JOINT STATEMENT ON:
THE STATE OF DEMOCRACY AND THE PLIGHT OF ZAMBIANS TODAY, UNITY OF PURPOSE OF THE OPPOSITION AND THE CONSTITUTIONAL COURT JUDGMENT OF 7TH DECEMBER 2018
ISSUED ON 16TH DECEMBER 2018
Thank you, fellow Zambians, for giving us this opportunity to address you at this very critical point in the History of our Country. Our discussion shall focus on three specific areas upon which we wish to draw the attention of the people of Zambia.
THE STATE OF DEMOCRACY AND THE PLIGHT OF ZAMBIANS TODAY
State of the Nation and the plight of the Zambian people
1. Ever since the dawn of the Third Republic in 1991, Zambia has been a bastion of democracy in Africa and beyond.
2. However, over the years following the death of President Michael Sata, may his soul rest in peace, in 2014, the democratic space, and with it the fortunes of our beloved country, has shrunk to the point where Zambia is all but a totalitarian Nation today.
3. While the opposition has borne the brunt of the declining democratic standards, the people of Zambia have suffered the biggest blow, with standards of living dropping to the pre Mwanawasa and pre HIPC completion levels, owing to mismanagement of the economy by an un-listening and self-centered PF Government which thrives on corruption and undemocratic rule to secure the personal interests of its leaders.
4. As a result, according to recent reports which are widely available to the public, poverty is widespread in Zambia, affecting 64 per cent of the total population and rising to 80 per cent in rural areas.
5. The cost of living is unbearably high with the Basic Needs Basket for a family of 5 standing at K5,575 as at March 2018, which is well beyond the reach of the majority of Zambians, while the cost of fuel and a bag of Millie Meal exceed that which an ordinary Zambian can sustain. On top of that, we are taxed and levied on everything including our own boreholes, while sources of income dwindle on a daily basis.
The state of Democracy
6. To add to the foregoing, Zambians who do not support the PF and are not seen to be supporting the PF are denied opportunities to trade in markets, bus stops and other trading places which should ordinarily be open for all Zambians to operate in.
7. The rule of law is highly compromised with corruption being the order of the day and those who dare speak out against it become instant enemies of the State who are thereafter abused and harassed using the Police and other wings of state authority.
8. Today civil liberties are non-existent with only those that support the ruling party enjoying the right to exercise their guaranteed freedoms and the Police being on hand to arrest anyone else as the abuse of the Public Order Act has now become the norm.
9. Political intolerance and violence has become the order of the day contrary to the spirit of peace and unity that Zambia is renowned for.
UNITY OF PURPOSE OF THE OPPOSITION
An alliance of like-minded Political Parties
10. It is against this background that representatives of the 10 under listed Political Parties have chosen to unite in purpose for the greater good of mother Zambia and all her people irrespective of artificial barriers such as political affiliation.
11. To this end, we have agreed to The 10 opposition political party’s agreed to work together on the following national issues:
(i) Restoration of the Rule of Law;
(ii) Restoration of fundamental human rights, liberties and freedoms such as freedom of association, assembly, movement, the right to peaceful demonstration, worship, conscience including individual’s right to freely the express themselves in speech, conduct, dress or howsoever otherwise. There must be an end to people being attacked for wearing party regalia or other clothing that symbolizes their political choices;
(iii) Bringing an end to Political Violence;
(iv) Restoration of Good Governance;
(v) Bringing an end to Corruption;
(vi) Bringing an end to the abuse of the Public Order Act;
(vii) Electoral Reforms through amendment to retrogressive laws and through the establishment of a truly a independent electoral commission capable of delivering free and fair elections;
(viii) Media Reforms;
(ix) Judicial Reforms and with them the release of political detainees prisoners, refugees and a general amnesty for political fugitives;
(x) Constitutional Reforms;
(xi) Citizens Participation in National development, especially women and youths; and
(xii) Most importantly employment creation for our People and poverty reduction alongside the need to drive accelerated economic development, fairness and equity in the distribution of resources.
12. In order to achieve our common goal of delivering a better Zambia for all, we have resolved to focus on the issues that unite us rather than issues that divide us.
13. We shall thus contribute our unique and considerable skills towards achieving our aforementioned common goal, knowing that at times like this when the very existence of Zambia as we know it is at risk, all noble and patriotic Zambians must cast aside that which divides them and stand together in unity for the greater good of mother Zambia.
14. Our overriding aim is to provide effective checks and balances to those holding public office and whose duty it is to serve the people of Zambia.
Unity in diversity
15. We must hasten to add that our agreement to work together does not entail that there is a merger of the 10 Political Parties, as that would in itself be contrary to the democratic tenets in which we believe.
16. Our collaboration is a clear demonstration that in a properly functioning democracy we can co-exist while being individual, vibrant political parties with our own ideologies.
17. Unlike the ruling party whose aim is to stifle any form of dissenting views, we believe that diversity is the lifeblood of democracy and so we have chosen to act in unity while at the same time recognizing our diversity.
18. It is our firm belief that in this way we can more effectively serve you our fellow citizens of this beautiful land called Zambia.
19. And so we invite you fellow Zambians in all your diversity to join us in unity today, tomorrow and for the foreseeable future IN DOING WHAT IS RIGHT FOR OUR COUNTRY.
CONSTITUTIONAL COURT JUDGMENT OF 7TH DECEMBER 2018
Brief Historical Background relating to tenure of office of the President
20. The democracy for which Zambia is renowned, and which today is under a threat never before seen, was hard fought for by our forerunners following the difficult years of one party rule.
21. From as long ago as 1973 when the Chona Constitutional Review Commission was commissioned, it was recognized that for Democracy to thrive, and in turn to avoid the creation of a dictatorship, one of the most important requirements was to limit the term of years that a person could be permitted to serve as President of our great Nation.
22. Through that Commission, the people spoke, although they were ignored, and as a result it was recommended that a President be permitted to serve no more than two consecutive five year terms. The result of ignoring the Chona recommendations was that Zambia ended up being under the rule of one President for a total of 27 years.
23. In 1991 we said no to that situation and brought back multi party politics. With it, the people reaffirmed their intent never to have any one person to serve as President for more than 10 years. In 2001, President Chiluba, may his soul rest in peace, tested the resolve of the people of Zambia without success as, in the true spirit of democracy, the people made it clear that there would be NO THIRD TERM for President Chiluba or anyone else. Our democracy thus thrived and became the pride of Africa.
24. Over the years various efforts have been made to put in place a time tested Constitution through various review methods. Among the most progressive of those was the Mun’gomba Commission which presented a draft Constitution that cast the will of the people in stone on the issue of tenure of office of the President.
25. Article 137 of the Mun’gomba draft stated in no uncertain terms that a Presidential term was to be 5 years and that “A PERSON WHO HAS TWICE BEEN ELECTED AS PRESIDENT IS NOT ELIGIBLE FOR ELECTION TO THAT OFFICE FOR A THIRD OR OTHER SUBSEQUENT TERM” thereby clearly reflecting the consistent will of the people of Zambia that NO ONE is entitled to hold the office of President for more than 10 years or indeed for more than two terms.
26. Needless to say, when in enacting the Constitutional Amendments of 2016, the PF chose to ignore the Mun’gomba draft constitution, and other, progressive provisions that had previously been suggested, in preference for the current Article 106 which was the subject of the Judgment of the Constitutional Court given on 7th December 2018 (“the Judgment”), a day which will go down as one of the darkest days in the History of our beloved Country.
Events leading up to the Judgment
27. The Nation will recall that shortly after the 2016 general election, Mr Edgar Lungu declared his intention to stand for reelection in 2021, that is to say, for a third term.
28. Promptly thereafter, 4 surrogate opposition parties led by Christian Democratic Party’s Dr. Dan Pule approached the Constitutional Court to endorse this intention and, together with the Attorney General of Zambia, put forward the unlikely argument that Mr Lungu was eligible to stand.
29. From the outset of the case, public perception was that its outcome was a foregone conclusion and this was confirmed on 2nd November 2017 during a speech made at Solwezi airport by Mr Lungu in which he said that he knew how the Judges of the Constitutional Court were intending to decide his eligibility and case. During the same occasion, Mr Lungu proceeded to threaten the Judges and the Nation that he would cause chaos in Zambia should the Constitutional Court rule against him.
30. In his classic style Mr Lungu abrogated the Constitution in so far as it guarantees the independence and impartiality of the Judiciary under Article 122, and the entire Judiciary has remained mute over that violation to date. Can citizens therefore be blamed for questioning the Judiciary as a whole and in particular the ability of the Constitutional Court to render a fair Judgment? We leave that to you, our fellow Zambians, to answer for yourselves.
31. Suffice to say that it was self-evident from the hordes of Jubilant PF cardres that went to Court on Friday 7th December 2018 that they knew the outcome of the case well in advance. Zambia Police were equally very cooperative on the day and conveniently forgot to apply the Public Order Act the way they do when other citizens wish to exercise their constitutionally guaranteed freedoms.
32. The eventual outcome of the Judgment did not therefore come as a surprise to many that dark Friday morning.
The Judgment and the approach used by the Court in arriving at it
33. Country men and women, whilst the outcome did not come as a surprise to many, the approach used by the Court to arrive at it has baffled many legal minds as the Court appeared to depart from the usual practice of Courts when adjudicating upon matters before them.
34. In Zambia, we have an adversarial system in which the Court is, or ought to be, neutral and leave the parties to put forward the questions they want determined and their arguments for and against those questions.
35. In the present case, the Court, in its final judgment completely rephrased the question for determination before it without affording the parties an opportunity to argue their cases from the perspective of the question as reframed by the Court, thereby placing them at a disadvantage.
36. What is more, had the Court allowed the parties to address it in the context of the rephrased question, they would have had a fair chance to put forward their arguments on what mischief parliament intended to remedy by specifically providing in black and white under Article 106(3) that A PERSON WHO HAS TWICE HELD OFFICE AS PRESIDENT IS NOT ELIGIBLE FOR ELECTION AS PRESIDENT.
37. At the end of the day, we, and the many Zambians we speak for, are left wondering why the Court took the path it did in a case of such magnitude and far reaching effect.
38. We are left wondering how it can be that Mr Lungu never held office from January 2015 to September 2016, despite executing all the functions of President and enjoying all the benefits and emoluments of that office. How can it be that he was President, but did not hold office as President at the same time, in seeming defiance of logic?
39. For a detailed review of the Judgment, we invite members of the public to carefully read the analysis as rendered by National Restoration Party president, Mr Elias Chipimo, on the 9th of December 2018, a copy of which is annexed hereto as an addendum, which analysis we the undersigned fully endorse and adopt on our own behalves and on behalf of the Political Parties we represent.
The effect of the Judgment on Zambia’s cherished Democracy
40. It is evident from the state of the law as it stands today that by enacting the Constitutional amendments of 2016, the PF put into motion a well-orchestrated plan to hijack Zambia’s much cherished democracy, using an amended Constitution which was designed with flaws and hidden agendas to suit the PF.
41. We thus ask Zambians to note the following key holdings contained in the Judgment:
(i) The decision by the Court not to accept the very clear wording of Article 106 (3) which states that a person who has twice held office as President is not eligible for election as President; and
(ii) The decision by the Court to instead rely on the provisions of Article 106 (6), (which relate to a Vice President that assumes office as President pursuant to Article 106(5)(a) or to a person that is elected to the office of President pursuant to Article 106(5)(b)) in order to arrive at the conclusion that Mr Lungu did not serve a qualifying term when he completed late President Sata’s term, may his soul rest in peace, and as such that Mr Lungu can serve more than two terms and more than 10 years in office.
42. From the above, it is evident that some of the far reaching effects and consequences of interpreting the Constitution in such a manner remain unaddressed.
43. For the first time in the History of Zambia, and contrary to the will of the people as demonstrated in the brief historical background above, a Court has legalized the holding by a person of a THIRD TERM.
44. Whether or not Mr Lungu’s initial term is deemed not have been a full, qualifying term under the Court’s interpretation of the law, the reality is that he served as President for the period of that term, was paid his emoluments as such and was sworn in again on 13th September 2016 for his current term. The judgment opens the door for him to do so again; for him to have a third stint in office, contrary to the resolve of Zambians in 1991 and 2001 when we said clearly NO THIRD TERM. The power is in our hands fellow citizens to say once again, but this time to Mr Lungu and the PF, NO THIRD TERM, we shall not allow it!
45. In the same spirit of the Zambian people, we shall not allow any single person to hold office for more than 10 years as this opens the door for despotism. Examples are plenty in Africa where the Constitution is manipulated so as to allow dictators to extend their rule and this is what we are seeing today. It will begin with a one year six month’s extension, then another extension of 2 years and 11 months, and so on until Mr Lungu is in office in perpetuity. Zambians must not allow this and the power is in our hands to SAY NO TO MORE THAN 10 YEAR’S RULE BY ANYONE!
46. As a matter of law and fact, by holding that a term of less than three years cannot be deemed a qualifying term for purposes of eligibility to stand for election as President, the Constitutional Court has created a dangerous precedent and a Constitutional crisis given the provisions of Article 81(4) to (9) of the Constitution which allow the President to, upon reference to (no other than) the Constitutional Court, dissolve parliament at any time during his tenure, resulting in the holding of fresh general elections within 90 days thereafter.
47. As things stand therefore, country men and women, and with the current perception around the Constitutional Court, there is a very real danger that before the lapse of this and any future term of office that Mr Lungu, or indeed any subsequent President, may hold he can perpetuate his stay in office by dissolving Parliament before the lapse of three years and will be eligible to stand again as the time already served will not qualify as a full term for purposes of disqualifying him from eligibility.
48. Fellow Zambians, the Constitutional crisis that now exists and is highlighted above is an assault on our democracy of the worst kind as it brings back the wamuyayaya formula that we Zambians rejected in 1991. We urge you to reject it once again!
49. It is clear that this situation is part of Mr Lungu’s elaborate plan to kill democracy in Zambia as he has said time and time again that he would sacrifice democracy.
50. Zambia is bigger than one man and his friends and, collectively as citizens, we must put a STOP to it.
Our message to the people
51. The time has come for all Zambians to unite against those that wish to kill our hard earned democracy and to protect our Constitution as we swore to do in the preamble to the same Constitution in which we committed to upholding the principles of democracy and good governance.
52. We collectively owe our beloved motherland and ourselves the right and duty to defend the Constitution and to resist or prevent any person from overthrowing, suspending or illegally abrogating the Constitution and our rights as enshrined therein.
53. It is not about Banda, Chanda, Chipimo, Hakainde, Kambwili, Lukuku, Milupi, Mulongoti, Siwale, Tembo or the opposition as a whole but about the people of Zambia, our children and their children.
Our call for action
54. We therefore ask you our fellow Zambians in the exercise of your right and duty to defend and protect the Constitution, our democracy and mother Zambia:
(i) To exercise your democratic right to demonstrate lawfully and peacefully for the re-amendment of the Constitution, for a return to the rule of law, for an end to the abuse of the Public Order Act, for the restoration of fundamental human rights, civil liberties and freedoms and for an end to the abuse of Institutions of State.
(ii) To rise up from your slumber and demand that a new, people driven Constitutional review process be undertaken by the Ministry of justice immediately to amend the current Constitution and remove any ambiguity so that no person can claim eligibility to stand for a THIRD TERM. Let us say in one voice NO THIRD TERM FOR MR LUNGU OR ANYONE ELSE.
(iii) To rise up in unity and demand THAT THE JUDICIARY BE ALLOWED TO OPERATE FREELY AND INDEPENDENTLY WITHOUT INTERFERANCE FROM ANYONE.
(iv) To demand for radical judicial reforms the Kenya and South Africa way and for the consequent ABOLITION OF THE CONSTITUTIONAL COURT.
(v) To join us in the fight against corruption;
(vi) To unite as one and to Act together NOW to protect your POWER, THE PEOPLE’S POWER, from being abused and taken away by the greedy and corrupt elements of our society;
(vii) To bring an end to politically motivated intolerance, an end to political violence, to restore the peace, love and unity for which Zambia is renowned and to restore the dignity of mother Zambia by speaking out against all that is wrong and un Zambian in our Country today, tomorrow and for the foreseeable future;
(viii) To say NO TO UNREALISTIC AND EXCESSIVE TAXES AND LEVIES on your already overstretched income; and, most importantly
(ix) To demand for accountability in the use of public wealth and the prudent and equitable distribution of resources to key areas of need including health, education, water and sanitation AND FOR THE LOWERING OF PRICES OF FUEL, MILLIE MEAL AND OTHER ESSENTIAL COMMODITIES.
55. We as opposition political parties open our doors to all Zambians, other like-minded political parties, including the multitudes of unhappy members of the PF and other organisations or associations to join us and together we do what is best for mother Zambia and one another.
56. Zambia calo cesu elo twa kwata fye cimo, and the time for action is now. We must use all lawful means available to protect our great Nation Zambia!
57. We commit ourselves to serving our motherland above ourselves.
58. We shall not relent in the battle to save our democracy and so we shall explore all local and international legal avenues to address the current situation obtaining in Zambia.
59. We remain united in purpose as the opposition.
ONE ZAMBIA, ONE NATION!!!!!