ZAMBIANS now live in a fear State and not a free State, according to justice Phillip Musonda.
He observes that there is diminished freedom of expression currently.
Meanwhile, the retired Supreme Court of Zambia judge notes that upon realising that the PF government had lost legitimacy, President Edgar Lungu shrunk the political space and undermined the Constitution “by constitutional means” by introducing Bill 10, which seeks to destroy the basic structure of the Constitution.
Dr Musonda’s views are contained in an academic 15-page paper titled ‘Lawfare: Undermining constitutional democracy, the rule of law and human rights in the post-colonial State.’
The paper is for Master of Laws students at the University of Zambia (UNZA).
Dr Musonda is a senior lecturer in law at Cavendish University (Zambia) in Lusaka.
He is a lecturer to Master of Laws students in comparative constitutionalism in Africa.
Dr Musonda is also a member of the Court of Appeal in the Kingdom of Lesotho but he indicates in the academic paper that the views therein do not represent those of that Court of Appeal.
“Under the PF regime, Zambians have experienced profound economic deterioration. [There is] diminished freedom of expression. Zambians now live in a fear State and not a free State. There is currently unresolved gassing of citizens’ homes, which cause breathing problems, which is a terrorist act,” Dr Musonda writes. “Two senior police officers have been implicated – one being the officer commanding [in] Chingola and the head of criminal investigations in the same district and a ruling party official, suggesting it is State-sponsored terror, to pave the way to implicate the opposition and use lawfare to eliminate them from the political scene.”
He says lawfare takes an exponential curve when a regime loses legitimacy and its chances of retaining power are dim.
He observes that lawfare is an evolving concept and defines it as a form of war consisting of the use of the legal system against an enemy, like damaging or delegitimising them, tying up their time or winning a public relations victory.
Dr Musonda indicates that there is correlation between economic deterioration and lawfare.
“A regime becomes brutal when it has failed to improve the economy and is under intense pressure. It is apt to state here that there is correlation between repression and economic deterioration. In 2011 when the Rupiah Banda led Movement for Multiparty Democracy (MMD) government lost the presidential election to Michael Chilufya Sata led Patriotic Front (PF), Zambia’s economy was growing at a healthy 6.5 per cent per annum, average, debt stood at 21 per cent of GDP, debt service [was] stable and inflation [was in] single digits. Rupiah Banda left 12 months reserves to cover imports,” he explains.
Dr Musonda says in Zambia, the only president who did not incarcerate his ardent critics is Rupiah Banda.
He recalls that Banda presided over the memorial service of Frederick Chiluba, “a man who incarcerated him on trumped-up charges of treason during the Black Mamba saga.”
“He restrained the police from arresting his fiercest critic, Michael Sata, for obstructing his motorcade [in Ndola] and yet the same Sata arrested him (Banda) on trumped-up charges, but he was acquitted,” Dr Musonda notes.
“This paper is at no moment suggesting that those who raid public treasuries and are corrupt should not face justice. All [that] is being said is that don’t use the law to victimise your political enemies.”
He adds that lawfare is propelled by the citizens’ complicit, when they are induced to vote into office political leaders who bribe them.
He says negative lawfare obscures a crucial underlying reality of eliminating political opponents from the political scene.
“The prosecution of opposing political party members for unlawful assembly in the Zambian case, for which no ruling political party member has even been charged despite committing the offence so-called frequently than opposition party members, is not a happenstance; it is a calculated scheme to instill fear in the opposition supporters,” Dr Musonda says. “There must be strong and independent institutions to counter actions of a democratically elected government when it decides to go rogue. In Zambia and most developing countries, such institutions are absent.”
Dr Musonda points out that the post-colonial State is one governed by law, not one governed by the rule of law.
“When negative lawfare becomes a way of life for the ruling elite, over the course of time, they create a legal system and institutions that authorise it and a moral code that glorifies it. That is the tragedy over motherland Zambia and other post-colonial States,” he says. “When Chiluba came to power in 1991, he ordered Kaunda’s detention on Christmas Day at Mukobeko Maximum Prison. Whatever grounds existed to warrant such detention is unclear as the former president of Tanzania intervened and Kaunda was released. For all what we know, this may have been vindictive. Kaunda fell victim of his authoritarian style of using the law to eliminate his political opponents, negative lawfare rubber-stamped or green-lighted by an executive-minded judiciary.”
He further indicates that when Levy Mwanawasa came to power in 2002, fearing that Chiluba would overshadow him, he asked for lifting of his immunity by Parliament.
Dr Musonda recalls that the Mwanawasa administration accused Chiluba of having stolen US $43 million, only to be charged with stealing $500,000.
“Admittedly, the allegations were roving and exploratory, as Mwanawasa admitted in his address to the National Assembly that the allegations had not been thoroughly investigated,” Dr Musonda says.
“Mwanawasa incarcerated Sata on a charge of theft of a motor vehicle. After Mwanawasa’s death, Rupiah Banda become president. There was evident good governance, he was tolerant and broad-minded and a good economic manager. He forgave Chiluba who incarcerated him (Banda) on trumped-up charges of treason and organised a memorial lecture and service for him.”
He notes that Banda’s democratic credentials can be likened to those of Nelson Mandela.
“He (Banda) lost an election to a populist demagogue Sata, and he peacefully handed [over] power. Sata deceived the unsuspecting citizens that he was going revitalise the economy, build new houses in 10 days, and put more money in people’s pockets,” Dr Musonda says. “He raided the reserves left by Rupiah Banda and bankrupted the treasury. His successor Edgar Lungu, realising that PF had lost legitimacy, shrunk the political space, undermined the Constitution by constitutional means by placing Bill 10 constitutional amendment, which destroyed the basic structure of the Constitution by intending to increase his powers.”
Dr Musonda further says the dictatorial tendencies of African leaders and the corruption they preside over make them intolerant.
He also remembers that President Lungu enacted Constitution Amendment Act No 2 of 2016, “which attempted to rebalance power.”
“However, in 2019, realising that he had ceded a lot of power, conceived Bill 10, with the objective of arrogating more power to the Executive, tampered with the efficacy of the electoral process, undermining the doctrine of separation of powers, which amounts to destroying the basic structure,” explains Dr Musonda.
“The destruction of the basic structure anchor on the propelling of lawfare, as the President is reposed with extraordinary powers.”