A constitutional provision that should have been considered by the NDF

IF YOU listen carefully to the adherents of the proposed constitutional reforms, suggested by the NDF, you would think that the amended 2016 constitution was bought into being by a different political party and government and that the current PF government wants to either tear down the old constitution or improve on the old one brought by that other ancient government. Yet it is the same party and government that gave us the amended 2016 constitution that now insists that the very constitution that they brought into being a mere three years ago   which the President signed with his eyes closed, because it could stand the test of time, despite Brigadier General Miyanda’s caution, is now being judged anemic by this same government, boggles the mind. By the way, where is Brig Gen Miyanda? I miss his commentaries.

Why weren’t the NDF constitutional  proposals not included and incorporated into the amended 2016 constitution in 2016 since the ship or the Pabwato was commandeered by the same captains that now stir the NDF?And why are they turning their poisonous anger against the very people who warned them not to enact that anemic and lacunae-riddled constitution? Do they expect a mature constituency that had warned them against amending that constitution to now join them in a conspiracy of self-aggrandizement exercise?

My thesis is simple: the 2016 amendments were rushed into being in order to win the 2016 elections, warts and all. You remember president Sata had promised a new Constitution within 90 days of victory in the 2011 election. The 2016 election would have been lost hands down without that hurried and error-mangled and internally-contradictory constitution. Others had filed a petition claiming that the election of 2016 was fraudulently won.

It is my further thesis that the NDF constitutional proposals are aimed at winning the 2021 elections and in the process even the critics and others were supposed to be recruited to join in advance the future eventuality of victory. When some critics demurred, they have been subjected to public mutilation as if Zambia is not a democracy. People are free in a democracy to choose to participate or not and to choose to criticize even without participation in the process or resolutions that they are criticizing. If you don’t appreciate the hazards of democracy, you are free to jump over the Victoria Falls or into Lake Kariba. We fought hard to throw out colonialism and we fought hard to throw out the One Party Dictatorship. No one is going to take us back to dictatorship of having no say in the country of our birth.
A lot of proposals are so silly and juvenile they are laughable except that the promoters take them so seriously. Take the example of reforming the public order Act to remove police notification and permit for indoor gatherings and Church attendance. Someone seriously wants to confine the centuries old rigours of democracy to be an indoor affairs only! Indoor democracy only! While Parliament, an indoor praxis is the ultimate prize for democracy, when not acting as a fake Parliament,  it was brought about and continues to be energized by outdoor democratic activities like riots, street protests, demonstrations, rallies, union picketing, public postering, megaphone electioneering, petitions and numerous other activities. If you want to confine democracy to an indoor affair, Victoria Falls is ready to swallow you. Go jump. Lake Bangweulu is ready for you. Go for a swim. You can’t subject Zambians who fought against colonialism and One Party Dictatorship through a combination of outdoor and indoor democratic exertion to a silly indoor affair. Point to me any genuine democratic country in the world where democracy is confined to indoor activities where a permit or notification are not required. Democracy is an all consuming affair, in and outside buildings, churches and bedrooms.

The public order Act must go. The Penal Code addresses everything that the public order Act is geared to protect. The only difference is that the public order Act is a blunt political instrument in the service of the governing regime utilising autonomous police services. The example I have given about the proposed reforms is just an example among numerous others.

The NDF process never even discussed why it was necessary in the first place three years after the heralded amendment of the Constitution in 2016. It never even discussed the fact that the initial genesis of the NDF process was the alleged rigging of the 2016 election resulting in serious internal political conflict which including the false charges of treason against a leading opposition member. The Commonwealth came in to assist. The Church had offered to assist. But just like the 2016 constitutional amendments which were aimed at political survival of the political class, so was the NDF so hijacked. This background was never reviewed as a point of departure. The flawed process that led to the 2016 amended constitution and its failure is the same flawed process that led to the convocation of the NDF and the latter will meet the same fate as the former: anemic outcomes that will need to be reviewed in 2021 after the elections.
By the way FDD president Nawakwi lamented that she was lonely at the NDF as the only female leader of a political party. Why is that? What does Nawakwi do between elections? Why does she only get heard during elections and never vigorously going around between elections on a female crusade to get women and the marginalized organised to form a formidable constituency? And by the way any proposals regarding the involvement of women is already in the SADC women protocol and could easily be implemented. It is also a merely political agenda and need not necessarily be in the constitution. Rwanda and South Africa are examples where women are recruited to run for political office and get higher appointments to be Ministers and other posts.

What the NDF should have considered and recommended for constitutional inclusion was to criminalize election rigging because rigging brings violence and conflict in society. The NDF was a product of the allegations of rigging in 2016 and the resulting conflict. This was never discussed. Rigging should be forbidden by the constitution and the Penal Code. Below are my thoughts on this topic.

There is no reason whatsoever why theft of an election in any country, through rigging, with incontrovertible evidence proving same, should not attract the charge of treason. In the case of Zambia, the parent charge of treason is under Section 43 of the Penal Code.

Analogous sections of this are found in other countries’ criminal statutes. Stealing an election through rigging involves an unlawful, illegal and massive unconstitutional violations of the constitutional and electoral laws of the country to alter the coming into power of a legitimate government chosen by the people. Theft of an election is a fraudulent usurpation of power by an illegitimate government that has been turfed out of power by the country’s voters.  It is a coup d’état to unconstitutionally and illegally cling to power by the incumbent government. The fact that there is initially no violence, a term which is used interminably in Section 43 of the Penal Code, is immaterial as violence is embedded in the very act and fact of rigging an election. Violence is part of the plan to enforce the acquiescence of the population should the rigging be exposed and fought against. And violence can consume the nation in the aftermath of a rigged election as we saw in Ivory Coast, Kenya (2007/08) and elsewhere. In the case of Zambia, individuals were arrested and accused/charged of fomenting violence by trying to resist and expose evidence of rigging. Thus violence is implicated and is part of overt acts  in the enforcement of rigging an election.

In the Edward Shamwana treason case in Zambia, no violence was actually used, but it was part of the plan and even though no violence was used, Shamwana and others were convicted of treason. Those who know about the plan to illegally overthrow the government but who don’t divulge those plans to the authorities can be convicted of misprision of treason. In the case of election theft through rigging, many people would directly or circumstantially have knowledge that rigging is underway.

The result of election theft by rigging is that you have an illegitimate government that does not have the mandate to rule just as you would have a government that took power by force. There is no difference.

Election theft by rigging has grevious aggravating factors and must constitute treason. A coterie of individuals with planning and deliberation aforethought, sometimes over a lengthy period of time, organize to engage in the overt and covert actus reus (action) with requisite mens rea(intention) to violate the constitution and electoral laws of their country. Some of these individuals who participate in the conspiracy to violate the constitution and electoral laws of the country, would have sworn on the Holy Book to follow and uphold the constitution and laws of the country. But here they are, violating the very oath, constitution and laws they had sworn to abide by and enforce. There can be no greater betrayal of the constitution and laws of the country than what is involved in election theft by rigging. This is treason.

Theft of an election by rigging engages the coincidence of actus reus (the doing) and mens rea (intention) to violate the law and is complex. It is not as inept as Captain Solo waking up one day and deciding that he was going to have fun that day at the main radio station! Rigging can be sophisticated and involves many people: the army, the airforce, the police, ministries, civil servants, the judiciary, the presidency, diplomats, banks, immigration, transporters, printers , newspapers, and many other entities and indtitutions.

Sometimes it involves the registration of foreign voters by issuing then the country’s primary identity cards like National Registration Cards. It involves conniving with foreigners to print ballot papers some of which are pre-marked or that are easy to manipulate. Rigging involves training and facilitating individuals, sometimes foreigners to manipulate computers and election technologies in favour of the regime in power to enable it to cling on to power. Theft of an election involves stationing cadres at voting points to intimidate and engage in violence against election monitors or the opposition. Theft of an election by rigging involves destroying the opposition’s votes and inflating that of the party in power. Election theft by rigging involves using the army and police and government ministries and infrastructure to  deprive the citizens of the benefit of installing a legitimate government of their choice. This is as treasonous as it gets. Theft of elections through rigging must be criminalized as acts of treason. That should act as deterrence.

The NDF ignored entirely the raison d’être for its convocation: to address the conflict arising from the alleged rigging of the 2016 election and how the Constitutional Court botched the attendant litigation.

Dr Munyonzwe Hamalengwa teaches law.

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