Legal autocratisation ahead of the 2021 Zambian elections

ABSTRACT

Zambia experienced an episode of distinct democratic backsliding between 2011 and 2021. Autocratisation resulted from the deliberate use of legal mechanisms to enhance executive power. Tracing key legal changes through legal documents, press reports and informant interviews, the article examines this recent episode of autocratisation as a consequence of a poorly institutionalised party system in a fledgling and unconsolidated presidential democracy. We show that under PF rule, autocratisation resulted from the deliberate use of legal mechanisms to enhance executive power, stifle the opposition, muzzle the press and undermine civil society forces. The election of opposition candidate Hakainde Hichilema in August 2021 may have ended this episode of backsliding as for the third time in the country´s history, power changed peacefully through the ballot box. But, to what extent the 2021 elections will move Zambia away from this authoritarian trend is uncertain as the state of the country’s political institutions, hereunder a poorly institutionalised party system in an unconsolidated presidential democracy, may leave it vulnerable to further episodes of backsliding. The main contribution of this paper is the documentation of the role of lawfare in processes of autocratisation, and how integral it has been to the decline of democracy in Zambia.

KEYWORDS:

• Democratic backsliding
• autocratisation
• electoral turnover
• civil society
• Zambia

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

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4 The election petition in the newly established Constitutional Court was thrown out on a technicality. Kaaba, “Adjudication of Presidential Election Disputes”.

5 Goldring and Wahman, “Democracy in Reverse.”

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7 Lürhmann and Lindberg, “A third wave of autocratisation is here” 11.

8 Rakner and van de Walle, “International Strategies.”

9 In a 2022 survey conducted by the Afrobarometer, 87% of Zambians surveyed agreed with the statement that ‘democracy is preferable to any other kind of government’. See Afrobarometer news release, accessed at: https://www.afrobarometer.org/articles/majority-of-zambians-are-satisfied-with-their-democracy-optimistic-about-its-future/

10 Bermeo, “On democratic backsliding”; Levitsky and Ziblatt, How Democracies Die; Hug and Ginsberg, How to Lose a Constitutional Democracy.

11 Bleck and van de Walle, Electoral Politics in Africa since 1990.

12 Dupuy et al., “Hands off my regime!”

13 Rakner, “Don’t Touch My Constitution!,” 97.

14 Popova, “Weaponizing the Law”; Gloppen, “Autocratic Lawfare”; Hug and Ginsberg, How to Lose a Constitutional Democracy.

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17 Mckie, “The politics of institutional choice.”

18 Arriola et al., “Paying to party”; Wahman, “Democratization and electoral turnovers.”

19 Mckie, “The politics of institutional choice.”; Dulani, “Democracy Movements as Bulwarks”; Reyntjens, “Respecting and circumventing presidential term limits.”

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21 Cheeseman, “Democratic backsliding in Zambia”; Gould, “Strong Bar, Weak State?”

22 Randall and Svåsand, “Party Institutionalization in New Democracies”; Wahman, “Democratization and electoral turnovers.”

23 Wahman, “Democratization and electoral turnovers.”

24 Banda, et al., Democracy and electoral politics in Zambia.

25 The Constitution Amendment Act of 2016 maintains the power of the president, retaining the role as head of state and commander in chief of the armed forces, granting the power to dissolve parliament, to appoint electoral commissioners, ministers of cabinet, the cabinet secretary and secretary to treasury, provincial permanent secretaries; to appoint and remove the attorney general; and to appoint the national director of public prosecutions, the chief justice and all other judges appointed to the Constitutional Court and other courts.

26 Hinfelaar et al., “Electoral turnovers and the disappointment”; Ndulo, “Zambia’s unfulfilled struggle for a new constitution.”

27 Sishuwa, “Surviving on Borrowed Power,” 21; Banda, et al., Democracy and electoral politics in Zambia.

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31 Simutanyi, “Manufactured One-Party Dominance and Its Collapse”; Burnell, “The Party System and Party Politics”; Arriola et al., “Paying to party.”

32 Opalo, Legislative development in Africa.

33 As MMD’s electoral dominance came into question, the number of party switches increased. Defections continued in the following elections as the Patriotic Front (PF) and the United Party for National Development (UPND) emerged as competitive parties. The number of party switches more than doubled by the 2016 election to 71 out of 432 MMD, PF, or UPND candidates. The jump in 2016 defections was driven, in part, by MMD’s implosion after it lost the presidency to PF in 2011 (see Arriola et al., “Paying to party”).

34 Arriola et al., “Paying to party”

35 Sishuwa Sishuwa. “Zambia’s 2016 elections: is a disputed outcome now inevitable?” African Arguments. 1 June 2016. https://africanarguments.org/2016/06/zambias-2016-elections-is-a-disputed-outcome-now-inevitable/ (accessed 30 June 2023)

36 Beardsworth, “From a ‘Regional Party’ to the gates of State House.”

37 Muvi Television,,“PF stance on POA disappoints UPND.” 11 May 2016. https://www.muvitv.com/2016/05/pf-govts-stance-on-poa-disappoints-upnd/ (accessed 30 June 2023)

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39 Staff reporters, “Sata not well, an absentee landlord”, The Post, 24 September 2014, 1; 26.

40 ZRA vs The Post, SCZ Judgement No. 18 of 2016.

41 Lusaka Times, “ZRA Turns Post off,” 21 June 2016. https://www.lusakatimes.com/2016/06/21/zra-shuts-down-post-newspapers/ (accessed 30 June 2023)

42 The Post vs ZRA Appeal Judgment No. 7 of 2016, 17; 24.

43 Natasha Sakala, “IBA cancels prime TV licence“, NewsDiggers, 10 April 2020, https://diggers.news/local/2020/04/09/iba-cancels-prime-tv-license/ (accessed 30 June 2023)

44 Ibid.

45 Yande Syampeyo,, “Siliya throws out Prime TV appeal”, Zambia Daily Mail, 24 April 2020, http://www.daily-mail.co.zm/siliya-throws-out-prime-tv-appeal/ (accessed 30 June 2023)

46 Ibid.

47 Sishuwa, “Surviving on Borrowed Power,” 471.

48 Rakner, “Don’t Touch My Constitution!,” 99.

49 Gould, “Strong Bar, Weak State?”; Sishuwa, ‘Surviving on Borrowed Power:.’

50 The Public Order Act, Chapter 113 of the Laws of Zambia, Section 5. Also available on http://www.parliament.gov.zm/sites/default/files/documents/acts/Public%20Order%20Act.pdf (accessed on 8 August 2020).

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54 Banda, et al., Democracy and electoral politics in Zambia.

55 Kaaba, “Adjudication of Presidential Election Disputes in Zambia”, 115.

56 Ibid, 116.

57 The Societies Act, Chapter 119 of the Laws of Zambia.

58 Cheeseman, ‘Democratic backsliding in Zambia’, Democracy in Africa, 16 May 2012.

59 Lusaka Times, “High Court overturns decision to deregister MMD.” 26 June 2012. https://www.lusakatimes.com/2012/06/26/high-court-overturns-decision-deregister-mmd-andeleke-appeal-supreme-court/ (accessed 30 June 2023)

60 Ibid.

61 Newsdiggers, “Lubinda says Constitution is a mess, as CSOs demand abolition of ConCourt,” 24 February 2018. https://diggers.news/local/2018/02/24/lubinda-says-constitution-is-a-mess-as-csos-demand-abolition-of-concourt/ (accessed 30 June 2023)

62 Sishuwa Sishuwa, “Why the Copperbelt remains Zambia’s factory of political change.” Comparing the Copperbelt, https://copperbelt.history.ox.ac.uk/2019/09/26/why-the-copperbelt-remains-zambias-factory-of-political-change-sishuwa-sishuwa/ (accessed 15 June 2023)

63 Interview with Christopher Mundia, NDC lawyer, Lusaka, 23 June 2020.

64 Chabala, “I have been reduced to a beggar, laments Kambwili,” Newsdiggers, 28 May 2020. https://diggers.news/local/2020/05/28/lungu-my-brother-have-mercy-ive-been-reduced-to-a-beggar-laments-kambwili/ (accessed 15 June 2023)

65 The Penal Code Act, Chapter 87 of the Laws of Zambia. Available at: http://www.parliament.gov.zm/sites/default/files/documents/acts/Penal%20Code%20Act.pdf (accessed on 8 August 2020).

66 Sishuwa Sishuwa. “The real reasons Zambia’s opposition leader was released from jail.” African Arguments, 19 September 2017. https://africanarguments.org/2017/09/the-real-reasons-zambia-opposition-leader-was-released-from-jail/ (accessed 30 June 2023)

67 Ibid.

68 The Public Order Act: Section 6, subsection 6.

69 Mbewe, “High Court declines to halt Chilubi poll,” Newsdiggers, 12 February 2020. https://diggers.news/courts/2020/02/12/high-court-declines-to-halt-chilubi-poll/ (accessed 30 June 2023).

70 Lusaka Times, “Zambia Police’s summoning of HH for distributing face masks will not be tolerated-UPND”, 19 July 2021. https://www.lusakatimes.com/2021/07/19/328753/ (accessed 30 June 2023)

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72 Sishuwa Sishuwa, “Step by inevitable step: Lungu’s strategic march to 2021 and beyond,” African Arguments, 4 December 2018. https://africanarguments.org/2018/12/zambia-2021-lungu-strategic-march (accessed 30 June 2023); J. Cotterill, “Zambia braced for tight election race ahead of IMF bailout talks”, Financial Times, 11 August 2021. (accessed 20 June 2023).

73 Sishuwa and Cheeseman, “Three Lessons for Africa from Zambia’s Landslide Opposition Victory,” African Arguments, 22 August 2021. https://africanarguments.org/2021/08/three-lessons-for-africa-from-zambia-landslide-opposition-victory/ (accessed, 30 June 2023).