ARTICLE 12
Urgently needed governance reforms: Let’s reform our governance system before it’s too late
OUR country is dangerously spiralling out of control and urgently needs to be brought back on track. Events surrounding the just ended elections have led to concerns about degenerating into a failed state – raising questions about adherence to the rule of law and whether it’s now rule by might. If there’s one take away from these developments, therefore, it’s the urgent need for governance reforms and restoring confidence in state institutions.
In its preliminary report on the elections, the SADC Election Observer Mission recommended changes regarding appointment of electoral commissioners, regulation and funding of political parties and urged timely electoral reforms. But these are issues even President Hichilema knew before ascending to power.
We can’t afford every election cycle threatening our national survival. Let’s for once put the nation’s interests first and deal with the underlying issues. Today we may be on the right side of the political divide but our children may not be so fortunate. We owe it to them to create a fair, democratic and just society.
I reflect on some of the urgently needed governance reforms.
Reforming the Judiciary, DPP’s Chambers and the police
In opposition, President Hichilema frequently questioned the independence of the judiciary and the Director of Public Prosecutions (DPP), professionalism of the police and exercise of the DPP’s power to enter a nolle prosequi.
Accused persons would be kept in detention, only to be discharged through a nolle. In particular, DPP Lillian Siyunyi was criticised after Hakainde’s treason trial was discontinued through a nolle with Professor Muna Ndulo cautioning her against ‘being a willing tool of oppression’, noting that the DPP was the ‘gate keeper to the temple of justice’. Ndulo further deplored what he termed ‘reckless framing of charges to put perceived enemies of the state out of circulation’.
As Justice Margaret Munalula noted in her dissenting judgement in Milford Maambo and 2 Others v The People, the emerging trend is for the DPP to furnish reasons for entering a nolle and for this power to be challengeable like Kenya and other countries have done. A nolle prosequi, as Professor Munalula observed, indefinitely renders an accused a suspect.
The ongoing Judicial Commission of Inquiry into Criminal, Political Interference and Corruption in South Africa (the Madlanga Commission of Inquiry) – inquiring into abuse of the criminal justice system including political interfence in policing, has shown how investigative and prosecutorial powers can be abused. Andrea Johnson, the head of the Investigating Directorate Against Corruption (IDAC) – a specialised unit within the South African National Prosecuting Authority tasked with investigating high level and complex corruption cases, had to resign after her office was shown to have deleberately targetted some individuals for prosecution.
Yet, apart from replacing Siyunyi, it’s doubtful that our National Prosecutions Authority (NPA) has been ‘fumigated’. Besides, we have seen individuals being charged with serious offences like espionage, under circumstances that make you wonder, only for the charges to be dropped later.
And rather than just lamenting the failure to accord suspects police bond, why not make it a punishable offence to detain someone beyond the prescribed 48 hours? Meanwhile, nonebailable offences have been increased and we see accused persons being detained indefinately – ‘to help with investigations’ – without any reprimand or sanction from the leadership.
Likewise, considering how UPND, its allies and the Commission of Inquiry into Votting Patterns criticised the courts – particulary the Constitutional Court, if Kenyan style reforms where judges had to reapply and be vetted were too radical, at the very least, recruitment, promotion and removal of judges ought to be opened up to public scrutiny.
The Commission on Voting Patterns recommended comprehensive review of the Constitutional Court’s purpose, functions, composition and operational and organisational structure, taking into account concerns expressed by the public after the 2016 general elections. Commenting on the Constitutional Court’s decision to halt the 2016 presidential petititon, for instance, Professor Ndulo said it represented an ‘unbelievable display of mediocrity’ and that it ‘…would pass as the worst spectacle of judicial rascality’.
Equally, our police service has only seen personnel changes and adhoc measures like occassionally suspending police checkpoints.
Electral reforms, freeing state media and creating a culture of
transparency and accountability
Despite that, President Hichilema also often questioned the independence of the Electoral Commission of Zambia (ECZ) and acknowledged the need for commissioners to be nominated by stakeholders, the president remains the sole appointing authority. If anything, this is the most pressing reform.
Further, rather than adopt zero tolerance to electral corruption and consequently repeal section 97 of the Electral Process Act as recommended by the Commission of Inquiry into Votting Patterns, the status quo remains. Under this provision, a parliamentary seat can only be nullified if malpractices affect the majority of voters. But how can you have a clean election when the law permits malpractices provided they don’t influence majority voters? And as those petitioning will soon realise, this provision makes it almost impossible to overturn a parliamentary election.
Moreover, despite being directed by the Constitutional Court, the administration could not even enact a law regulating political parties in line with article 60(4) which conteplates legislation prescribing a political parties fund, party accounts, funding sources and maximum campaign expenditure. A government beholded to some financier can hardly deliver to its people. And when shall public media be freed to cover the opposition?
Also, contrary to South Africa again where transparency and accountability are evident – where inquiries even into ‘security’ matters are held publicly and televised, secrecy remains our modus operandi. The aforementioned Madlanga Commission, for example, is publicly interrogating ‘sensitive’ matters like police operations, criminality in the police service including extra-judicial killings and connivance with drug gangs and conduct of the police command.
That would be taboo in Zambia. We see people being dismissed and no reasons are given; the public has to speculate.
Repealing dictatorial laws
Whereas defamation of the president was dispensed with, not only does defamation remain a criminal offence but sedition, which forbids causing disaffection against government and by extension the president, remains in force. If defamation of the president is incompatible with democracy, how can sedition be compatible? And if the goal was to deepen democracy, why not repeal all anti-democractic laws. In essence, sedition forbids criticising the leadership. What then remains of the multi-party system?
Besides, instituting prosecution for defamation has largelly been the preserve of the few – mostly those close to the ruling elite. Even opposition leader Hakainde could not prosecute former Religious Affairs Minister Godfridah Sumaili. This law equally needs to go. If defamed, seek compesation through civil action.
The Hichilema administration further backtracked on repealing Cyber laws and drafted a Public Gatherings Bill that retained the unconstitutional licensing regime. Professor Ndulo has in fact argued against the very idea of a Public Order Act.
These governance reforms are overdue
It’s puzzling that UPND would complain about these matters but do nothing when handed power and, in fact, reinforce some. It’s time weaknesses in our electral process, especially, were settled once and for all.
The author is a lawyer and a citizen who wants the best for our country.
For comments and feedback: chris.mapani@gmail .com
