Citizens’ Freedoms in Chains in Zambia?

Guest article by McDonald Chipenzi

Introduction

“We live in a time and era when the call for real freedom and democracy echoes across the entire globe.”^[1]

The word ‘democracy’, as familiar as it has become the world over, has been described as more than a “set of constitutional rules and procedures that determine how a government functions.”^[2] Arguably, in a democracy “a government is only one element co-existing in a social fabric of many and varied institutions, political parties, civil society organizations, trade and students unions, pressure groups, associations and media.”^[3] This is what is called pluralism, which assumes that the many organised groups and institutions in a democratic society do not depend on the government for their existence, legitimacy or authority.

This contribution to CIVICUS’ thematic report on ‘reimagining democracy’ offers an overview of attacks and restrictions on the exercise of citizens’ freedoms and the rights of association, assembly and expression, on democratic dissent, and against the media, activists, religious movements, students’ movements and other parts of civil society in Zambia, and some of the responses.

Rising restrictions

Zambia, which gained independence from Britain in 1964, has been a beacon of democratic hope and stability in the southern African region as far as respecting the rule of law, freedoms and the human rights of citizens are concerned. However, since 2011, when the regime changed from a party that believed in free market ideology to a socialist-oriented party, the country saw a drastic shift in respect for citizens’ human rights and freedoms, including those of association, assembly and expression. Although this was not the first change of government or of parties in power, the coming in of a socialist-oriented party, at least on paper, reignited a debate even on whether the country should revert to being a one-party democracy.

Citizens, individually and collectively, have been largely restricted in their ability to exercise their rights and freedoms since 2011. Media freedoms, for instance, have been restricted particularly since the closure of the largest privately owned newspaper, The Post, in June 2017, while other media outlets have either been summoned, intimidated, or harassed by the regulators, including the Independent Broadcasting Authority (IBA), on the basis of violating broadcasting rules. Yet the same IBA has no jurisdiction over the state-owned media outlets that are the major culprits, along with those media outlets that have become government magazines and gazettes.

Students’ union activities have also been banned on many occasions and some students expelled or suspended from public universities by the relevant ministries after exercising their rights and freedoms to protest and demonstrate, on the grounds that the protests, demonstrations, or other ‘inimical’ activities were in support of or engineered by the opposition. Some ‘rebel’ members of parliament from the ruling party, who attempted to associate with registered political parties, have seen these parties deregistered, on the grounds that they were non-existent political parties. In addition, some religious leaders have been censured, or deported if non-Zambian citizens, and some barred from entering Zambia because they were perceived to be practising anti-Christian activities.

The crackdown of civil activism has not spared artists such as musicians, who have also been threatened by ruling party sympathisers for allegedly demeaning their party president in the songs they compose, leading to the self-exile of some artists for fear of their lives, while some outside artists have been banned from entering Zambia on the grounds of allegedly dressing indecently. Some citizens who have talked ill of the president in bars and other public places have ended up being arrested and prosecuted for defamation of the president.

The USA’s 2017 human rights report on Zambia summarises the present situation thus: “the most significant human rights issues included: arbitrary killings which were prosecuted by authorities; excessive use of force by police; harsh and life-threatening prison conditions; arbitrary arrest; interference with privacy; restrictions on freedoms of the press, speech, and assembly; high-level official corruption; trafficking in persons; and criminalization and arrest of persons engaged in consensual same-sex sexual relationships.”^[4]

This state of affairs has worsened since 2011, with the aim being to silence critical voices. I have personal experience of this. In December 2013, I was fished out of a meeting that hosted former president Rupiah Bwezani Banda, detained and formally arrested for alleged publication of false news likely to alarm the nation, in line with section 67 of the Penal Code. The charge of misdemeanour could lead, if convicted, to a three-year prison sentence. This followed the publication of a news article that appeared in a privately owned newspaper, the Daily Nation, quoting a written statement I had issued on biased police recruitment processes in Zambia. The proprietor of the newspaper and the production editor were also arrested. The protracted one-year case that ensued resulted in close to US$10,000 in legal costs, which were difficult to raise.

Although the arrest was intimidating and unnecessary, the end result of the case was exciting and liberating to many citizens in Zambia, as the judge nullified section 67 of the Penal Code as being unconstitutional, and a number of cases premised on this section of the law that were still in the courts were discontinued. Today, no Zambian citizen is charged with the publication, issuance or distribution of false news. However, indirectly, the government wants to reinstate this law through the proposed cyber laws, which are expected to come into force in 2019.

Beyond the above case, the period under review saw the intimidation, arrest, detention, beating of and issuing of legal suits against journalists, political party leaders and sympathisers and religious leaders, as well as the expulsion or suspension of students’ union leaders, merely for trying to express themselves on national affairs, and also for covering national events in the case of journalists. At the time of writing, six civil and political activists were appearing in court after demanding accountability over the government’s purchase of 42 fire trucks at the cost of US$1 million each, a price that raised many eyebrows in Zambia, particularly as many see the trucks as ‘substandard’. Arrested on 29 September 2017, on the day of the presentation of the national budget, the six were charged with not obeying police orders, even though those orders were unlawful. The police abused the Public Order Act to deny these activists the right to picket the National Assembly but they went ahead and picketed anyway. At the time of writing the case is ongoing in the Magistrate Court of Zambia with no indication of when it will conclude. Well-wishers have to provide legal support to the activists.

The government is devising subtle ways of curtailing citizens’ freedoms. Another example is seen in the case of the two civil activists who questioned a Supreme Court Judgement on a commercial matter between Savenda Management Services and Stanbic Bank Limited. They sent a letter to the Judicial Service Commission and the Chief Justice, Irene Mambilima, and called for a probe of the judges who handled the case. The two are currently being cited for Contempt of Court and have been summoned by the Chief Justice to appear before the Supreme Court on 17 July 2018. This action by the Chief Justice has been construed as intimidation and a demonstration of a judiciary that is self-preserving, contrary to the Constitution of the Republic of Zambia Articles 118 and 236.

The actions detailed above are also contrary to the Southern African Development Community (SADC) Principles and Guidelines Governing Democratic Elections, as revised in 2015,  to which Zambia is a signatory.^[5] Under section 4.1.2 of this agreement, state parties are expected to ensure under that “all citizens [should] enjoy fundamental freedoms and human rights, including freedom of association, assembly and expression.”

But the current government has, on many occasions, denied or restricted citizens their rights and freedoms. The greatest causalities have been civil society groups, activists, opposition political parties and students’ unions - especially those not singing government praise-songs: the students, trade unions and even religious groups perceived to be supporting the cause of political opponents of the ruling party. As James Bovard observes, “the history of political thought is the history of the moral evaluation of political power.”^[6] But the shift in political orientation in Zambia has brought with it new and difficult times as far as political tolerance and citizens’ effective participation in democratic processes are concerned, particularly for those outside the corridors of political power.

Although Zambia is a signatory to the African Union Charter on Democracy, Elections and Governance, which under Article 3 (11) envisions “strengthened political pluralism and recognising the role, rights and responsibility of legally constituted political parties, including opposition political parties,”^[7] Zambia’s practice under the government that took office in 2011 has been to envisage a country under a one-party state where all voices must sing the praises of the ruling party and its leadership. To do so earns one freedom and rights, including the right to economic opportunities, government jobs, business contracts and appointments to parastatal bodies. This is evidenced in the current ruling party’s constitution, which under Article 3 states, “the Party shall ensure that all the public institutions, State-owned enterprises and popular mass and similar organizations are led by persons who are members of the Party and who are uncompromisingly committed to achievements of the Party.”^[8]

This provision has promoted discrimination, oppression, suppression, intimidation, harassment and the abuse of those who do not attest to the ideologies and beliefs of the ruling party. Those perceived to be against the party are accused of being members of the largest opposition party and hence must not enjoy the rights and freedoms associated with or guaranteed in the Constitution of Zambia, which should be enjoyed by all citizens regardless of party affiliations. It goes against Zambia’s Constitution, which promotes multi-partyism. It undermines the ‘One Zambia, One Nation’ national motto the country has espoused since independence.

The impacts on civil society

Zambia, for a long time, was known as a model of peace, stability and tolerance in Southern Africa. It was one of the early few countries in the region to have fully embraced the wave of multi-partyism that swept Africa and the world in the 1990s. As a result of this democratic development, Zambia saw civil society organisations (CSOs) mushrooming to try to build, consolidate and defend the new political dispensation. However, events in the aftermath of the most recent general elections, in 2016, saw the government suspending certain human rights and freedoms of citizens, leading to the mass arrests of opposition sympathisers under the guise of threatened State of Emergency powers. This was when President Edgar Chagwa Lungu invoked Article 31 of the Constitution, undermining and restricting civil liberties and placing citizens under surveillance.

Despite growing difficulties, CSOs continued to play their role of ensuring an accountable government, in policy design and formulation, and in law-making processes, including by promoting issues of accountability and transparency in the management of public affairs. Further, CSOs continued to demand constitutionalism, the rule of law and impartial courts and law enforcement agencies. The NGO (non-governmental organisation) Policy was drafted following a constructive dialogue between the state and civil society actors, and an NGO Conduct of Conduct was developed too.

These are not the only recent activities of CSOs that have achieved impact and delivered results effectively. Others include the campaign for a people-driven constitution between 2011 to 2016, the petition to change the 2009 NGOs Act between 2012 and 2014, and the recent discussions on the potential withdrawal of Zambia from the International Criminal Court, where CSOs created widespread public awareness of the consequences of withdrawal. This ultimately led to the proposed withdrawal being rejected in a ‘mini referendum’. CSOs have continued to play an active role in constitutional reform processes and in preparing planning and budgeting policies. At provincial and district level, a number of CSOs sit on provincial and district development coordinating committees (PDCCs/DDCCs), contributing to local development efforts. These committees are in line with a devolved system of government that is partially being practised in Zambia and they try to bring development design, implementation, evaluation and monitoring closer to the people. They exist in all provinces and districts and draw representation from government, the private sector and CSOs. In some instances, this interaction has helped improve relations between the state and civil society actors.

Notwithstanding these efforts, there is rising statism in Zambia. There is growing belief that “government is inherently superior to the citizenry”^[9] and freedoms and rights do not inherently belong to citizens but are a gift from the government. This has raised a notion that freedom comes from the government to the people and therefore government has the right to take away that freedom at its pleasure. What has been happening is the belief that ‘lives are made of up choices’ is being defeated because the Zambian government is able to confiscate, nullify or decimate the choices that citizens can make, something that effectively confiscates part of these citizens’ lives. As Bovard opines, “If freedom is a gift from the government to the people, then government can take freedom away at its pleasure.^”[10]

Because of this, the state of civil society in Zambia today is largely that of a weak, malnourished and cowardly sector that only hesitantly holds the government to account. This situation has been exacerbated by a limited and dwindling resource base from donors to engage in sustained advocacy, lobbying and engagement with state powers, or indeed to litigate, which is also hard because of exorbitant legal costs. As Bovard further observes, “every increase in the cost of achieving justice from the State is a de facto subsidy for government oppression. The higher the cost of legal self-defense, the more likely that government agencies will abuse their power... the dilatoriness of the legal proceedings, and their exorbitant cost, or the want of an easily accessible court, work greater and far more frequent injustice than the formal denial of man’s due rights.”^[11] With the fear of being arrested, harassed or intimidated by the government using archaic laws such as the Public Order Act (1955) and the Penal Code (1938), coupled with high legal fees in the face of limited financial resources, many leaders of CSOs, trade unions, students’ unions and opposition parties have moved into ‘safe waters’ that are unlikely to land them in trouble with the authorities. This has resulted in the emergence of what could be called ‘nice lads and ladies’ in the civil society movement in general, whose role is now to work closely with the government of the day by issuing commendations and recommendations in response to government statements and activities, subtly fulfilling the ruling party’s desire to have all mass movements in the country led by party members.

This is a way of survival for many CSOs: outside those that focus principally on service delivery, for the rest it is the survival of the fittest, cleverest or the most patriotic to the government of the day. Therefore, the current state of the civil society movement in Zambia, if not salvaged, threatens the well-being of democracy and human rights in the country, and ultimately the well-being of Zambia’s citizens. The steady rise of the state, exorbitant legal costs, the pending introduction of cyber laws to monitor the use of social media and the demise of citizen activism due to limited resources means individual citizens cannot effectively challenge the violation or enjoy the exercise of their rights and freedoms. The remedies they can pursue depend on the will of the aggressor state and restrictions continue to increase, and this will, if it has not already, put citizens’ rights and freedoms in shackles. Just reimagine a form of democracy in which the silencing of critical voices is the ideal - and that the SADC region adopts such type of a democracy! This will mean the death of accountability, transparency, the rule of law, constitutionalism and integrity, which make up good governance in the region.