Inquirisation and judicialisation of politics in Zambia: a discussion on privatisation

Is Zambia trending towards dangerous steps of inquirisation and judicialisation of its politics of governance?

Inquirisation is a mode of governance through commissions of inquiries in which the president, through political paralysis or fear, encourages the convocation of commissions of inquiries from which he now gets the fodder to make political pronouncements and decisions.

The President washes his hands off the issues and points to the apriory petitions as justifications for enabling a commission of inquiry which petitions were in the background, his own creatures. He will then use the recommendations and obiter dictas of the commissioner’s report to aim his arrows at sitting ducks but exonerate himself and his enablers absolutely.

Commissions of inquiry are an absolute discretionary Executive fiat. It is the Executive that has absolute control over the setting up of commissions of inquiry. The executive, through enabling existing Act of Parliament, sets the terms of reference, appoints the chairperson of the commission and appoints all other commissioners and the support staff. He sets the duration of the inquiry and otherwise sets the whole tone of what is expected of the results and recommendations.

Even if the Executive doesn’t dictate what the outcome must be, the character of the politics of the state will imbue the commission with what is expected. The personalities appointed tell part of the story of how it may all pun out. The terms of reference contain the DNA of the expected outcome. If the commission exercises a measure of independence and write a fairly objective report, it is in the discretion of the Executive to bury the report or cherry pick what the Executive wants.

Recall the commission of inquiry into the establishment of the one-party state when the most democratic would-be recommendations were wiped out of existence by the Executive? And there are many other examples that can be given in Zambia and elsewhere.

Let me put a caveat here: when genuinely intended, commissions of inquiry can be very useful vehicles for policy formulation and could assist the Executive in answering genuine public concerns. Commissions of inquiry when properly managed are gargantuan vehicles for accountability. We cannot simply write them off. But we must always keep one eye open to see that they are used for fair and objective accountability purposes, that they are genuine routes for informed policy formulation.

This article discusses the possibly impending constitution of the commission of inquiry into privatisation. From the beginning the move towards privatisation was a controversial one. But its cheerleaders were the new and popular government of Zambia under the Movement for Multiparty Democracy (MMD).

Privatisation was the first major and paradigm shifting economic transformative act the MMD engaged in. Encouraged and superimposed by the World Bank and the IMF and noting the waste and mis- management of national resources by state and parastatal enterprises in the last days of the UNIP government under president Kenneth Kaunda, the privatisation train was unstoppable.

It is ironic that that this historically both popular and unpopular privatisation vessel for the transformation of the Zambian economy from its near collapse under UNIP to its bare survival under the MMD government that the negative aftermath are to be investigated by the symbiotic energies of the remnants of the purveyors of privatisation in the form of madam Edith Nawakwi, in alliance with those who participated in the privatisation in the form of President Edgar Lungu and others. The current government is an alliance of MMD and PF.

This inquiry, if convoked which I doubt, will be very interesting: could the cheerleaders of privatisation and those who benefited really fairly and objectively investigate themselves? If that happens, it would be the best commission of inquiry Zambia would ever have had. But others just want to cut through the BS and call a spade a spade.

The inquiry is intended purely to target one person. STEVE NYIRENDA, the new president of the National Restoration Party has undeniably spoken for many despite mummerings to the contrary by the Vice-President Inonge Wina and others when he declared as reported in the Daily Mail of October 21, 2020 at page 4: “…Steve Nyirenda has asked UPND leader Hakainde Hichilema to explain to the Zambians his transactions with Hotel Inter-continental and Rainbow Lodge… if Mr. Hichilema clarified his involvement in the privatisation process, the setting up of a commission would not be necessary.’’

Isn’t this what this is all about? Isn’t this the elephant in the room? It is a commission of inquiry to investigate one person only. Nyirenda’s predecessor, Elias Chipimo Jr was involved. Nawakwi was involved. President Lungu was involved with Cold Storage.

The Times of Zambia of December 30, 2018 in a two-page spread has a complete list of everyone who was involved in the privatisation issue. Nyirenda has asked none of these people to explain their role in the privatisation issue. There are so many videos now and some showing Edith Nawakwi explaining in real time the privatisation process. How fair can this commission of inquiry be when it is undeniably targeted at one person? And this same process will be set in motion by the Executive which stands to benefit and whose target is an opposition leader who the President fears the most; and has already declared that more than twice that Hakainde Hichilema will never be president of Zambia and words to the effect that HH will be lucky to escape the clutches of the privatisation inquiry.

The President may do indirectly what he cannot do directly. And who unleashed the drive for the privatisation commission petition? What is their loci standi?

In other countries that relish democratic accountability, the courts would have issued an injunction preventing the exercise of executive authority under the circumstances.

The executive has already pronounced himself on this issue. He treats the target of the privatisation inquiry as his enemy. He has said publicly that HH will never be president of Zambia. He had previously detained HH on spurious grounds. The executive by his appointment of various personalities known to him as commissioners will be in control of the process and the outcome.

Have you ever seen a commission of inquiry that will be so stacked against one person than this one? And even before a commission of inquiry is set, how do we get over the hurdle that this proposed commission of inquiry may be analogously res judicata the term applied creatively here for lack of a better legal paradigm. The issue has already been litigated in courts and the judiciary rejected what is now being politically requested. It was rehected at the front end. Inquirisation of politics should also be rejected now.

The issue of privatisation was previously judicially challenged by Yorum Mushitu in Yorum Mushitu v. Zambia Privatisation Agency before High Court judge Kabazo Chanda. Mushitu challenged the privatisation process on the ground that it shouldn’t proceed before a referendum of Zambians to test their agreement or lack thereof with privatisation. If no referendum was held then a fullblown consultation should be conducted with all parties, chiefs, students etc.

Judge Chanda rejected the application on the basis that no Constitutional violations would occur because the people’s representatives in parliament voted in favour of privatisation through an Act of Parliament, the Privatisation Act of 1992. This Act created the Zambia Privatisation Agency which in turn was comprised of two permanent secretaries of commerce and finance along with the Law Association of Zambia, banks, trade unions, the Attorney General, Chamber of Commerce, accountants, employers, dean of the school of business, etc.

The privatisation agency was overseen by Cabinet. The privatisation agency, superintended by Cabinet, is supposed to thoroughly review every part of the privatisation process, including a serious scrutiny of the bidders in the purchase of the assets. This thorough process is what the proposed commission of inquiry is set to second guess.

Here, I am not defending or suggesting that the privatisation process was flawless. Far from it. I am quarrying the motives for the inquiry. It is awash in dirty hands. The commission of inquiry, if set up which I doubt, will have to interrogate all the living members of the Zambia Privatisation Agency and all members of the then cabinet and everyone who participated as listed in the Times of Zambia of December 30, 2018. How did all these people fail? They will have to investigate why the enterprises HH purchased are the only ones that have done very well over the years and where is Cold Storage now? The commissioners would have to interview judge Chanda as to whether he made a mistake in ruling against Mushitu who had then the best interest of Zambians at heart.

Before this commission is set up another commission should be set up to investigate allegations of corruption dating from 2020 going backwards to 2011. How have Zambians been destroyed by corruption from 2011 to 2020? We should wait for three decades to investigate this corruption as we did with privatization? We should not lose people to death before interrogating their deeds after the fact. People engaged in corruption are still alive. Issues are still fresh. Documents and properties are still present.

On privatisation I recommend the following; the commissioners would have to read the following publications among others before beginning their work and ask themselves whether those who organised the petition including President Lungu had taken the time to read privatisation literature and the Act before launching their ill-fated campaign to set up a process to investigate one politician, a successful businessman:

The Privatisation Act 1992; The composition of the Zambia Privatisation Agency; Mushitu v. Zambia Privatisation Agency (1993) unreported High Court case no.1992/HP/2627(KABAZO CHANDA J); Kaunda Francis – Selling the family silver; Mungule M, Structural Adjustment in Zambia: The Issue of Privatisation; Musambachine M, Privatisation of State-owned Enterprises in Zambia, 1992-1996. A Model for Africa? Mwenda K K, Zambia’s Stock Exchange and Privatisation Programme Corporate Finance in Emerging Markets; Times of Zambia, December 30, 2018.

Once one reads the above and more and watches all the videos around, they will discover that the privatisation inquiry is an epitome of inquirisation of politics and will boomerang on those who are throwing this political instrument around. The privatisation inquiry is good in many ways as it will point to the real culprits of corruption and bad governance. And it will clear the soldiers of justice and good governance. You never know on which dialectic pendulum you will land when you initiate the inquirisation of politics.

Next article will be on the dangers of the judicialusation of politics in Zambia.

The author teaches Research Methodologies and Writing in Law, among other subjects.

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