By Nicholas Bwalya
In Zambia the difference between “persecution” and “prosecution” is getting more obscured as the political landscape becomes more diverse. Depending on which side of government one is on, one cannot differentiate prosecution from persecution.
Wikipedia defines persecution as ‘the the systematic mistreatment of an individual or group by another individual or group’ It adds that the most common forms are religious persecution, ethnic persecution and political persecution, though there is naturally some overlap between these terms. The inflicting of suffering, harassment, isolation, imprisonment, fear, or pain are all factors that may establish persecution’. It also defines ‘prosecution’ as the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law.
The cycle of prosecution or persecution of people perceived, rightly or wrongly, to be against the establishment, especially the government, is as old as this land now called Zambia.
During the time when colonialists were colonising this territory, many Africans were both persecuted and prosecuted. They were prosecuted for disobeying unjust laws set up by the colonial masters. On the other hand they were persecuted for resisting to be governed by outsiders. Most freedom fighters today at one time in their lives were either jailed, fugitive or came into conflict with the ruling colonial government. And subsequent governments have also practised different forms of prosecution or persecution of their rivals.
During the one party rule of Dr Kenneth Kaunda, prosecution or persecution of his perceived adversaries was a norm rather than an exception. Many citizens who dared criticise the UNIP rule were brutalised through various means. This list includes former president late Fredrick Chiluba and Brigadier General Godfrey Miyanda among others. The latter was at one time even” blacklisted” from dealing with any government institution or going into town. Such was the persecution of perceived enemies of the government, which characterised the UNIPs almost three decade rule. It is, however, important to note that during Dr Kaunda’s rule, Zambia was under a state of emergency, which allowed the government to detain any person without trial. Those who were prosecuted through the courts were counted as “lucky ones”.
After the change of government in 1991, the new MMD government led by Chiluba also devised ways of prosecuting or persecuting its perceived foes. And Dr Kaunda was among the victims. The former president suffered prosecutions or persecutions under the MMD rule. Apart from being detained on Christmas Day for trumped up charges, he was also declared stateless by the High Court. Dr Kaunda fought countless court charges, some of which continue to haunt him till today through the legal bills he accumulated. The inclusion of a parentage clause in the 1996 Constitution (current constitution) was specifically meant to bar him from contesting for the presidency.
One would therefore ask, was Dr Kaunda being prosecuted or persecuted during the MMD rule?
When in 2011, Levy Mwanawasa became president, he launched a serious crusade against corruption. He succumbed to public pressure to remove his predecessors (Dr Chiluba’s) immunity so that he could be prosecuted for corruption. How this case ended is already in public domain. But President Mwanawasa also detained then opposition leader Michael Sata for theft of a government motor vehicle. Since this charge was unbailable, Sata spent over three months in remand prison at Kamwala before he was acquitted. At the time he was arrested Sata was already a thorn in the MMD government of Levy Mwanawasa.
Again one would ask, was Sata being prosecuted or persecuted by the MMD government?
During the rule of Rupiah Banda, when defence Minister George Mpombo resigned from government, everything remained normal until he began to criticise Banda’s regime. The law enforcement organs began to pursue him. Within a few months after his resignation he was charged with uttering fake documents for one of the imprests he had retired whilst he was defence minister. Today Mpombo is a convict and will need to prove otherwise with his appeal to the High Court. Rupiah’s government also suspended the then opposition dominated Lusaka City Council, accusing the councillors of illegally allocating land to themselves. A committee was allegedly constituted by then Local Government Minister Brian Chituwo to probe the councillors. By the time the MMD lost power in 2011, no report was made public about the matter.
Similarly, since coming into power in 2011, president Sata’s crusade against corruption has seen a number of former leaders in the Rupiah government being arrested. Rupiah Banda himself leads the group. Some former leaders such as Dora Siliya have publicly complained of persecution by the PF government. But the PF government has denied these accusations.
What is however clear is that there is an element of selective justice in the application of the law. For instance, when accusations of corruptions were labelled against Justice Minister Wynter Kabimba and then Defence Minister Geoffrey Mwamba, the president urged the Anti Corruption Commission (ACC) to seek his approval before investigating them. The ACC then disclosed that the two ministers had been cleared of all charges. But after the resignation of GBM from cabinet these charges have resurfaced. GBM is now facing eight counts of corruption, abuse of authority and making false documents.
Is GBM being prosecuted or persecuted for resigning from government or was he being shielded from these charges because he was a minister? What about other ministers still serving in government, will their fate be similar to GBM’s should they quit cabinet? Or shall we have to wait for the next government after PF to revisit corruption charges against current ministers? Can this scenario also explain why some opposition members have crossed over to the ruling party so that their alleged offences are protected? These and many questions are begging answers.
What is apparent from all the administrations that have served this country, including the PF, is that law enforcement agencies are swift to pounce on members from opposition or those perceived to be against them. If for instance dismissed deputy ministers Ronlad Chitotela and Rodgers Mwewa were from the opposition, their cases would be before the courts of law by now. But because they are MPs from the ruling party, the wheels of ‘justice’ are likely to move very slowly against them. Or probably their cases may never come for prosecution till another government is in place. These are the realities that have unfortunately dogged our democracy, rule of law and good governance in general.
It is undeniable that the rule of law in Zambia has lamentably failed to gain ground, mainly because institutions that are entrusted with promoting democracy are always under compromise from the politicians in power. Institutions like the police, ACC, Drug Enforcement Commission, Office of the Director of Public Prosecutions, Office of the President, the judiciary, and parliament among others, cannot function independent of the ruling elite. Some of these institutions have been and continue to be used to pursue government opponents, real or imaginary.
As one observer noted: ”State machinery (institutions) are the greatest weapon the Zambian governments has used to either prosecute or persecute their opponents. Though it may seem like someone is being prosecuted by the courts, the motive is mainly persecution. Trumped up charges can be thrown at someone with the main aim of persecuting that person. They (ruling politicians) can take you to court knowing that after a lot of court appearances, the DPP will enter a nolle prosequi. The motive is simply to intimidate you, since they know that you will also incur legal bills. Even if you want to sue the state for wrongful imprisonment, it does not bother them because they know that it will take another five or more years. Moreover even when you win the case, it is the state that pays and not those in government who were persecuting you.”
Against this background, what is the solution to this apparent abuse of state institutions by sitting governments to prosecute or persecute opponents?
At the root of this problem is the country’s constitution, which give powers to the head of state to appoint all officers managing these institutions of democracy. As long as all officers leading these institutions remain political appointees, their allegiance will be to their master, in this case, the sitting Republican President. The principle of separation of powers, which is a vital ingredient to the rule of law, remains a pipe dream in Zambia.