No unity without justice: post-election arrests, detention and the Constitution
By
Professor Cephas Lumina
The government is fully entitled to probe cases of treason and those which genuinely pose a threat to national security, but serious allegations do not mean that the Constitution is suspended. The prolonged detention of opposition figures following the disputed 13 August election, the reports that opposition members have been denied access to their lawyers and families, and the delay in court appearances all raise profound concerns regarding liberty, due process and the rule of law — and could make it more difficult to achieve national reconciliation.
AT the core of the arrests which have taken place in the country after the election lies a simple question: at what point does legitimate investigation end and punishment without trial begin? If there is credible evidence of armed insurrection, illegal weapons, conspiracy or other serious offences, those responsible should be prosecuted without favour — but in accordance with the law. An arrest does not amount to a conviction, police suspicion is not proof in a judicial sense, and transferring someone to a maximum-security facility is not a substitute for a trial. The claim that “investigations are continuing” must not become an excuse for indefinite detention.
That is why the arrests both before and after the 13 August 2026 election demand scrutiny beyond partisan politics. Opposition politicians are no more exempt from criminal law than others; the question is whether the justice system remains within the bounds set by the Constitution when political tensions make those limits most important.
From the ballot box to the detention cell
The warning signs appeared before polling day. On 11 August, Tonse-Pamodzi Alliance spokesman and lawyer, George Chisanga, said security officers carried out a raid on his law office and detained him along with Japhen Mwakalombe and Sebastian Kopulande for several hours. However, no public reports indicated what the charges were. There was already a broad background of state security action: former intelligence chief and opposition figure, Xavier Chungu, had been arrested in May after a podcast interview and charged under the State Security Act, provisions on seditious practices, and the Zambia Security Intelligence Services Act.
After the 14 August “security operation” at a Kabulonga property linked to opposition presidential candidate Brian Mundubile — during which former cabinet minister Mutotwe Kafwaya was fatally shot — the stakes rose sharply. The police detained a large number of opposition politicians and associates and eventually announced treason charges against 18 people, including Mundubile; his running mate, Makebi Zulu; Chisanga; retired Anglican Bishop and opposition politician, Trevor Mwamba; Patrick Mwansa, the husband of the late President Edgar Lungu’s daughter, Tasila; and businessman Harry Valden Findlay.
The police say that there was a conspiracy to overthrow the Government by unlawful means, mentioning that weapons, ammunition and preparations for an armed insurrection had been involved. Although these are serious accusations, it is precisely because of their seriousness that constitutional protections become even more necessary. Mundubile and Zulu were formally charged at the end of August and transferred with others to the Mukobeko Maximum Security Correctional Facility. Earlier this month it was reported that the accused had not yet appeared in court on the treason charge.
Chisanga’s case is instructive. The High Court ordered the state to pay the costs arising from his lengthy detention before charge, although his habeas corpus application was overtaken by the treason charge. Tonse-Pamodzi Secretary-General, Celestin Mukandila, who was arrested on 20 August on charges relating to his identity and possession of a National Registration Card, obtained a High Court order requiring the state to produce him and explain why his detention should continue. The Human Rights Commission has also referred to scores of election-related detainees and urged police and prosecutors to charge them, grant bond where appropriate, or release them.
The problem extends beyond a small number of political figures. It concerns the rules by which the state may deprive any citizen of liberty when national security allegations are made in a bitterly contested political environment.
Constitutional rights do not end with arrest
Article 13 of the Constitution protects personal liberty. It permits arrest on reasonable suspicion of commission of an offence but requires anyone not released to be brought before a court “without undue delay.” Once liberty is taken away, the justification for continued detention must not remain solely with the arresting authority.
Article 18 guarantees a fair hearing within a reasonable time, the presumption of innocence, facilities to prepare a defence, and legal representation. Article 118 requires justice for all without discrimination and without delay. Taken together, these provisions mean that any continued detention must remain subject to the law, judicial scrutiny and fairness.
A common misstatement is that the Constitution establishes a general 48-hour rule; in fact, Article 13 states only that action must be taken “without undue delay.” The Criminal Procedure Code does provide for a 24-hour rule for many arrests without a warrant, but it excludes offences which are punishable by life imprisonment, and treason now carries a sentence of life imprisonment. But that exception cannot reasonably grant police unlimited powers of detention until investigations are complete. The Code itself repeatedly requires action without unnecessary delay and production of detained suspects before a competent court as soon as practicable. Most importantly, the Constitution remains supreme.
Ongoing investigations do not justify unchecked detention
Complex treason investigations may involve firearms, telephone records, financial trails, intelligence information, forensic evidence, multiple suspects and several witnesses. Such work takes time. But there is a crucial distinction between continuing an investigation and keeping someone in detention without meaningful judicial control.
Police investigations can continue after a suspect is brought before court. The court may examine whether detention is still necessary, whether there is a risk that the suspect will flee or that they will interfere with the witnesses or the evidence, and whether the investigators are acting diligently. Judicial oversight does not hinder the investigations; it gives them a constitutional basis.
The idea that unfinished investigations allow the police to renew their power to detain day after day is dangerous: it would make the arresting institution the continuing judge of its own custody, defeating the purpose of Article 13.
International law points the same way. Article 9 of the International Covenant on Civil and Political Rights, binding on Zambia, prohibits arbitrary detention and requires an arrested person to be brought promptly before a judge or other officer exercising judicial power. In its General Comment No. 35 on article 9, the UN Human Rights Committee makes it clear that arbitrariness extends beyond formal illegality: detention must also be reasonable, necessary and proportionate. It considers that 48 hours is generally sufficient to bring a person under judicial control, with longer periods requiring exceptional justification, and says that a prosecutor is not sufficiently independent to perform that function. Although it may be necessary to send a police docket to the National Prosecution Authority, that is not a substitute for bringing the accused person before court. The General Comment also stipulates that a detained accused must either be tried within a reasonable time or be released, and if detention continues, must be tried as expeditiously as possible.
Access to counsel is a right, not a favour
Reports that lawyers for Mundubile, Zulu and others have at times been denied access at Mukobeko are troubling and deserve a clear response from the Zambia Correctional Service. A lawyer is not just another visitor.
Section 33 of the Zambia Correctional Service Act, 2021 requires inmates to be given facilities to visit, communicate and consult with a legal adviser or legal aid provider without undue delay and in full confidentiality. The Legal Aid Act, 2021 reinforces this by requiring police, correctional officers, prosecutors and other law enforcement officials to inform detained persons of their right to legal representation or legal aid, and requiring police, correctional and other law enforcement officers to facilitate applications for legal aid.
These duties give practical effect to Article 18. A right to counsel that exists only on paper while authorities can prevent meaningful, confidential communication is of no real value. In a
case involving treason and carrying the possibility of a sentence of life imprisonment, effective access to legal representation is indispensable.
The African Commission on Human and Peoples’ Right’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa also underscore the importance of prompt access to a lawyer and adequate opportunities for detained persons to consult counsel without delay, interception or censorship and in full confidentiality. They describe private consultation and the confidential exchange of instructions with counsel as fundamental to preparing a defence. While necessary restrictions or supervision may apply to family visits for the administration of justice or institutional security, the Principles do not treat such concerns as a general justification for denying an accused person access to a lawyer.
Families, dignity and isolation
Restrictions on family access also require a serious but measured response. Correctional facilities may regulate visits for legitimate security and administrative reasons, but lawful detention does not extinguish human dignity or permit arbitrary isolation.
The Zambia Correctional Service Act is informed by the UN Standard Minimum Rules for the Treatment of Prisoners — the Nelson Mandela Rules — which recognise that prisoners retain fundamental rights except for restrictions necessarily flowing from lawful incarceration. Rule 58 recognises regular communication with family and friends, subject to necessary supervision, while Rule 61 protects access to and confidential consultation with legal advisers.
In Zegveld and Ephrem v Eritrea (2003), the African Commission found violations of the African Charter on Human and Peoples’ Rights where former government officials detained on national security grounds were held without charge or access to a court and ordered their immediate release. The detainees had also been denied access to lawyers and families, illustrating the risks of prolonged incommunicado detention.
Not every restriction on family visits is unlawful, but restrictions require legitimate, proportionate reasons. When delayed court appearances, restricted lawyer access and restricted family contact occur together, concerns about arbitrary or incommunicado detention become more serious.
Treason does not create a constitutional black hole
Our case law recognises that serious allegations do not remove the constitutional safeguards. In Parekh v The People (1995), the Supreme Court held that where a trial is unreasonably delayed through no fault or stratagem of the accused, the arrested person must be set free on what it called “constitutional bail.” That constitutional bail overrides prohibitions in lesser laws, so Article 13(3) applies to any case where there has been an unreasonable delay, regardless of the nature of the charge.
The Constitution is put most severely to the test, not by minor offences in peaceful periods, but when the state declares a person to be dangerous or a threat to national survival. The courts in other countries in the region have also upheld this principle. In Okello v Uganda (2012), the Ugandan High Court granted bail to a treason accused who had spent more than 11 months on remand. While recognising the gravity of treason and the need for caution when granting bail, the court held that the guiding consideration was whether release would prejudice the pending trial, taking account also of the accused’s presumption of innocence and right to a fair and speedy trial. In Barihaihi and Another v Director of Public Prosecutions (2019), the Court held that leaving accused persons facing treason charges for nearly a decade without bringing them to trial constituted an abuse of court process and violated their constitutional right to a fair and speedy hearing.
The lesson is not automatic release. Treason may justify stringent bail conditions, careful investigation and judicially authorised remand, but it does not justify constitutional limbo.
Police, prosecutors and courts must keep to their roles
Police investigate and make lawful arrests; prosecutors decide whether evidence can sustain a prosecution; courts determine guilt and independently oversee continuing detention. Those roles are complementary, not interchangeable.
The National Prosecution Authority’s published values include integrity, fairness, transparency, accountability and predictability. Article 180 of the Constitution requires the Director of Public Prosecutions to consider the public interest, administration of justice, integrity of the judicial system and prevention of abuse of legal process. The NPA must therefore ask whether evidence is sufficient, charges sustainable, continued detention justified and delay itself is undermining justice.
Courts also have a just as important duty. Habeas corpus and constitutional review must operate quickly if they are to make a difference. When a remedy reaches a person only after unlawful detention has already achieved its coercive or political objective, its effect is diminished. This is why the Chisanga and Mukandila cases demonstrate the necessity of timely judicial oversight.
The Human Rights Commission’s warning should be taken seriously
The Human Rights Commission has called on police and prosecutors to charge, grant bond to or release election-related detainees and raised concerns about prolonged detention and access to lawyers and families. That is not an endorsement of the opposition nor is it a judgment as to guilt; the concern is constitutional and procedural.
Rights matter most when they protect people the state considers dangerous, unpopular or politically inconvenient. A constitution that protects only those whom the government considers harmless is hardly a restraint on power.
The deeper danger is constitutional mistrust
The government denies the accusation of political persecution and states that serious offences against national security are under investigation. If there was a conspiracy aimed at overthrowing the government, the state has the obligation to prosecute it and to protect the Republic.
But political context cannot be wished away. When an opposition presidential candidate, his running mate and several prominent allies are arrested immediately after a fiercely contested election, charged with treason, sent to a maximum-security facility and not promptly subjected to open judicial scrutiny, many citizens will suspect that criminal law has become entangled with the electoral contest. That perception is dangerous whether it proves justified.
It encourages the belief that state institutions belong to election winners rather than to the Republic, turns legal disputes into political grievances and corrodes the trust that is necessary for reconciliation. Unity is not possible where people believe that constitutional protection depends on one’s political affiliation.
The motto “One Zambia, One Nation” must mean that the Constitution protects both the citizen who voted for the government and the citizen who campaigned for its removal. National unity does not demand that opposition politicians should have immunity; it rather requires the assurance that when such politicians are accused of serious crimes, they will receive the fair trial guaranteed to all people.
Let the courts test the state’s case
The way forward should not be controversial. If the state has credible evidence of treason, armed insurrection, unlawful possession of weapons or related offences, it should prosecute firmly and expeditiously — before the courts. The accused persons should be brought promptly before competent judicial authorities; the charges against them should be clearly stated; regular, confidential access to lawyers should be guaranteed; contact with their families should be allowed on reasonable terms provided that there are legitimate security requirements; and the courts should be permitted to decide whether continued detention is still necessary.
Where investigators need more time, investigations can continue under judicial scrutiny. Where evidence is insufficient, the detainees should be released; where the charges are properly laid, the trials should begin without unnecessary delay.
The country’s democracy will not be judged only by who won on 13 August. It will also be judged by the treatment given to those who lost, and by whether the state institutions demonstrated that political defeat did not place anyone beyond the Constitution’s protection.
A democracy does not prove its strength by showing how easily it can arrest its opponents. It proves its strength by ensuring that even a person accused of treason remains protected by law and judged by an independent court.
After a contested election, due process is not an obstacle to national unity. It is what makes unity believable.
There can be no durable unity without justice — and no justice worthy of the name without constitutional restraint.
