INTRODUCTION: My purpose in discussing the Commission of Inquiry led by the Honourable Mr Justice Munalula Lisimba is to express my personal views on what I have perceived as frequent populist pronouncements by the Executive that may prove costly and unproductive and may even contribute to further alienation of many Zambians from their own country.
THE MIND OF THE PRESIDENT: it is important to understand the mind of the President who conjured up the idea of resolving election disputes through a Commission of Inquiry. The timing of the initial announcement is significant as it points to what motivated the President to establish the Commission.
On 15th August 2016, barely five days after the end of the 2016 elections, a horde of PF cadres descended on State House to give solidarity to and/or petition their President. President Edgar Lungu received them and, as part of his statement, criticised the “voting pattern of three provinces”.
He was to probe the “post-election violence” but made no reference to previous elections. He promised to say more the next day (16th August 2016) at a scheduled PF rally at Woodlands Stadium. That promise from the Steps of State House alarmed me as it carried what I thought was an unintended tribal innuendo. I therefore urgently wrote a statement to dissuade the President from repeating the statement which was likely to be beamed live to a wider audience.
Whether by coincidence or divine intervention, the President toned down at the Stadium and instead birthed the “Dundumwezi thank you” message! Still the “voting pattern” mantra was echoed and later he formally established the Commission. This is the mind of the President who established the Commission, himself a participant in the disputed election and the President of the PF, one of the main suspects in the violence and other electoral violations.
THE MIND OF THE CHAIRMAN: It is important to understand the mind of the Chairman of the Commission as he is the one to oversee the whole process and actualise the President’s Grand Scheme. It is easy to read the mind of the Hon Judge Munalula Lisimba because he appeared on Muvi TV’s Assignment programme live on Sunday 18th December 2016. The interview was titled “Investigating Electoral Violence – Is it Necessary?” I have summarised some pertinent snippets of the Judge’s interview, not exactly verbatim, but close to it:
‘He explained that the Terms of Reference are in two segments: the first segment is historical to establish the general outline of voting patterns prior to 2016, and find out who influenced the voting pattern. The second segment will identify specific incidents of violence before, during and after the 2016. The mandate of the Commission is to promote reconciliation in the nation but witnesses will not be summoned. We want to get the truth; we know there was violence but who caused it? Were there elements in the pattern of voting that influenced the voting? Did any group or organisation influence the people to vote in a certain way? For example some chiefs were openly involved. Why were these chiefs partisan? We shall find the reason for the voting pattern, what happened, who participated, who motivated the voters, who caused this negative trend. We are inviting all the 40 political parties to come forward to tell us why their members were involved, why their members were beaten’. Chairman Lisimba even gave an example of what they expected to hear from prospective witnesses, e.g. they should say “I was present when Mr B attacked Mr A”. The Judge then assured the public that the Police would be there in full force to protect witnesses!
This is the Mind of the Chairman, laid bare by himself. But without summoning witnesses how will the Commission get at the truth they require to cross-check evidence implicating those not attending the hearings? The leaders of some panga-wielding cadres will not come voluntarily. In fact the Leader of the PF, the one who established the Commission, is not a compellable witness so he cannot be compelled to give evidence even if the Chairman wanted to hear his side. How then will Judge Lisimba obtain his empirical evidence?
PUBLIC POLICY: I contend that the establishment of the Commission of Inquiry contradicts current public policy regarding electoral administration and resolution of electoral questions and/or disputes. President Lungu announced his Commission while petitions were in progress. To date some of these petitions are still undetermined, awaiting verdicts by the appropriate organs of state with requisite mandates. The grounds for petitioning the Courts are many and varied with remedies or sanctions provided therein. They include bribery, treating, corrupt acts, illegal practices, publishing false statements in respect of other candidates, undue influence on voters (which includes violence and intimidation), interference with public meetings and, more broadly, breach of the Electoral Process Act.
All these are on our statute books today, and are reinforced by the Amended Constitution that President Lungu assented to on 5th January 2016. Public Policy is always to be found in the Constitution and other published laws of the land.
One cannot be wrong if one observes the law and avoids manipulating it to suit one’s secret agenda. It is important to understand what our system of government provides for resolving electoral disputes, which ordinarily come once in five years. There is no vacuum.
The Electoral Process Act addresses the issue of electoral dispute better than the Lisimba Commission. This system covers, inter alia, campaigning, establishing of Conflict Resolution Committees in all Constituencies, even before arriving at the point of litigating.
No one is allowed to find out how people voted; it is unconstitutional and illegal.
In this regard the Electoral Process Act Number 35 of 2016 was promulgated and assented to by President Lungu on 6th June 2016. Under the Franchise Article 45 provides that “citizens are free to exercise their political rights and that elections shall be free from violence, intimidation and corruption”. Article 46 provides that “a citizen who has attained the age of eighteen years is free to register as a voter, and vote in an election BY SECRET BALLOT”. The Electoral Commission of Zambia is designated as the organ of State that conducts and administers elections throughout Zambia, subject to the law relating to Petitions.
The Lisimba Commission thus runs counter to Public Policy and was established prematurely and in bad faith. No one is allowed to find out how people voted; it is unconstitutional and illegal.
Further since the Commission will NOT summon anybody, what will happen if the key suspects do not volunteer to give evidence? How will the Commission obtain its empirical evidence through this Commission? And how will Judge Lisimba and his team ensure there is reconciliation by usurping the judicial functions of our courts that have continued to receive direct evidence of the various disputed elections?
CONCLUSION: I submit that the correct forum for electoral disputes or questions is already provided for in our laws (Constitution, Electoral Process Act and subsidiary regulations).
Commissions of Inquiry must be the exception rather than the rule in resolving electoral disputes. Let all outstanding petitions be concluded without let or hindrance. Imagine if the presidential ballot boxes for 2016 were opened and recounted live in full public view what truth would be found in Pandora’s Box! We may even find therein thousands of missing votes for President Edith Nawakwi, President Saviour Chishimba or even President Andiford Banda! It is a known fact that the votes of so-called small parties are fraudulently allocated to the so-called big parties in places where the small parties have no agents to challenge the poll (like the days when a frog used to stand but was unable to petition)!
The Lisimba Commission is a sheer waste of public funds and an abuse of the President’s discretionary power for establishing inquiries. He himself is conflicted but is NOT a compellable witness so he cannot be subpoenaed even if the Commission attempted to do so. He ought not to superintend over any inquiry into the disputed election in which he participated. Further he is the leader of the PF, a political party whose record of violence is in the public domain.
I say that the Lisimba Commission is a sham, an ill-advised wild goose chase that is but a conduit for further abuse of public funds. This Commission is a giant Chinese egg; it will not hatch. It must be disbanded!
A CONCERNED ZAMBIAN
[26TH December 2016]