OPINION: By Pamela Towela Sambo, O’Brien Kaaba, and Felicity Kayumba Kalunga
ZAMBIA’s democracy is under attack and in recession. Varieties of Democracy (V- Dem), a global index that measures democracy, this year named Zambia among the top ten autocratising countries in the world. All the major good governance indicators are falling. Political violence and intolerance have become a national sport, freedoms of association and expression are being crushed, criticism of government is considered criminal, corruption and looting of public resources are largely state sanctioned.
While addressing a civil society round-table on democracy in August 2020, Archbishop Emeritus Telesphore Mpundu made an eloquent diagnosis of the state of democratic deficit in Zambia as follows: “It is no exaggeration to postulate that the political environment in our country today is so toxic that it does not permit free and democratic debate. Increasingly, the spaces for free expression and sharing of opinion have closed or are closing. Our journalists are continually harassed for reporting the truth and informing the public on the performance of our government.”
“Traditionally public media institutions have always been biased in favour of the government of the day, highlighting and exaggerating the achievements of the political establishment. At present that is all there is to it, namely government propaganda. This is likely to become worse as the legal time for campaigning approaches. Speaking the truth about corruption, demonstrating against government corruption has landed some of our human rights defenders in jail. Even opinions on social media criticizing the political establishment are treated as libel and defamation. Citizens expressing critical and therefore divergent opinions are arrested and often also detained for protracted periods without being tried in courts of law or granted bail.”
Against this grave and somber national democratic background, the Law Association of Zambia (LAZ) on 11 July 2020 elected its new Council, led by Mr. Abyudi J. Shonga, SC, as President. LAZ is established under section 3 of the Law Association of Zambia Act. The law clothes LAZ with several objectives, chiefly in relation to the rule of law and constitutionalism. The overarching objectives are found in section 4(a) and (l) of the LAZ Act: “to further the development of law as an instrument of social order and social justice and as an essential element in the growth of society,” and “to seek the advancement of the rule of law and of the rights and liberties of the individual.”
Meeting these objectives inevitably mandates LAZ to unequivocally condemn any and all threats to democracy and side with the victims of authoritarianism. The law requires LAZ to be biased only towards the law and justice in all circumstances. This mandate cannot be accomplished by a LAZ that is apologetic and subservient to or expends its resources to endear itself to political elites. LAZ should openly and categorically stand on the side of the law and constitutionalism and categorically denounce the ongoing assault on democracy. To act otherwise, using an alien ‘quiet diplomacy,’ is to dilute and betray its duty towards advancing law as an instrument of social justice; a dereliction of the duty to seek the advancement of the rule of law and human rights in Zambia and beyond.
The new LAZ Council seems to have departed from the approach of previous Councils in the manner of articulating concerns about the rule of law. Instead of taking clear and categorical positions to advance the rule of law and constitutionalism, the current LAZ Council seemingly prefers a lukewarm approach of behind-closed-door discussions with the public entities or persons who are at the heart of the current democratic backsliding.
For example, one of the first official public acts of the Shonga led LAZ Council was to pay a courtesy call on the republican President on 21 July 2020. At this meeting, the LAZ Council reminded the President that “our role is to speak out when the rule of law is being breached. We advised that we would prefer to talk to the Government when breaches occur so that we can be part of the solution.” This approach may appear neutral to those not well versed with the rule of law and constitutionalism; and indeed, the objectives to which LAZ is legally wedded. On the contrary, such pronouncements can be fatal in situations involving the breach of the rule of law and social injustice by the Government! The famous words of Archbishop Emeritus Desmond Tutu aptly describe this façade of neutrality: “If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”
In pursuit of its resolve to “be part of the solution,” the LAZ Council paid a courtesy call on the Electoral Commission of Zambia (ECZ) on 5th October 2020. This visit was made in the wake of controversial decisions recently made by ECZ in relation to the conduct of the 2021 general elections; which have thus far attracted three lawsuits against the Commission. There are presently two judicial review applications in the High Court and a constitutional challenge in the Constitutional Court, all of which cases are challenging the legality and constitutionality of ECZ actions. Prior to these cases being filed into the courts of law, LAZ was mute, and conducted no meaningful public education on any of the alleged illegal ECZ actions. Needless to mention, the ECZ is an important public institution, accountable to the law and the general public, more so in this run up to general elections. It must be in the interest of LAZ, and indeed the law, that the ECZ conducts its affairs within the strictest confines of written law.
After the rhetorical pleasantries restating the statutory mandate of LAZ to advance the rule of law under section 4 of the LAZ Act, the Shonga led Council proceeded to advise ECZ as follows:“ LAZ’s view is that if the process [of conducting elections] goes wrong, the country is set ablaze. Therefore, LAZ wants to ensure that the right thing is done. LAZ is concerned about good image and acceptability, as the integrity of the Commission will be judged by perceptions.” (Emphasis added).
It is laughable that LAZ considers “ensuring the right thing is done” revolves around concern for the good image of ECZ. Instead of focusing on the image of the ECZ as the right thing to do, LAZ should instead categorically advise the ECZ concerning its obligations under written electoral law and practice in thriving democracies; the breach of which will be responsible for any perceived damage to the integrity of ECZ. In any event, ECZ employs paid public relations officers whose job it is to market the good image of the Commission. The responsibility for LAZ begins and ends at ensuring that ECZ acts within the law.
Additional unfolding events show that earlier on 18 September 2020, LAZ issued a press statement expressing deep concern over “incidents of widespread violence perpetrated by political cadres in full view of the police.” The statement read in part, “we are dismayed to note that the police officers took no action to attempt to prevent the malicious damage that was being done.” The statement proceeded: “LAZ has since written to the Inspector General of Police over the matter, and a meeting has been confirmed, at which this issue will be discussed in detail, amongst other issues that have the capacity to undermine the rule of law.”
This statement was issued after a video went viral on social media, depicting suspected Patriotic Front cadres maliciously damaging a motor vehicle branded in the opposition United Party for National Development colours, in full view of the police. In keeping with its new modus operandi of holding private meetings with errant government institutions, LAZ decided to seek an appointment with the Inspector General of police to discuss the matter. The press statement did not make any reference to the constitutional obligations of the police which were being violated.
This LAZ approach is unsatisfactory and quite disappointing, coming from an institution which enjoys statutory mandate and monopoly over the provision of legal services. Both local and international communities surely deserve a much better service for their concession to give LAZ a monopoly over the provision of all legal services. Perhaps section 4 of the LAZ Act should now be amended to replace the rule of law and social justice mandate with the following inscription: “to visit institutions whose democratic credentials are being questioned and inform members accordingly.”
While these ‘quiet diplomatic’ gestures may be understood, and perhaps be commendable in certain isolated instances, such as when visiting the Chief Justice and the Minister of Justice; the visits are injurious when they serve the function of fettering LAZ’s statutory duty to advance the development of the law as an instrument of social justice and order. Anyone who is familiar with the role of law in societies – to advance the rule of law and democratization – would know that taking the quiet diplomatic approach adopted by the current LAZ Council, has never yielded any positive results anywhere in the world where democracy is under attack.
A quiet diplomacy approach instead plays in the hands of autocrats as it gives a veneer of legitimacy to the actions of rulers. This fact is also clear from the very development of the common law. Examples abound in the history of the evolution of the common law in England where the legal profession played a stronger and independent role. The legal profession has not only been the product of, but is also actually the guardian and protector of the common law. The common law as we know it today was not an act of benevolence, handed down by the rulers for the governance of the people. It was demanded by the people and the legal profession played a very key role in standing up to autocratic rulers in order to protect basic human rights. By standing up to power, the legal profession acted as a potent check on the autocracy of rulers.
We have sufficient great examples of the leading role of Bar associations in Africa in promoting the rule of law, democracy and human rights. The Law Society of Kenya has been very instrumental in holding the government accountable for the rule of law and promoting the human rights of individuals and the public interest. A recent example is the Petition to the High Court (Petition No. 120 OF 2020 (COVID 025)) in which the Law Society challenged the legality and constitutionality of the COVID-19 curfew order. In the meantime, our LAZ has remained silent even when confronted with the most recent extrajudicial killing of a 17-year-old boy by the police in the course of enforcing what Bowman Lusambo once aptly described as “the law within myself.”
In Malawi, the Law Society led the mass protest of lawyers clad in their robes and wigs with their national flags in hand, against what they termed “government interference in the judiciary for nullifying the heavily contested May 2020 elections.” These are, but just two perfect examples of what law societies do to fulfil their mandate of promoting the law as an instrument of social justice. Zambians still hold the fondest of memories on the important role that LAZ has played in the past. In this regard, many Zambians are already whispering that the modus operandi of the Shonga led Council is rather strange. Could we be witnessing the slow and painful death of LAZ? We hope not, for the sake of our beloved profession, the rule of law, constitutionalism and the bright future of the country.
In order to play its role objectively and passionately, the legal profession should be independent from government, not just in terms of the precepts of the law, but also in deed and word. In the words of Professor Koos Malan, “the legal profession should not be a mere state departmentalized adjunct to government – an obsequious servant of the state or dormant political elite.” Only under such circumstances can the profession effectively play its role and be a social force to reckon with. Only an independent professional body can avoid capture and exercise its mandate in a manner that fosters social justice. The importance of this independence and its interplay with the rule of law has also been asserted by the International Bar Association IBA) in a 1990 resolution: “the independence of the legal profession constitutes an essential guarantee for the promotion and protection of human rights…”
Under the ongoing democratic backsliding, it is imperative that LAZ asserts its independence both in word and deed. This can only be demonstrated by taking a firm, clear, unequivocal and publicly ascertainable stand against the status quo. Continuing with the current approach of closed-door meetings as the main way of claiming to realise its objectives of advancing social justice and the rule of law is not only going to be ineffective but may in the long run damage the reputation and credibility of the Association. It does not work. It has not worked anywhere and will not work now, but simply play into the hands of autocracy. What works is standing up to authoritarianism. In the words of Dikgang Moseneke, retired Chief Justice of the South African Constitutional Court: “standing up to bullies does change the world. Doing nothing allows evil people to prosper.”
[The authors are legal practitioners, lecturers and researchers in the School of Law at the University of Zambia. The views expressed in this article, are, however, personal and may not reflect those of their institutional affiliations]