their particular group or professional interests, but also where the association thinks that the general public interest is not being served or that the government is not meeting legal and constitutional requirements. As a statutory body, and by the Act of its establishment, LAZ is further and specifically required to advise government on keeping within the law and constitutional requirements, and to blow the whistle on actions which indicate that such basic requirements of good governance are not being properly or sufficiently followed. Lungu would do well to embrace his critics and reconsider his strategy of opposing everything that comes from them, because some of their views can help and even save him from embarrassment or derision. Despite being a lawyer, he has previously demonstrated his limited knowledge and understanding of the law including the Constitution, which he swore to uphold and respect at his inauguration, such as when he kept his Cabinet after the dissolution of Parliament. The President should therefore be grateful for any advice on how he should comply with this central and overriding commitment, especially since, in democratic and constitutional system of governance, any serious transgressions in this fundamental area leave him open to proceedings of impeachment.
Third, Lungu’s response to the comments from LAZ reflects a wider strategy by the ruling authorities to discredit alternative sources of power, purchase consent from the public and create a situation where their own actions cannot be challenged. In relation to LAZ, a professional association of lawyers whose authority and opinions on constitutional matters enjoy considerable public support and respect, the objective of the ruling elites is to blur the distinction between the association’s constitutional mandate and party political concerns. Since the August 2016 elections, Lungu and the PF have embarked on a campaign of propaganda aimed at poisoning the public into believing that any criticism of their actions, however legitimate, is the work of disgruntled citizens who ‘do not have the interest of the nation at heart’ and should therefore be treated as enemies. This process has been made somewhat easier by the relative absence of alternative credible sources of information following the orchestrated closure of The Post and the crackdown on dissent, which has seen many citizens and organisations resorting to self-censorship.
A classic strategy of authoritarian regimes is the cultivation and existence of a political environment where citizens are ignorant of their rights and do not exercise them. In this regard, the unforgivable sin that LAZ committed in the eyes of the President was to empower citizens with the knowledge of their rights and the limits of presidential powers under a threatened state of emergency and in a context where the ruling authorities are seeking a monopoly on political knowledge. This provision of expert and enlightening legal knowledge to an uninformed citizenry came against the concerted attempts of the ruling elites to mislead the public that the government has full emergency powers under Article 31 and that it could extend the emergency at the expiration of the 90 days. Since Lungu regards any criticism of his actions as politically motivated and hostile, he therefore regards LAZ as politically motivated and hostile.
It is worth noting that LAZ is one of the few remaining independent civil society organisations with the capacity to check state power that have refused to succumb to the co-option and coercion machinations of the executive. Its commitment to the promotion of constitutionalism has historical roots. In 2001, LAZ successfully opposed the attempts of former president Frederick Chiluba to amend Zambia’s constitution in order to seek a third term. More recently, in the run-up to the 2016 elections, LAZ successfully petitioned the Constitutional Court to invalidate Lungu’s decision to retain his Cabinet after the dissolution of Parliament. LAZ is also part of the ongoing legal challenge against Lungu’s eligibility to seek another term of office in 2021. It is therefore likely that Lungu is unhappy with the association and consequently seeking to malign it because of its positive record and uncompromising position against any unconstitutional behaviour, but also because he considers the statutory body as a threat to his bid for absolute power and his presidential ambitions. Following unsuccessful attempts by the PF-aligned associates to oust the LAZ executive and the shelving of their plans to repeal the statute that established the association, the strategy of the ruling elites appears to be changing to that of undermining LAZ and discrediting its reputation in the court of public opinion.
From Lungu’s infamous ‘tonne of bricks’ policy of governance, which mainly involves treating opposition parties as enemies of the state, restricting their political activities and locking up their leaders with brute force, we see the importance of his interpreting LAZ as a political party. In other words, if the association can criticise him, then they are, in his view, seeking political power in order to replace him. If they want to replace him, then they are enemies of the state. If they are enemies of the state, then their activities are treasonable. So if LAZ is really an adversarial political party, it follows in Lungu’s logic that it must be disbanded and replaced by an association that must confine itself to looking after the professional concerns of its members and otherwise keeping quiet. So, in his recent outburst against LAZ, we see yet another instructive lapse in Lungu’s superficial rhetoric on democracy, revealing the emerging dictatorial thinking which better explains his actual behaviour. As his ‘humble and democratic’ veil increasingly slips, the frightening rationale behind his growing dictatorial behaviour is gradually revealed.
Where will all this end, the inauguration of a dictatorship? I do not think so, for Lungu and the PF evidently lack the political capital and strategic tools that are essential to effectively justifying, managing and sustaining a dictatorship. Successfully establishing a dictatorship and manufacturing the tacit consent of the Zambian population would require Lungu to have the resources for some kind of redistributive state and to cloak himself in some form of legitimacy – none of which is possible in his case, as he and his cohort are opportunistically selling the little state resources that remain and he lacks the liberation or ‘saviour’ credentials of autocrats like Zimbabwe’s Robert Mugabe, Uganda’s Yoweri Museveni and Rwanda’s Paul Kagame. In addition, any kind of ‘grip’ on the state relies on some overarching moral narrative (or ideological vision) within which a story is woven about the kind of country its citizens aspire to see. The current balance in Lungu’s ‘dictatorship bank account’ shows that he has none of this – no plan, no resources, no legitimating credentials and no ideological vision. Indeed, like the other leaders emerging in his mould around the world (the US’s Donald Trump and Turkey’s Recep Erdogan come to mind), what Lungu is likely to leave in his wake is just total chaos. One thing is clear though: Lungu’s actions will certainly undermine Zambia’s cherished democracy, its political institutions and culture, though they will not affect his position except in terms of how he will be regarded by future historians and political scientists.