Countries at the Crossroads 2005 - Zambia

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Author

David J. Simon is lecturer in political science at Yale University.

In December 2001, Levy Mwanawasa became only the third president of Zambia in 37 years. He had defeated 11 rivals for the post but garnered just 29 percent of the vote – only two percentage points more than his nearest rival. With the resulting weak mandate in hand, Mwanawasa assumed control of a state plagued by corruption and inefficiency and of a country deeply mired in debt, rife with poverty, and facing a devastating AIDS crisis.

Both of Mwanawasa's predecessors, Kenneth Kaunda and Frederick Chiluba, often displayed authoritarian tendencies. Kaunda banned all political parties other than his own United National Independence Party (UNIP) for 17 years. Upon that ban's repeal, Chiluba and the newly created Movement for Multiparty Democracy (MMD) swept into office in a landmark general election in 1991. Despite his party's name, however, Chiluba's government often resembled his predecessor's. For example, Chiluba paved the way for his reelection with constitutional changes that prohibited Kaunda from standing on the dubious grounds of the latter's parentage. Toward the end of his second term, Chiluba aggressively – but unsuccessfully – pursued another constitutional change that would have overturned a prohibition on serving a third term in office.

Chiluba then hand-picked Mwanawasa to be his successor. Many expected Mwanawasa to stay true to Chiluba's illiberal democracy pattern. Although he had been a vice president early in Chiluba's tenure, Mwanawasa had not had a high political profile since he competed for the party presidency in 1995 and was said to have suffered physical and mental damage in a 1992 car accident.¹ A leading independent newspaper, the Post of Zambia, alleged the president-elect to be Chiluba's puppet-designate – "of Chiluba, by Chiluba, and for Chiluba."² Indeed, his electoral victory was primarily a result of the party infrastructure Chiluba bequeathed him and of the way in which his opportunistic opponents (most of whom had defected from the MMD either in opposition to Chiluba's third-term overtures or out of disappointment at not having been selected successor themselves) neatly split the remaining 71 percent of the votes, rather than any positive attribute ascribable to Mwanawasa.

Nonetheless, Mwanawasa had consistently sounded governance and anti-poverty themes in his campaign and continued to do so once in office. Most remarkably, Mwanawasa surprised many by targeting Chiluba in an anticorruption campaign. Although saddled with a petition challenging the validity of the 2001 election, Mwanawasa has frequently sought to transcend interparty tensions – including taking the unprecedented (and, to some parties, unwelcome) step of inviting some opposition parliamentarians into his cabinet.

Mwanawasa has not put the challenges facing either his rule or his agenda behind him. Indeed, the electoral petition – still under consideration after two and a half years – has revealed that Mwanawasa himself benefited from corrupt electoral practices during the 2001 campaign. High-profile anticorruption efforts have encountered more setbacks than even minor victories. On some fronts, Mwanawasa's programs resemble those of his predecessors. Pervasive – and not unwarranted – distrust of the state on the part of civil society poses yet another challenge to Mwanawasa's governance agenda. And debt, poverty, and AIDS remain unyielding, continuing to present perhaps the greatest challenges to the majority of the Zambian people and to the country itself.

Accountability and Public Voice – 3.85

The 2001 concurrent presidential, parliamentary, and local elections illustrate both the promise and the shortcomings of the electoral mechanism in Zambia. On one hand, voters had several options from which to choose. Election Day itself featured a high turnout relative to the previous general election (67 percent of registered voters) and peaceful behavior by all. The MMD carried a narrow plurality in parliament (converted to an outright majority in subsequent by-elections), which helped that body emerge from having been relegated to rubber-stamp status during most of the Kaunda and Chiluba years. On the other hand, logistical issues such as the late delivery of ballot boxes apparently prevented many who wished to vote from doing so, and the procedure of counting ballots lacked transparency in many instances.³ In winning, Mwanawasa earned the support of less than 30 percent of registered voters and barely 15 percent of eligible voters. Moreover, the campaign that preceded it was highly tainted: All major parties favored food and clothing giveaways as a campaign tool, the incumbent party exploited state resources and media to its advantage, and several like-minded candidates effectively canceled out one another's earned votes.⁴

Mwanawasa's small plurality and narrow victory primarily reflect the self-defeating proliferation of opposition contenders. Candidates such as Michael Sata (of the Patriotic Front) and Benjamin Mwila (Chiluba's uncle, of the Zambia Republican Party), who had been fixtures in Chiluba's cabinet for most of the preceding decade, failed to win a single constituency and frequently finished in the bottom three of all candidates outside the MMD's traditional strongholds. Anderson Mazoka of the second-place United Party for National Development (UPND) and Lt. General Christon Tembo of the Forum for Democracy and Development (FDD), in contrast, performed the strongest in areas outside the MMD strongholds. Accordingly, these parties may have represented true alternatives to the MMD (even though Tembo was himself a former vice president to Chiluba and a long-time cabinet member). That the UPND and FDD both performed most strongly in many of the same areas, however, illustrates their redundancy as political alternatives. It proved to be the political undoing for both of them, to the detriment of those voters who sought an end to MMD rule.

The election spawned numerous court challenges. Most significantly, Tembo, Miyanda, and Mazoka jointly filed a Supreme Court petition challenging the presidential result, citing (most prominently) widespread abuse of government resources. While the courts have tended to resolve lesser election petitions expeditiously (even, on a few occasions, overturning the result), the presidential petition remained tied up in court through September 2004. In the meantime, public testimony by former Chiluba officials (including Sata, as well as former minister of finance Katele Kalumba) has lent credence to the petitioners' claims: Kalumba, for example, testified that after release of 50 million kwacha (approximately $25,000) of indeterminate origin for campaign purposes in one province, some of the proceeds were devoted to buying off leading members of the opposition.⁵ Although Mwanawasa has been in no hurry to accelerate the pace of the trial, he has pledged to abide by the court's judgment.

The petition illustrates that campaign-related violations are not subject to redress until after the election and the violations' effects have taken place. The electoral commission lacks enforcement powers and resources. Moreover, campaign transgressions are specifically spelled out only in the electoral code of conduct – an essentially unenforceable administrative document. Furthermore, aside from prohibitions against the abuse of state resources, even that code has little to say about the origin, declaration, and extent of campaign finance. A recent study by the Sweden-based Institute for Democracy and Electoral Assistance (IDEA) found no evidence of any campaign finance regulation on the books in Zambia.⁶

Throughout the multiparty era, Zambian elections have been plagued by low voter participation.⁷ Turnout in the 2001 election stood at 67 percent of registered voters, which was almost 10 points higher than the 1996 level and over 20 points higher than that of the transitional 1991 election. However, for each election, barely half of the estimated population of eligible voters had registered. A cumbersome registration process, which must be undertaken anew prior to each national election (and therefore well before the presidential campaign even begins), is largely to blame. Poverty exacerbates the problem, as many poor Zambians find the time and monetary costs of going through the registration process prohibitive. Finally, politicians frequently fail to interact with the constituencies they represent, even to mobilize participation.

The executive – and the president in particular – historically has dominated the legislative branch. In the single-party era there was a premium on loyalty, which bound even back-benchers not to oppose (or even question) the president's initiatives. These norms have persisted into the multiparty era, bolstered by practices such as the presidential appointment of the speaker of parliament. The larger size of the opposition since 2001 has made for more vocal parliamentary opposition to Mwanawasa than his predecessors ever had to contend with. However, parliament remains underresourced and underinformed on many issues, preventing it from providing effective oversight of the executive branch.

Ideally, local government could make the Zambian state more accountable to its people. However, local councils generally have few resources at their disposal, so that basic services such as local road maintenance or garbage collection are beyond their means. That the vast majority of Zambians live without any connection to public utilities infrastructure may further undermine the potential of local government to serve a meaningful role in people's lives. Thus, the announcement in 2004 that local government elections would not be held upon the expiry of local councilors' three-year terms due to a lack of electoral funding seemed to upset few.

The controversies emanating from the 2001 election have made the government sensitive to the weaknesses of its electoral processes. With a view toward electoral reform, the government of Zambia commissioned an Electoral Reform Technical Committee (ERTC) in late 2003. After soliciting input from a wide range of governmental and nongovernmental actors, the ERTC proposed a wide-ranging set of reforms in 2004. The most radical (vis-a-vis the current system) include a recommendation that 40 additional parliamentary seats be allocated on the basis of a party list system and a call for run-offs in contests in which no candidate attains a majority of the votes.⁸ As of September 2004, neither the cabinet nor parliament had considered the recommendations.

Mwanawasa has also convened a Constitutional Review Commission (CRC) to consider constitutional changes beyond electoral reform. The CRC comprises both governmental and nongovernmental representatives. Many of the latter who were initially invited declined to join, perhaps wary of the 1996 precedent, in which a review commission's work was largely ignored in favor of the MMD's own proposals. Although the commission reportedly received 13,900 submissions,⁹ the major opposition parties refused to cooperate. Their most prominent concern is Mwanawasa's refusal to convene a constituent assembly – a constitutional convention of sorts, at which the ruling party would have less procedural control – to determine the final form of the new constitution. Civil society groups and opposition parties made similar demands on the MMD in 1995 and 1996, to no avail.

Evident in the CRC-constituent assembly controversy is the emerging power of civil society in Zambia, as well as the tensions it brings to the political sphere. In 2004, civil society groups met, organized, and agitated freely for a wide range of objectives. Some groups, such as Transparency International-Zambia, the Foundation for the Democratic Process, and the Catholic Centre for Justice, Development, and Peace, frequently and professionally scrutinize the government's activities. Civil society organizations regularly participated in the formulation of Zambia's Poverty Reduction Strategy Paper (PRSP), a medium-term economic planning tool required under the Heavily Indebted Poor Country (HIPC) debt relief initiative. They often did so at the invitation of the government, most notably at a National Summit on Poverty convened in October 2001. The most prominent civil society organizations have demonstrated a willingness to engage with the state while retaining an ability to remain independent and critical. The Societies Act requires nongovernmental organizations (NGOs) to register with the state, which retains the prerogative to revoke their registration at any time. In November 2003, for example, the Ministry of Home Affairs de-registered 198 organizations.¹⁰ Since the Chiluba era, MMD officials have frequently criticized NGOs for being partisan or for being beholden to foreign interests. Many governance-oriented NGOs are largely funded by grants from foreign donors seeking to promote democracy in Zambia.

Another sphere exhibiting conflicting tendencies is freedom of the media. Reversing decades of state monopoly, new opportunities for media freedom emerged throughout the Chiluba years. The widely read and internationally acclaimed Post of Zambia has been almost reflexively critical of the Chiluba and Mwanawasa governments. Independent radio stations and, more recently, independent television stations have appeared on the scene, developments that would have been unthinkable during the Kaunda years. Zambia now has multiple Internet service providers, although Internet usage remains highly concentrated in urban areas.

However, like its predecessor, the Mwanawasa regime has exhibited a tendency to undermine press freedom. A plan to convert the state-owned media into the public media – with greater independence from the state – faltered when the government decided to retain what amounts to editorial control of its television, radio, and newspaper outlets. In November 2003, the government banned a televised morning show (running on the government-owned and operated ZNBC) that featured a review of the day's newspaper headlines. The government also occasionally cracks down on the media it does not control directly. A recent analysis on investigative journalism in Zambia concluded that "libel laws have been used with such frequency that journalists are increasingly shunning stories which are likely to lead to costly litigation."¹¹ In June 2003, Masautso Phiri, editor of the independent Today, was threatened with arrest for reporting on an opposition parliamentarian's challenge to the appointment of a new vice president. In November 2003, the government banned the independent Omega television station, which was owned by a former Chiluba aide, allegedly for violating the terms of its license.¹² In early 2004, the government attempted to deport a British columnist for the Post for "insulting the president" in a column based on George Orwell's Animal Farm; the high court blocked and then overturned the deportation order.¹³ Under Section 53 of the penal code, the president retains the power to ban publications (a power Chiluba used in 1996 to ban an issue of the Post). The press has been banned from covering several recent events, including the ongoing presidential petition hearings and an October 2003 inter-party meeting.

Recommendations

• Presidential and parliamentary elections should require winners to receive a majority of votes cast, with a second-round run-off in the event that no candidate does so in the first round.
• Electoral reforms should provide for the continuous maintenance of voter registration rolls, guaranteed budgetary and operational independence for the electoral commission, and an electoral code of conduct featuring a mechanism for its independent enforcement.
• The constitutional revision process should accommodate the participation of the citizens of Zambia in both the design and enactment phases. Steps might include a constituent assembly (with well-defined responsibilities and limits) and/or a referendum on the passage of the final document.
• The revised constitution should enshrine protections for the freedom of the media and should repeal the president's power to ban publications under Section 53 of the penal code.

Civil Liberties – 4.57

At the highest level, the Mwanawasa regime has established a strong commitment to the protection of Zambians' civil liberties. The constitution provides for extensive protections for civil rights, including the rights of the accused. Zambia's shortcomings regarding civil liberties lie primarily at the local level, where constraints such as resources, cultural practice, and long-established patterns of behavior can serve to undermine the positive features.

Section 15 of the constitution provides that "No person shall be subjected to torture, or to inhuman or degrading punishment or other like treatment." During the Chiluba era reports of inhumane treatment were not uncommon. Under Mwanawasa, neither political imprisonment nor accusations of torture have been an issue. Nevertheless, the police are known to apply excessive force in detaining suspects. Governmental bodies such as the Human Rights Commission and the Police Public Complaints Commission Authority hold the power to investigate claims of such violations but lack enforcement powers.

The Zambian prison system is overcrowded, resulting in inhumane conditions as a matter of course.¹⁴ Health concerns abound, with high HIV/AIDS infection rates among the prison population, as well as elevated vulnerability to infectious diseases such as malaria, tuberculosis, and cholera.

Mwanawasa has taken a strong stance against the imposition of the death penalty, for which the constitution provides. He has pledged not to sign any orders of execution during his tenure in office,¹⁵ and he has commuted the death sentences of 60 prisoners since assuming office, including 22 who had been convicted of attempting to overthrow the Chiluba government in a 1997 coup attempt. In 2004, Mwanawasa released one of the alleged masterminds of the plot, Captain Jack Chiti, who was terminally ill at the time and died a few weeks later.¹⁶

The Mwanawasa era has not witnessed any major politically motivated assassinations. Mwanawasa's anticorruption efforts have targeted political figures, although the most prominent – Chiluba and associates – are former allies of the president rather than opponents. Moreover, the corruption charges on which such prosecution rests are generally credible and have been construed as politically motivated only by those subjected to them (or who might potentially be subjected to them in the future).

Crime in Zambia is very common, especially in urban areas. Police appear powerless to prevent car-jacking and violent home raids, which occasionally victimize well-known individuals. Beyond this, the state is generally able to provide protection from the infringement of liberties by non-state actors. The campaigns for the 2001 elections, as well as recent parliamentary by-election campaigns, witnessed flare-ups of partisan violence. However, even in 2001, incidents tended to be isolated rather than widespread. Future flare-ups remain a possibility.

People with disabilities are not included among the groups protected from discrimination under the constitution. As a result, the electoral code does not explicitly provide for the right of access to voting facilities for people with disabilities or for accommodations for deaf or blind people. Indeed, access and accommodations for people with disabilities in most cases do not exist.¹⁷ In addition, the Electoral Act states that no person "adjudged or otherwise declared to be of unsound mind" can register to vote, a clause that could be used to disenfranchise people with mental disabilities. Zambia's Persons with Disabilities Act (1996) does provide protections for people with disabilities against discrimination in employment or access to education, although the extent of their enforcement is unclear.

The rights of religious and ethnic minorities are generally respected in Zambia. According to one of the amendments to the constitution in 1996, Zambia is officially a "Christian Nation." Hindus and Muslims, among others, are nonetheless generally able to practice their religion without obstruction. Zambia has not experienced religiously motivated violence.

Officially, 72 African ethnic groups compose the greater part of Zambian society, none large enough to dominate any of the others. Partially due to the legacy of Kaunda's conscious efforts to prevent ethnic divisions from emerging, ethnic violence is rare. More than 100,000 people of European or Asian descent also permanently reside in Zambia, many of them citizens.¹⁸ Although people of non-African descent are occasionally subject to political or social scapegoating, infringements on personal liberty are rare. Although people of non-African descent Indeed, whites and Asians hold parliamentary seats and have held cabinet seats in the past. In recent years, Zambia has welcomed white farmers and entrepreneurs fleeing persecution and property seizure in neighboring Zimbabwe.¹⁹

On paper, Zambia embraces gender equality as a core principle. The constitution grants "fundamental freedoms and rights of the individual" regardless of sex and marital status. Civil society groups (including Women for Change and the NGO Coordinating Committee) and government officials commonly pay lip service to the need to be sensitive to gender issues in public policy.²⁰ Yet poverty, cultural practice, and the absence of legal instruments to enforce constitutional protections make Zambia a particularly poor place to be a woman. One recent survey of more than 5,000 Zambian women found a widespread expectation, as well as acceptance, of the practice of spousal abuse.²¹ Spousal rape is not explicitly criminalized.

In particular, women's inheritance rights are frequently abrogated. When a husband dies, his original family commonly repossesses all of his property, leaving his widow in a vulnerable, potentially destitute position. A deceased man's brother frequently takes on guardianship of the children, a situation in which daughters in particular are subject to sexual abuse. In an age of AIDS, orphans whose parents have died of AIDS must frequently fend for themselves. Girl-children in such scenarios sometimes turn to prostitution. AIDS-infected men find young girls desirable for sex, based on the myth that sex with virgins can rid the man of the disease.²²

Zambia is both a source and a destination country for trafficking in women and children, primarily for sexual purposes. There is no single law against trafficking, although several trafficking cases have been prosecuted in recent years under laws against kidnapping, promoting prostitution, or sex with a minor.²³ The criminal justice system is poorly equipped to handle spousal or sexual abuse issues. Police departments remain male-dominated, with little experience with or understanding of gender-sensitive issues. The police are reluctant to intervene when perpetrators justify their acts in the name of cultural practice.

Zambia's civil society is vibrant (see "Accountability and Public Voice"). Trade unions – which played a leading role in the formation of the MMD (Chiluba was a union leader himself) – are active. In 2003-04, teachers, telecommunications workers, civil servants, and health clinic workers were among those who went on strike. Although pledged to remain nonpartisan, unions have been vocal critics of the government and its economic policies.

For its part, the government frequently tries to rein in the capacity of civil society to influence politics. Informal groups face potential barriers to collective action. Although the Mwanawasa administration has not relied upon it as much as the Chiluba regime, the Public Order Act allows the state to license – and thereby restrict – public demonstrations. The Act effectively enables the state to prohibit and criminalize certain public gatherings, if it so chooses. The police, under regional commanders, bear primary responsibility for maintaining order around public demonstrations. They have been willing to break up demonstrations when a decision – usually politically motivated but justified legally in a technical sense – is made that a given demonstration is illegal. When they do, they frequently resort to the use of tear gas but have not had a major incident involving lethal force since 1997, when Kenneth Kaunda and another opposition politician were shot and injured at a rally in Kabwe. In 2003-04, there were few demonstrations and riots that might have prompted a heavy police or military response, and almost no record of the application of lethal force. One exception was a market riot in the border town of Nakonde that left one woman dead, apparently from a police officer's gunshot.

Recommendations

• To reduce prison crowding, the government should upgrade the Zambian prison infrastructure and explore wider use of non-custodial means of punishment.
• The government should build on Mwanawasa's refusal to use capital punishment and abolish the death penalty altogether.
• The police should become better prepared to handle sexual abuse cases. Possible measures include comprehensive police training on domestic violence and sexual assault laws, the creation of a dedicated anti-domestic violence task force, and the hiring of more female officers.
• To mitigate against the social devastation of the AIDS epidemic, the government should employ protections of the property of widows (including sanctions against those who attempt to deprive widows of their property) and devise a strong safety net for orphans with a focus on deterring the incidence of drug use and prostitution.
• The revised constitution should enshrine protections for the rights of Zambians to associate with one another. Laws that may contradict those rights, such as the Public Order Act, should be revised so that they are consistent with fundamental protections.

Rule of Law – 4.26

The Zambian judiciary has exhibited laudable independence from political pressures, even during the most illiberal phases of the Chiluba administration. The constitution mandates that the president may remove a judge of the High Court or Supreme Court only after obtaining the recommendation of a specially designated tribunal convened to investigate the ability of the judge in question to perform the duties of the office. The avenue has not been pursued in recent years. Moreover, although several prominent judges were UNIP-era holdovers, Chiluba never attempted to pack the courts. Mwanawasa has continued the tradition of respecting the judiciary's independence.

Mwanawasa did draw criticism in early 2004 for firing the director of public prosecutions, Mukelabai Mukelabai, for meeting with Xavier Chungu, a co-defendant of Chiluba's in an ongoing corruption trial. An investigatory tribunal rejected the charges and recommended Mukelabai's reinstatement.

Corruption remains an issue for Zambia's judiciary. Most notably, in 2003, Chief Justice Matthew Ngulube resigned after a tax tribunal found that he had accepted over $10,000 in gifts from President Chiluba between 1998 and 2000.²⁴ Perhaps more damaging to the pursuit of justice is corruption in trial courts. In April 2004, two Lusaka magistrates were suspended for petty corruption. The sitting home affairs minister, Ronnie Shikapwasha, has claimed that corrupt judges bear some responsibility for Zambia's high crime rate, with criminals able to bribe their way out of conviction.²⁵

The judiciary system as a whole suffers from insufficient staffing and a lack of resources. It is consequently overwhelmed by its caseload. Cases – including hearings on the petition challenging the 2001 presidential vote – commonly adjourn on account of insufficient court personnel. Despite constitutional protections to the contrary, suspects sometimes languish for years in custody awaiting trial in the overburdened system.

According to the constitution, individuals have a right to representation by a counsel of their choosing. However, the constitution does not provide for a publicly funded defense counsel, even in the case of an indigent defendant accused of a felony. Poorer Zambians thus cannot expect equal treatment before the judiciary.

Under Mwanawasa, the government has been more aggressive in investigating and prosecuting allegations of abuse of power by members of the ruling party. Most notable is the case of former President Chiluba (see "Anticorruption and Transparency"). However, sitting judges, members of parliament, and cabinet members have been charged with crimes and prosecuted as well. Most prosecutions are related to corruption charges – although in the case of Justice Ngulube cited above, a tax violation provided the occasion for investigation and prosecution.

It is uncommon for the military to participate in – or even comment upon – civilian politics. The military has generally been respectful of the rule of law. Even in the case of a notorious exception – the 1997 coup attempt by dissident officers – the rank and file as well as most of the military's leadership structure remained loyal to the republican president.

The Zambian constitution provides for protection from deprivation of property, although the enumeration of 27 exceptions, including "in terms of any law vesting any such property or rights in the President," and "in execution of judgments or orders of courts," suggests that the protection is somewhat weak. The court system handles cases involving the enforcement of contracts, including those implicating the state. Their resolution does not appear to be systematically biased but does remain subject to the inefficiencies of the court system discussed above.

In urban areas, many residents live in townships – called compounds in Zambia – without title to their dwellings or the land on which the dwellings sit. These townships are technically illegal, as the state owns the land and may dictate its use. Indeed, during the Kaunda era, the government occasionally bulldozed them. However, they have grown to accommodate such a significant portion of the population that similar actions would be unthinkable today. During the Chiluba administration, the government undertook a program of granting private ownership to urban residents who had hitherto rented their property from local government councils. The program promoted ownership, although the councils resented the loss of an income source.

Ownership of land is a source of controversy. According to the Land Act, land in Zambia is vested in the president, who lets it to occupants in 99-year leases. In practice, 80 percent of the land is leased to traditional rulers, who then allocate it among subjects and others. As a result, most rural residents are twice removed from actual ownership of their land. Either the government or the traditional ruler may effectively expropriate residents' land, which results in both insecurity and a potential for corrupt exploitation.²⁶ The individuals most likely to lose property are widows (see "Civil Liberties").

Recommendations

• The government should transparently and vigorously investigate corruption at all levels of the judiciary.
• The courts, which should be better funded, should institute human resource policies to prevent the rampant absenteeism that results in delayed and slow trials.
• The revised constitution should mandate the provision of legal counsel if a defendant is unable to hire one on his or her own.
• The government should extend its promotion of individual housing and land ownership to semi-urban and rural areas, while remaining sensitive to interests of traditional rulers in order to make such a program politically feasible.

Anticorruption and Transparency – 3.39

According to the Anti-Corruption Act (last amended in 1996), "abusing a public position for a personal (family, party, sectional, tribal, and so on) advantage or interest over those of the many" is a criminal act. Nevertheless, corruption is a dominant concern in Zambia, which ranked 14th out of the continental 28 Sub-Saharan countries listed in Transparency International's 2004 Corruption Perceptions Index.²⁷

Since taking office, President Mwanawasa has prioritized anticorruption efforts, including the creation of an anticorruption task force that has investigated more than 500 companies and individuals. The highlight of these efforts has been the prosecutions of ex-president Chiluba and several of his associates. One of Mwanawasa's first moves as president was to push for the removal of the immunity from prosecution to which ex-presidents had been entitled. He succeeded through an act of parliament, which was later upheld by the Supreme Court.²⁸ In February 2003, a day after the court's decision, Chiluba was arrested and charged with 66 corruption-related counts.²⁹ By December, Chiluba was facing two trials – one for abusing a slush fund and another for stealing from suspended accounts in the Zambia National Commerce Bank – featuring 233 separate charges against him and his associates and relating to more than US$44 million worth of allegedly stolen funds.³⁰

Since the initial arrests, however, politics and scandal have plagued the prosecution of Chiluba. By September 2004, the Chiluba trials had yielded no convictions. The highest-profile defendants among his co-accused – former Intelligence Director Xavier Chungu and former Ambassador to the United States Attan Shansonga – had jumped bail. Mwanawasa tried unsuccessfully to dismiss the prosecutor in charge of the case after the latter was alleged to have consorted with the accused. By September 2004, only Chiluba and two lesser-known aides remained on trial. Charges relating to the slush fund case have been dropped, and the remaining case involves just $500,000.³¹

Although Mwanawasa's anticorruption campaign has focused a high level of media attention on Zambia's corruption problems, critics have claimed that the resources devoted to the Chiluba prosecution would have been better spent on broader anticorruption efforts, such as those of the longer-standing Anti-Corruption Commission.³² Along with Mwanawasa's Taskforce on Corruption, the Anti-Corruption Commission and the auditor general also have mandates to detect, prevent, and seek the punishment of public officials accused of corruption (in the latter case, by recommending prosecution before a court of law). These latter institutions, however, have been beset by resource constraints.³³ Each is dependent upon the will of the executive to varying extents. Salaries of the offices in question are constitutionally protected, but their operating budgets are determined by the president. Allegations of corruption implicating those close to the president may therefore receive a less-than fair hearing. Whistle-blowers filing complaints under the parliamentary and ministerial code of conduct may be further deterred by legislation that provides for a sentence of imprisonment in cases in which the complaint in question is not proven.

The lack of success in the Chiluba case has overshadowed other developments. In 2003, Mwanawasa dismissed his vice president, Enoch Kavindele, in the wake of allegations of irregular contracting procedures tied to the campaign for the 2001 elections.³⁴ Other ministers and officials have also been forced out.³⁵ Meanwhile, Mwanawasa has been on the defense as well. Many of his current opponents were MMD members until recently and have testified that Mwanawasa benefited from the abuse of state resources during the 2001 presidential campaign.³⁶

Mwanawasa's anticorruption focus has involved few efforts to change the underlying environment, in which corruption is endemic. Despite more than a decade of privatization efforts, the state's involvement in the economy provides ample opportunities for corruption. The bureaucracy is rife with licensing requirements and bureaucratic controls. Widespread poverty and low formal-sector wages lead many public sector employees to top off income with corrupt practices out of necessity.

The fact that many of the richest and most successful individuals in Zambia are current or former government ministers raises perceptions of corruption. A recent survey found that 71 percent of Zambians believed that their politicians entered politics in pursuit of their self-interest rather than the public good.³⁷ Indeed, recent corruption scandals – such as that which forced Kavindele to resign – have originated in alleged efforts by public office holders to use their position for private gain. Although it has improved in recent years, the government still does relatively little to promote transparency in its actions and those of its leaders. No law compels government officials to declare their assets or to declare potential conflicts of interest with the private sector. The enactment of a freedom of information bill, which the government introduced in 2002, would be a strong move in that direction by reducing government officials' protection from having to disclose personal information. However, the government pulled the bill for further comment after its initial introduction, and the law remained unpassed as of September 2004.³⁸

The education system is not immune from corruption. The ministry of education has, at times, been plagued by theft and sale of exam questions, although few incidents along those lines have been reported recently. In November 2003, the principal and three other officials at Mulungushi College in Kabwe were arrested on corruption charges.³⁹ No other corruption scandals drew widespread notice in 2003-04.

Citizens have a right to information about government's ordinary activities. However, information on bills under consideration, legislation, and judicial opinions is hard to come by. The weekly Government Gazette reports on a wide range of government activities but is expensive and, in practice, narrowly available. The independent Post newspaper has occasionally taken the initiative to publish legislation and court opinions verbatim. Government Internet sites are poorly maintained and thus usually well out of date.

Recent events have improved the transparency of the activities of parliament. The current balance of political parties is far more competitive than at any other time in Zambian history, presenting opportunities for opposition members to serve a more effective watchdog role. The budgeting process has also been more transparent and inclusive in the wake of the PRSP experience, which has the added benefit of bringing donor flows more directly into public view. However, data on actual expenditures are generally not released in a timely manner.⁴⁰ Expenditures not authorized by parliament and are not required to come to light until 30 months after they have taken place.⁴¹ Matters relating to borrowing and debt fall entirely under the jurisdiction of the ministry of finance and are therefore not subject to parliamentary oversight. In 2004, budget transparency took a step backward with the suspension of the HIPC Tracking and Monitoring Team, a quasi-NGO that had originally been established by the ministry of finance.⁴² The team had identified several instances of alleged abuse of HIPC-related funds.⁴³

The Zambia National Tender Board (ZNTB) is, according to Transparency International-Zambia, well designed but greatly abused and lacking discipline in practice.⁴⁴ Avenues of appeal regarding the ZNTB's decisions are not sufficiently independent of the board itself. A Web site established in 2004 provides more information about open tenders (and the tender process) than was previously available but does not contain data on successful and unsuccessful bids on closed tenders.⁴⁵

Recommendations

• The government should continue efforts to prosecute former president Chiluba, although it should be careful not to neglect other anticorruption efforts – particularly those combating petty corruption – as it does so.
• The Anti-Corruption Commission should be provided with more financial and human resources. Oversight and operational support for the Commission should be vested in parliament (with guaranteed opposition or civil society participation), rather than in the president.
• The ministry of finance should be accountable to parliament for its borrowing and debt-service activities. The ministry of finance and the ZNTB should regularly release to the public information on their activities in a widely accessible format.
• The government should reintroduce and parliament should enact the freedom of information bill. Security-based exceptions to the bill's disclosure provisions should be narrowly tailored.
• The PRSP process should be regularized beyond the life of the HIPC program to provide for institutionalized transparency regarding mid- and long-term planning, the annual budgeting process, and the flow of foreign assistance.

Notes

1 For a profile of Mwanawasa, see "Profile: Zambia's New Leader," BBC News Online, 8 January 2002, http://news.bbc.co.uk/1/hi/world/africa/1748595.stm.

2 As reported in "Verdict Divided on Zambia's poll," BBC News Online, 4 January 2002, http://news.bbc.co.uk/1/hi/world/africa/1742676.stm.

3 "Observing the 2001 Zambia Elections – Final Report" (Atlanta: Carter Center, October 2002), 37, 41, http://www.cartercenter.org/documents/1135.pdf (accessed 14 December 2004).

4 "Interim Report on the 2001 Tripartite Elections" (Lusaka: Foundation for Democratic Process [FODEP]http://www.fodep.org.zm/intrep1.htm.

5 Webster Malido, "We Used Money To Buy Off Opposition – Katele," The Post (Lusaka, Zambia), 15 February 2003.

6 "Handbook on Funding of Political Parties and Election Campaigns" (Stockholm: Institute for Democracy and Electoral Assistance [ IDEA], 2004), 191, 195, 199, 207, 218, http://www.idea.int/publications/funding_parties/index.cfm#tableofcontents.

7 Michael Bratton, "Political Participation in a New Democracy," Comparative Political Studies 32, 5 (August 1999): 549-78.

8 "Interim Report" (Lusaka: Electoral Reform Technical Committee [ERTC], 6 August 2004), http://www.ertc.gov.zm/images/ERTC%20INTERIM%20%20REPORT.pdf.

9 Nakubiana Mumbuna, "Draft constitution to be ready this year," Times of Zambia (Ndola), 28 August 2004.

10 "198 Societies De-Registered," Times of Zambia, 4 November 2003.

11 Leonard Kantumoya, "Investigative Journalism in Zambia: A Practitioner's Handbook" (Lusaka: Transparency International-Zambia [TI-Z] and the Friedrich Ebert Stiftung, 2004).

12 "Zambia: Attempt to close down TV station poses threat to media freedom" IRINNews (UN Office for the Coordination of Humanitarian Affairs), 5 November 2003, http://www.irinnews.org/report.asp?ReportID=37658&SelectRegion=Southern_Africa&SelectCountry=ZAMBIA.

13 Portions of this paragraph draw heavily from Henry Macha, "Zambia: 2003 World Press Freedom Review" (International Press Institute [IPI], 2004), http://www.misa.org/sothisisdemocracy/zambia/zambia.html.

14 In June 2002, one report held that the prisons were at 259% capacity. See "World Prison Brief: Zambia" (London: International Centre for Prison Studies, Kings College, n.d.), http://www.kcl.ac.uk/depsta/rel/icps/worldbrief/africa_records.php?code=52.

15 "Mwanawasa declines the job of chief hangman," The Post (Lusaka), 28 February 2004.

16 "Captain Chiti is dead," The Post, 19 August 2004.

17 See "Report on the IFES sponsored election monitoring project for the 2001 tri-partite elections" (Frome, UK: Action on Disability and Development [ADD] – Zambia Programme, January 2002), http://www.ifes.org/disabilities/publications/news/02_01_Zambia_Report.htm.

18 The 100,000 figure comes from extrapolating from the 2000 census, which counts 10.3 million Zambians, of whom 1.3 percent are of non-African descent. See Government of Zambia, Central Statistics Office, "Census of Population Housing and Agriculture" (Lusaka: Government Printers, 2004).

19 "Zambia: Zimbabwean farmers increase tobacco production," IRINNews, November 2003.

20 See, for example, "Levy's a gender sensitive president," Times of Zambia, 14 May 2004.

21 See "Zambia: Culture of Silence over Gender Violence," IRINNews, 1 December 2003.

22 See "Suffering in Silence: The Links between Human Rights Abuses and HIV Transmission to Girls in Zambia" (New York: Human Rights Watch, 2002), http://www.hrw.org/reports/2003/zambia/.

23 Trafficking in Persons Report (Washington, DC: U.S. Dept. of State, 14 June 2004).

24 See "Former chief justice Ngulube loses appeal," Times of Zambia, 24 July 2004.

25 See "Shikapwasha saddened by judiciary corruption," Times of Zambia, 31 March 2004.

26 These issues are discussed at length in "Land Tenure Systems and Sustainable Development in Southern Africa" (Addis Ababa: UN Economic Commission for Africa, ECA/SA/EGM.Land/2003/2, December 2003).

27 "Corruption Perceptions Index" (Berlin: TI, 2004), http://www.transparency.org/cpi/2004/cpi2004.en.html#cpi2004. In this statement, "continental Africa" includes Madagascar but excludes Seychelles and Mauritius.

28 See "Chiluba loses immunity appeal," BBC News Online, 19 February 2003, http://news.bbc.co.uk/1/hi/world/africa/2779615.stm.

29 "Zambia ex-leader on theft charge," BBC News Online, 24 February 2003, http://news.bbc.co.uk/1/hi/world/africa/2794441.stm. Additional charges were made in August of 2003: see "Charges against Chiluba mount," BBC News Online, 5 August 2003, http://news.bbc.co.uk/1/hi/world/africa/3125601.stm.

30 "Zambia's matrix of plunder," BBC News Online, 9 December 2003, http://news.bbc.co.uk/1/hi/world/africa/3302419.stm.

31 "Chiluba corruption case cut back," BBC News Online, 14 September 2004, http://news.bbc.co.uk/1/hi/world/africa/3654612.stm.

32 "Zambia: Anti-corruption body under attack," IRINNews, 10 May 2004, http://www.irinnews.org/report.asp?ReportID=41088&SelectRegion=Southern_Africa&SelectCountry=ZAMBIA.

33 See, for example, "Manpower shortage hampers ACC-OPS," Times of Zambia, 24 July 2004; and "Increase funding to auditor general's office plead MPs," Times of Zambia, 17 February 2004.

34 "Zambia: Anti-corruption campaign claims VP," IRINNews, 2 June 2003, http://www.irinnews.org/report.asp?ReportID=34476&SelectRegion=Southern_Africa&SelectCountry=ZAMBIA.

35 See, for example, the case of Matthew Ngulube, noted above.

36 See, for example, "We Used Money To Buy Off Opposition – Katele," as well as "Zambian leader survives sack bid," BBC News Online, 14 August 2003, http://news.bbc.co.uk/1/hi/world/africa/3149871.stm.

37 "Police service tops TIZ's survey on corruption," The Post (Lusaka), 19 December 2002.

38 The draft legislation is available online at http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/zambia/foi_bill_2002.pdf.

39 "Mulungushi college principal arrested," Times of Zambia, 14 November 2003.

40 "Austerity without injuring the poor: 2004 post-budget statement" (Lusaka: Catholic Commission for Justice, Development, and Peace [CCJDP], February 2004), http://www.sarpn.org.za/documents/d0000749/P843-CCJP2004.pdf.

41 Mulela Margaret Munalula, "A position paper on the effectiveness of government watchdog institutions in Zambia" (TI-Z, August 2002), http://www.tizambia.org.zm/watch_doc.doc.

42 "Zambia: NGOs to continue monitoring HIPC fund spending," IRINNews, 10 May 2004, http://www.irinnews.org/report.asp?ReportID=40973&SelectRegion=Southern_Africa&SelectCountry=ZAMBIA.

43 "Call for more transparency in loan agreements," IRINNews, 10 May 2004, http://www.irinnews.org/report.asp?ReportID=41769&SelectRegion=Southern_Africa&SelectCountry=ZAMBIA.

44 Munalula, "Watchdog Institutions," 43; see also K. Lolojih, "Report on Government Procurement Systems" (TI-Z, November 2003), http://www.tizambia.org.zm/admin/docs/Report%2014%20on%20Government%20Procurement%20Systems%20-%20Nov%202003.pdf.

45 Zambia National Tender Board Web site: http://www.tenderboard.gov.zm/index.php.