Countries at the Crossroads 2007 - Zambia

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

Introduction

Just as Zambia's transition to multiparty democracy in 1991 heralded a moment of great optimism for democracy across Africa, its apparent lapse into old authoritarian habits during the administration of President Frederick Chiluba (1991-2001) was seen as emblematic of the dashed hopes that democratic transitions might revolutionize African governance. Now, more than 15 years after the return of multiparty politics to Zambia, a more nuanced story is developing, calling for moderation of both the excessive optimism of the era's early years and the pessimism that set in later.

From Zambia's independence in 1964 until 1991, the country was ruled by Kenneth Kaunda and his United National Independence Party (UNIP). Although multiparty competition existed at independence (and had, indeed, featured prominently in the process of decolonization), Kaunda banned opposition parties within a decade of coming to power. By the late 1980s, opponents of Kaunda's regime found common cause in their challenge to the single-party nature of the state. Forming a coalition known as the Movement for Multiparty Democracy (MMD), they forced Kaunda to legalize opposition parties. After becoming a party bearing the same name, the MMD resoundingly defeated Kaunda and UNIP in an election in October 1991.

Succeeding Kaunda, Chiluba embraced the rhetoric of both political and economic liberalization but often backpedaled in terms of substance. Chiluba twice declared states of emergency, during which he imprisoned political opponents. In 1996, the MMD regime wrote changes into the constitution that barred several leading opponents – including Kaunda – from running for president. Toward the end of his term, only widespread objections from civil society and some members of the MMD itself, supplemented by pressure from donor countries and organizations, kept Chiluba from seeking to extend his tenure beyond the constitutionally mandated limit of two terms.

Chiluba's hand-picked successor, one-time vice president Levy Mwanawasa, won the presidential election in 2001, prevailing by the slimmest of margins over a sharply divided opposition. Mwanawasa garnered just 29 percent of the vote, a mere 2 percentage points more than his nearest rival. Upon assuming office, Mwanawasa unveiled what he called a "New Deal" for Zambia, emphasizing his intention not only to reinvigorate the economy but also to commit to better governance. He surprised many by launching an anticorruption drive that began by targeting his predecessor. The strategy appeared to be tantamount to political suicide – Mwanawasa had relied on the support of staunch Chiluba backers for his narrow win in 2001, and the opposition had vowed not to repeat its fateful fractionalization in the next electoral cycle. Yet Mwanawasa returned to office for a second term in elections held in September 2006. He apparently benefited from the untimely (but not suspicious) death of his main rival, 2001 runner-up Anderson Mazoka, in May 2006. Mwanawasa's willingness to go after his onetime sponsors also paid political dividends, as he won over many of his former opponents.

On economic matters, which necessarily establish the context in which trends in liberty and freedom play themselves out, Zambia has also been paradigmatic for much of Africa. After a promising postindependence performance, during which per capita gross domestic product (GDP) growth averaged 2.2 percent per year from 1964 to 1969, per capita GDP declined by an average of 2.0 percent per year over the course of the 1970s, 1980s, and 1990s. Mirroring broader continental trends, per capita GDP growth returned in the 2000s, averaging 2.5 percent per year from 2000 through 2005.¹ A wide range of factors contributed to the improved performance, including improved trading terms with the United States, debt relief, increased foreign exchange earnings from tourism displaced from Zimbabwe, and a mid-decade boom in the price of copper. Beyond macroeconomic figures, however, poverty is widespread in Zambia. According to the most recent available World Bank data, 87 percent of the population lives below the $2-per-day poverty line.²

It is in this context – democratic consolidation efforts led by an apparently sincere but politically vulnerable president, ongoing partisan realignment, and improving economic performance amid widespread poverty – that the recent trends in accountability, civil liberties, rule of law, and anticorruption efforts must be considered.

Accountability and Public Voice – 4.08

Free and fair electoral laws and elections: 4.25
Effective and accountable government: 4.00
Civic engagement and civic monitoring: 4.33
Media independence and freedom of expression: 3.75

The September 2006 elections tested the ruling party's ability to stay in power, particularly in light of President Mwanawasa's efforts to prosecute his predecessor, Frederick Chiluba, on charges of corruption. The elections also challenged the Mwanawasa regime's commitment to improved governance, revealing whether the principles underlying the "New Deal" could force a break with the legacy of heavily incumbent-biased elections in Zambia.³

Substantively, the elections produced a narrow but solid victory for the ruling MMD. Mwanawasa secured a presidential victory with 44 percent of the vote, versus 29 percent and 25 percent for his nearest rivals, the Patriotic Front's Michael Sata and the United Democratic Alliance's Hakainde Hichilema, respectively. Meanwhile, the MMD won 72 out of the 150 National Assembly seats, with the constitutional provision that the president may appoint up to 8 additional lawmakers further guaranteeing MMD control over parliament. Procedurally, the elections were relatively smooth, with few reports of mishandled ballots or ballot boxes. A 2006 Electoral Act had introduced transparent ballot boxes and voter identification cards bearing the holders' photographs. Voter registration, previously conducted only before elections, was reformed to allow continuous updates of the voter rolls. Although there were scattered allegations of fraud, none cast the essential results of the elections in doubt.

Several problems, each of which had plagued earlier elections, remain unresolved. The most contentious is the constitutional framework under which elections take place. The draft constitution produced by the Mung'omba Constitutional Review Commission, which Mwanawasa had appointed to consider revising or replacing the constitution, had recommended a new requirement that the winner of a presidential election garner more than 50 percent of the votes – in contrast to the prevailing single-round, first-past-the-post system. Yet despite having pledged to sponsor a new constitution, Mwanawasa delayed making any changes until after the electoral cycle.

Also unchanged is the political status of the Electoral Commission. Critics have called for more institutional independence for the commission with respect to both its composition and its funding. In the absence of constitutional changes, the commission remains composed of presidential appointees, with its funding dependent on annual budgetary allocations and, in many recent years, donor contributions.

The new Electoral Act also called upon the Electoral Commission to produce a new set of ground rules for campaigning in light of recurrent concerns over vote-buying and the abuse of state resources for political purposes in past elections. The resulting document, the Electoral Code of Conduct, mandated equal access to the state-owned media. Indeed, the Zambia National Broadcasting Company (ZNBC) apparently complied with these rules with respect to programming. However, a study by the Media Institute of Southern Africa found that 36 out of 48 news radio stories pertaining to political parties featured the incumbent MMD.⁴ The code also instituted enforceable penalties for coercive or intimidating behavior over the course of the campaign, which helped to realize a largely peaceful and quiet electoral period. Violence, generally nonlethal, and confrontations did greet the announcement of the results, as supporters of the Patriotic Front initially refused to accept Mwanawasa's reelection.⁵ Within days, however, reports of postelection violence subsided, and the legitimacy of Mwanawasa's term was accepted almost universally.

Although the 2006 elections resulted in a fourth consecutive term for what is, historically, one of only two ruling parties in Zambian history, they inspired confidence in the electoral mechanism as a means of providing accountability. The ruling party defeated its rivals on a relatively level playing field. Indeed, other than the constitutional issues noted above, the only factor instrumental to the MMD's success outside of its popularity and that of its candidates was probably the death of Mazoka, then the presumptive candidate of the United Democratic Alliance, in May 2006. Compared with Mazoka, Hichilema was relatively unknown and probably had less nationwide appeal. Taking into account the institutional ground rules, the Mwanawasa victory represents the most legitimate reflection of the will of the people that the system could provide.

No rules regulate campaign finance in Zambia. A controversy arose during the 2006 campaign when it was reported that Sata, who had criticized Chinese investors, was being bankrolled by Taiwanese business interests. There was no public mechanism to confirm or refute the allegations, and the episode served to shed light on the need for better accounting of campaign revenues and expenditures. The lack of campaign finance regulation presents economically powerful actors with an opportunity to exert undue influence on Zambian politics. Innuendo aside, however, there is little direct evidence that any such actors have done so in recent elections.

Electoral participation continued an upward trend that began in 2001, following years of low and falling participation. Almost 2.8 million Zambians voted in the 2006 contest, over a million more than in the previous set of elections. In addition to a higher rate of voter registration, the turnout rate also reached a record level of 71 percent. The advent of rolling voter registration did much to facilitate political participation, although a concerted registration drive in advance of the 2006 elections was still necessary. The 2006 elections also witnessed a large increase in the number of ballot boxes within existing polling stations, as well as a small increase in the number of polling stations, vastly reducing the time spent in queues and thereby lowering the economic opportunity cost of voting.

The narrow margin of the MMD's National Assembly victory serves to continue the strengthening of the parliament's role in the legislative process, as the government cannot afford to ignore potential defections. This differs from the Kaunda years, when the legislature was subordinate to the UNIP apparatus, and the Chiluba years, when overwhelming MMD majorities allowed the administration to use the parliament as a rubber stamp for policies formulated within the cabinet. During Mwanawasa's first term, when the MMD also held a narrow majority, the government was forced to make deals with the opposition and even bring non-MMD members into the cabinet, at times throwing the opposition into disarray over whether or not to cooperate.

Meanwhile, the judiciary remains structurally subservient to the executive branch, with its members essentially serving at the pleasure of the president. While Mwanawasa has not noticeably abused or even used the power to fire judges and magistrates, long-planned constitutional revisions would do well to strengthen the independence of the judiciary.

Notwithstanding the noteworthy improvement in the meaning and conduct of elections in Zambia, the level of accountability must be viewed in the context of how government works on a daily basis. Members of parliament continue to lack the means or incentives to serve their constituencies in specific ways, particularly outside of the campaigning season. At least in the MMD, the party's national executive committee retains the right to determine who will stand for election in a given constituency, meaning that for sitting members of parliament, loyalty to the party leadership is often more important than service to constituents. Meanwhile, too few opportunities exist for most citizens to contact their political representatives, and lawmakers rarely make themselves available to constituents. Local government remains underfunded and thus unable to respond to constituent needs, rendering its greater proximity to the public an unexploited resource for improved governance.

The government has espoused decentralization with respect to decision making, but it is not yet clear whether the financial resources to make it effective from a governance perspective will be allocated. For many rural Zambians, traditional rulers remain the usual recourse for addressing public grievances and needs. Despite the institutionalization of the House of Chiefs – a body of 27 traditional rulers limited to advisory powers – traditional leadership is, at best, awkwardly integrated with the other elements of constitutional government in Zambia. The formal state is unwilling and politically unable to actively provide incentives for good government by traditional rulers. For their part, citizens may be wary of further institutionalizing traditional leaders, since for many the cost of doing so – potentially forgoing accountability with respect to private matters (i.e., dispute resolution) – is seen as greater than the benefit of increased accountability on public matters. Thus, the quality of local leadership in terms of responsiveness and the provision of public goods is uneven.

The most noteworthy hindrance to the Zambian bureaucracy has traditionally been the informal system of tribal preferences by which many posts were allocated. To some extent, the conditions that created the fragile political position of the Mwanawasa regime – primarily the fracturing of the MMD coalition, which was perceived to have been strongly dominated by Bemba speakers, and the subsequent necessity to forge coalitions with former rivals – have reduced the hold of the politically driven, ethnicity-based patronage complex. Although bureaucratic decisions, including those pertaining to human resources, remain open to decision-makers' and supervisors' biases, the more competitive political environment has led to fewer publicly confirmed instances of blatant patronage, and increases the likelihood that such abuses would come to light.

The Zambian state has engaged in the rhetoric of protecting and advancing the interests of historically disadvantaged groups, including women and people with disabilities. The constitution bars many forms of discrimination, although the protected categories do not include sexual preference or orientation. In 2006, the government created a Ministry of Gender and Women in Development with the objective of promoting women's interests at the cabinet level. It is unclear, after only a year of operations, what effect the ministry will have on budgetary allocations and policymaking.

The state generally respects the right of interest groups to organize, so long as they adhere to a set of fairly straightforward registration procedures. The state does not, however, necessarily feel compelled to listen to them and does not provide regular opportunities to engage with them. For example, the National Assembly is less dedicated to committee hearings and meetings than to its sometimes raucous floor debates. As a result, nongovernmental organizations (NGOs), whether organized around specific issues or identity groups, often feel marginalized in the political sphere. The experiences of the Oasis Forum, an umbrella organization that has lobbied for a new constitution and broad-based participation in its creation, are somewhat emblematic. While the Mung'omba Commission's draft constitution was congruent with the proposals of the Oasis Forum in many respects, the government's decision to postpone responding to the commission's recommendations until after the 2006 elections left the group feeling stymied and impotent. Many NGOs receive a substantial portion of their funding from foreign donors. The Mwanawasa administration has not been as critical of such funding arrangements as its predecessor but has occasionally attacked NGOs' foreign links as a means of questioning their activities.⁶

Media freedom remains a contested subject in Zambia. The Post, an opposition newspaper, has served as a lightning rod for government criticism of the press. The Post's editor, Fred M'membe, was arrested on defamation charges in November 2005 following an editorial in which he wrote that Mwanawasa was a man of "foolishness, stupidity, and lack of humility."⁷ Mwanawasa had specifically criticized the Post the day before. The incident was somewhat extraordinary, however, in that over the past three years, the government has generally eschewed formal legal proceedings against media outlets with which it disagrees. Indeed, in early 2006, the government decided against prosecuting M'membe for the "foolishness" incident. The decision conformed to a well-established pattern of harassment of the media in Zambia, whereby threats of prosecution for defamation and libel are far more frequent than actual prosecutions. Such apparent restraint speaks to the relative independence of the judiciary.

More frequently, the government and others have preferred informal intimidation. M'membe himself had been questioned by police, and Post vendors had been harassed by MMD supporters, under similar circumstances in June 2005.⁸ The host of a call-in program on a privately owned station, Radio Phoenix, received similar treatment in June 2005 when he read a fax he said he had received that was critical of the government. After the police questioned the host, the radio station's owners dismissed him, undoubtedly in an effort to avoid the type and consequences of disfavor that the Post had faced.⁹

Supporters of the ruling party were not alone in attacking the Post's operations: at the time of the 2006 elections, supporters of the Patriotic Front political party attacked the Post's office after the paper projected that the MMD would win. In other incidents, Patriotic Front supporters intimidated a cameraman from the government-owned ZNBC, and supporters of another opposition party, the United Party for National Development, barred a reporter with the government-owned Times of Zambia from a press briefing.¹⁰ The perpetrators of these acts of intimidation were apparently not pursued by the authorities.

In recent years, the domination of the private media by the public media has diminished somewhat. Private and community radio stations have proliferated, leaving the ZNBC with a declining share of the radio market. The government still owns two of the three major newspapers, the Times of Zambia and the Zambia Daily Mail, although the Post is widely available as well. Only in the realm of broadcast television are the state media unchallenged, with the ZNBC still alone on the airwaves. Cable offers some alternative local programming but is not widely available. Most private media outlets are not dependent on the government for advertising revenue. While the state owns and operates one of the two major internet service providers, it does not censor or limit access to external websites. Similarly, the state has refrained from interference in more traditional, cultural media, such as literature and music.

The creation of space for the media to operate is a structural matter subject to ongoing debate. The constitution grants conditional freedom of expression to the media; the concept is enshrined in Article 20, but is diluted with exceptions and language found elsewhere in the constitution and the penal code that protects the president and the National Assembly from criticism. Although the incidents cited above reflect continued sensitivity to criticism on the part of the government, there are signs of increased tolerance. On at least two occasions, the speaker of the National Assembly, Amusaa Mwanamwambwa, refused to initiate defamation proceedings against journalists who had criticized the body, despite requests to do so from MMD lawmakers. It is worth noting that actors outside the government have also availed themselves of defamation suits against the press. Presidential candidate Michael Sata in August 2006 successfully sued for an injunction on the Zambia Daily Mail against publishing further "defamatory stories," after the paper ran two critical articles entitled "PLOT 1: Where does Sata stand?" and "Michael Sata Scares Investors."¹¹

Three pieces of legislation under consideration would increase the protection and support that the media receive. A Freedom of Information bill, composed but not yet before the parliament, would provide greater access to government information. After the elections, Mwanawasa's new minister of information, Vernon Mwaanga, declined to move on the bill, which had been withdrawn in 2002 after it was ruled that the creation of the bureaucracy to implement it would require budgetary authorization.

The other two bills – the Independent Broadcasting Authority (IBA) Act and the ZNBC (Amendment) Act – provide for independent boards to govern the state-owned media. Both bills became law but have not been implemented by the government. The High Court handed down a contempt-of-parliament ruling against the government for its failure to submit an ad hoc committee's nominees for the independent boards to lawmakers for final approval, but in 2007 the Supreme Court of Zambia overturned that decision, upholding the government's right to block the nominations.¹²

The freedom of the media is also limited by codes of conduct. All major outlets except the Post adhere to a voluntary code, the Media Ethics Code of Zambia (MECOZ). Subscribers to the code are subject to a fine for violating its standards. The Post's refusal to join MECOZ reflects a justifiable suspicion that pro-government subscribers might try to use it to punish or prevent the publication of critical coverage, even as the government avoids the taint of formal involvement in media suppression. The Electoral Commission, as authorized in a separate bill, also passed a code of conduct that applies to various participants in political campaigns, including the media. The code puts limits on projecting the winner before a formal announcement by the commission, a provision prompted by disparate and generally inaccurate polls prior to the 2001 elections.

Recommendations

• The National Assembly should enact a law that regulates campaign financing by requiring transparent and timely disclosure of all sources of campaign funds.
• The Assembly should regularly engage with civil society and private individuals through open parliamentary hearings at which the testimony of civil society groups and private citizens is solicited.
• The director of public prosecutions should make an explicit commitment to prosecute those who impede or intimidate journalists and the media.
• The government should comply with the IBA and ZNBC reform laws and submit nominees for the independent boards to the parliament for ratification.

Civil Liberties – 4.65

Protection from state terror, unjustified imprisonment, and torture: 4.00
Gender equity: 3.50
Rights of ethnic, religious, and other distinct groups: 4.75
Freedom of conscience and belief: 6.00
Freedom of association and assembly: 5.00

Notwithstanding the high-level rhetorical support for various freedoms as exercised in the public and private spheres, numerous constraints continue to impede the full realization of Zambians' civil liberties.

The constitution bars torture, and there were no cases of public figures alleging such abuse between late 2004 and early 2007. In fact, torture claims were notably absent from two recent cases involving government opponents: In July 2005, Michael Sata, one of Mwanawasa's two emergent political rivals, was arrested on arguably politically motivated charges of sedition and espionage for his support of a mineworkers' strike. Upon his release on bail two weeks later, Sata did not allege that torture had taken place while he was incarcerated. Likewise, an aide loyal to former President Frederick Chiluba, Richard Sakala, spent five years in prison on corruption charges and did not report having been tortured.

Nonetheless, torture remains common at the less visible level of the local police precinct. The most extreme cases have resulted in death, such as when a man named Kennedy Zulu died from wounds he suffered while in police custody in Lusaka in 2005.¹³ Working only from cases in which it was approached by complainants, the nongovernmental Legal Resources Foundation (LRF) reported many other instances of nonfatal torture. Most involved police officers trying to extract confessions from suspects in custody, overzealous apprehension methods, or abuse of authority motivated by apparent malice.¹⁴

Prisons in Zambia are appallingly overcrowded. The Zambia Central Prison, reportedly constructed in 1926, was designed to handle no more than a few hundred inmates. It has never been expanded and, as of April 2006, housed approximately 3,000 inmates.¹⁵ Countrywide, more than 14,000 prisoners languish in a system designed for a maximum capacity of approximately 5,500.¹⁶ Overcrowding results in the spread of epidemic diseases such as tuberculosis and AIDS, as well as malnourishment. Prison staffs have additional difficulty maintaining control – and protecting prisoners from other prisoners – in such conditions.¹⁷

A lack of resources throughout the criminal justice system exacerbates prison congestion, creating a disturbing pattern of detention without trial as legal proceedings are delayed amid shortages of attorneys, magistrates, and courtroom workers.

Citizens of Zambia do have the means to seek redress for the violation of their rights, although it is not clear how widely this is appreciated. The Permanent Human Rights Commission accepts petitions alleging the abrogation of human rights, and the LRF assists citizens with complaints against the police or other government bodies. Many of the cases the LRF takes on involve complainants who had previously tried without success to gain access to the local judicial process, suggesting that the ordinary means of pursuing the redress of human rights violations are often insufficient. Indeed, particularly with respect to cases of undue detention without trial, the same constraints and shortages that led to the original violation may affect the handling of the complaint as well.

Extended pretrial detentions weaken the force of the constitutional protection against arbitrary arrest. Political critics and opponents of the government are occasionally subject to detention, as in the case of Fred M'membe noted above. On a more routine basis, the state can employ defamation investigations without ever bringing charges, or it can bring charges that it has little intention of seeing through in court. A defamation investigation involves police questioning of suspects about their political views to determine whether they have violated restrictions on criticizing public officials, effectively allowing the authorities to detain and intimidate opponents. For example, Guy Scott, a former minister and an official in Sata's Patriotic Front, was questioned by police for two hours over statements he made at a Patriotic Front demonstration during President Mwanawasa's opening of parliament in 2006.¹⁸

An excessive caseload – and, at times, indifference – leads to inconsistent results when private citizens ask the police to investigate instances of abuse by private actors. Following a rash of mining-related deaths in 2004 and 2005, the perceived hesitancy of the MMD to put pressure on foreign investors who mistreated their employees or neglected worker safety became a campaign issue, although evidence of systematic abuse by foreign mine owners has not surfaced.

The status of women in Zambia is influenced both by formal, legal declarations and cultural practice. Article 23 of the constitution prohibits discrimination against women in matters to which the state is a party. However, in the fourth clause of the article, an exception is made "with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law," thereby undermining the principle of equal treatment in a range of fundamentally important areas. While Article 23 protections directly apply to the government and its employment decisions, they do not clearly cover private actors, and there is little legal precedent for gender discrimination claims against private entities.

Domestic abuse is widespread in Zambia. One report found that over half of all Zambian women had experienced physical abuse.¹⁹ Under customary law, women may be subject to physical abuse and the deprivation of property. The practice of "cleansing," in which a widower "cleanses" himself by having sex with a member of his deceased wife's family (ideally, under the practice, a virgin), or in which a widow is forced to have sex with a brother-in-law, continues in many parts of the country. In addition to frequently being nonconsensual, the practice contributes to the spread of AIDS. Although a 2005 amendment to the penal code increased the penalties for rape and domestic abuse, it did not address marital rape or nonphysical forms of abuse. Moreover, progress depends on more consistent and vigorous prosecution of abusers. The Victim Support Unit of the Zambian police is gaining more recognition but is still ill-equipped to handle a caseload that would reflect the true level of need in the country.

Human trafficking is also reported in Zambia, albeit more frequently in general terms than in specifics. An April 2006 UN report on patterns of human trafficking rated Zambia's role as a point of origin as "moderate," but called the frequency of its use as a transit point and destination "very low."²⁰ One notable case involved a Congolese woman who was caught bringing more than a dozen children into Zambia en route to Zimbabwe. The incident, for which the smuggler could only be fined in the absence of a legal framework on human trafficking, prompted the criminalization of the practice in the penal code.²¹ As of the end of 2006, the state had not yet applied the new penalties to a criminal case. Zambia also acceded to the UN's Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, in April 2005.

In addition to women, Article 23 of the constitution protects ethnic, religious, and other distinct groups. Zambia is home to dozens of ethnic groups based on a variety of linguistic or lineage-based affinities. Members of a given ethnic group may often expect and receive preferential treatment from their fellow members in private interactions, but discrimination in the public sector is rare, or at least rarely commented upon. Ethnic discrimination emerged as a point of debate during the 2006 election campaigns. While some observers perceived a split between the Tonga and Lozi ethnic groups in the selection of Hakainde Hichilema as the United Democratic Alliance (UDA) candidate, and Patriotic Front candidate Michael Sata alleged that both the UDA and the MMD were biased against the Bemba, the press and most observers bristled at the reintroduction of tribalist language in Zambian politics. The ruling party and President Mwanawasa generally avoided engaging in the debate.

Criticism of foreign nationals is less taboo than internal ethnic division, and it has mounted in recent years as Chinese investors, firms, and laborers have increased their presence in Zambia. A surge of anti-Chinese sentiment was reported at the time of Chinese President Hu Jintao's visit to Zambia in February 2007.²² Similarly, university students chanted anti-Chinese slogans in demonstrations following the funeral of 46 workers who died in an explosion at a Chinese-owned mine in April 2005.²³

Zambia remains a "Christian Nation" according to the constitution, although the Mung'omba Commission's draft constitution calls for the repeal of that clause. It has had minimal effect in any event, as state and society have been broadly tolerant of all religions practiced in Zambia. The state has generally refrained from interfering with the operation and leadership of religious bodies and from placing restrictions on religious observance, ceremonies, and education.

The government has increasingly taken the concerns and issues of people with disabilities seriously. The Electoral Act of 2006 gave the Electoral Commission the responsibility of ensuring that disabled Zambians could vote. Monitors of the that year's elections reported only a few problems in this regard.²⁴

Zambia has few limitations on the right of association, but authorities are somewhat restrictive of the right to assembly. The government does not limit membership in trade unions, although some private investors have reportedly taken stronger stances against union organization of late than the government traditionally has. The government also does not compel membership in any groups. The practice of card checks, whereby political party activists roam neighborhoods to ensure – by threat of force, if necessary – that residents hold a membership card for the party to which the activists belong, was reported less frequently in the 2006 election period than it had been in previous electoral cycles.

Zambians are generally free to organize and mobilize on behalf of their chosen causes. Under the Public Order Act, however, the state requires organizers to obtain police permission seven days before staging a demonstration. The act has drawn criticism for being both unduly restrictive and impractical, since it prevents protesters from responding quickly to unforeseen events. The authorities sometimes turn down requests to hold demonstrations. For example, police in Kasama denied the Patriotic Front permission to hold a rally in March 2006. The Oasis Forum, which advocates the repeal of the Public Order Act, has faced attempts to dissuade its members from holding demonstrations, but has not been denied a permit when it has applied. At least since 2001, Zambian protests have been predominantly peaceful affairs.

Recommendations

• The government should mobilize public prosecutors to pursue cases against police officers suspected of torture and brutality, and launch a public awareness campaign focusing on the rights of citizens with respect to detention and criminal charges.
• The government should construct new prisons and rehabilitate existing facilities to accommodate the surging inmate population, while employing alternatives to imprisonment for nonviolent offenders.
• The government should modify the constitution to ban all forms of discrimination against women, including in matters of divorce, custody, and inheritance.
• The police should increase the funding of Victim Support Units. The number of the units should be increased, and more resources should be devoted to publicizing their role.
• The National Assembly should modify or repeal the Public Order Act to allow spontaneous demonstrations.

Rule of Law – 4.15

Independent judiciary: 5.00
Primacy of rule of law in civil and criminal matters: 3.33
Accountability of security forces and military to civilian authorities: 4.75
Protection of property rights: 3.33
Equal treatment under the law: 4.33

The independence of the judiciary remains fairly strong in Zambia. Although the constitution endows the president with the power to appoint and dismiss judges, the judiciary is relatively free of political, religious, and ethnic influence. The Mwanawasa administration did not exercise its authority to dismiss sitting judges in the 2005-06 period, and the government generally complies even with unfavorable judicial decisions.

The judiciary is constrained by economics, however. The country's poverty and lack of budgetary resources cause absenteeism among court officials (including judges) due to outsized caseloads, moonlighting and sickness leaves; these factors result in extended trials, detentions, and an overall slowdown of the legal process. The economic conditions of the judiciary were brought into sharp relief when magistrates went on strike in 2006, citing low pay and benefits.²⁵ Although the University of Zambia and Evelyn Hone Technical College both offer degree programs in legal and paralegal studies, more specific job-related training within the judiciary tends to rely on donor funding, which can be sporadic. Moreover, many lawyers trained in Zambia end up working in South Africa or Botswana, where professional remuneration is higher.

Although the courts have demonstrated a tendency to treat people of all ethnicities, religions, and nationalities equally, economic differences have created the conditions for unequal treatment. High-profile cases involving wealthy defendants are likely to get swifter attention than others. Economic disparities in society, paired with an overburdened judiciary, provide ample opportunities for undue financial influence on judicial rulings, although no such instances have been reported since the resignation of Chief Justice Matthew Ngulube for allegedly accepting bribes in 2003.

Under the constitution, defendants are considered to be innocent until proven guilty in court. Defendants have a right to legal aid when they cannot afford representation, but are often constrained by the scarcity of available counsel. The constitution explicitly declares that the government is not responsible for paying state-provided counsel. The activity of NGOs has partially filled the void left by the inadequacy of the government's legal aid office, and in the past two years the Ministry of Justice has worked to expand the traditionally government-staffed legal aid program to incorporate greater participation by professionals in private practice.²⁶

The military and police do not exert political control over the judiciary. Indeed, the military has tended to stay out of politics more generally in Zambia, which has not experienced a coup in its 43 years of independence. Officers of the law have exhibited poor levels of respect for human rights, however, as noted above. Police are at best infrequently prosecuted for illegal or unduly violent acts committed in the course of duty. Police officers are also regularly cited in news reports for pursuing personal agendas in violent and intimidating ways.²⁷ Still, the police and military remained admirably impartial during the political campaigns and elections of 2006, contributing to the smooth execution of the balloting itself. One report was filed with the Legal Resources Foundation of a military officer claiming harassment by superior officers for his failure to support a particular political party.²⁸

The state has placed an increased emphasis on property rights in recent years, and the judiciary is generally adequate in its enforcement of such rights. Conflicts have arisen between traditional authorities and the state over the allocation of land to foreigners, including immigrant farmers from South Africa and Zimbabwe, and in one case the government of Libya.²⁹ In March 2007, in an action not seen since the Kaunda era, the government moved to demolish untitled (and therefore "illegal") settlements around the country, starting in Lusaka.³⁰ No compensation was provided to residents. Insofar as many of the targeted areas are slums on the outskirts of cities, where opposition to Mwanawasa and support for the Patriotic Front's Michael Sata is high, the demolition campaign has at least the appearance of political motivation and is likely to stoke political tensions.

Recommendations

• Article 96 of the constitution, which allows the president to revoke judicial appointments without justification, should be amended to permit only narrow and specific grounds for dismissal, such as proven corruption, criminal conviction, or incapacitation.
• The government should take concrete measures to reduce judicial absenteeism, including incentive-based remuneration for all court employees.
• The government should provide more state funding for the legal representation of indigent defendants who face possible jail time.
• The authorities should halt slum demolitions and instead pursue a program to grant legal property titles to residents.

Anticorruption and Transparency – 3.46

Environment to protect against corruption: 3.20
Laws and ethical standards between private and public sectors: 3.75
Enforcement of anticorruption laws: 3.75
Governmental transparency: 3.14

President Mwanawasa has placed anticorruption efforts at the center of his administration's agenda, beginning with his politically costly pursuit of his predecessor, Frederick Chiluba. The primary vehicle for this effort has been the Task Force on Economic Plunder, an ad hoc body comprising members of standing organs such as the Anticorruption Commission and the Drug Enforcement Commission. The task force has drawn criticism for failing to produce convictions of high-profile officials (including Chiluba, whose trial appears to be on hiatus due to health issues) and for being vulnerable to political pressure from the president.

In 2005, a case involving a former Health Ministry permanent secretary accused of misusing public funds provided the task force with an opportunity to assert its independence. The official had recently voiced his support for Mwanawasa, who in turn ordered the chief prosecutor of the task force to drop the case. The prosecutor refused and ultimately secured a conviction.³¹ The incident served to raise the credibility of the body among those who suspected it might be a mere vehicle for political vendettas, although it also highlighted the uncertainty over the task force's legal grounding. Without addressing its legal status, Mwanawasa extended the mandate of the task force indefinitely in January 2007.³²

To date, most of the task force's attention has been focused on Chiluba-era activities. However, in a move signaling that the current administration is not immune from scrutiny, Mwanawasa fired his minister of lands in February 2007 after discovering that she had distributed state property to members of her family.³³ The dismissal sends a strong message that the use of public office for private gain will not be tolerated. Zambia also has asset-declaration measures for public officials. These apply to the president (via the constitution) and to government ministers and deputy ministers (via the parliamentary and ministerial code of conduct). Nonministers, permanent secretaries, and members of the judiciary are not required to disclose their assets, liabilities, and incomes. While compliance with the procedures is a matter of public record, the asset-declaration provisions are weakened by the difficulty members of the public face in obtaining copies, and by the absence of a verification mechanism.³⁴

The administration has had less success extending its anticorruption message to lower levels of the government. Indeed, while the focus on grand corruption is laudable, it runs the risk – in a world of limited resources – of succeeding at the expense of efforts to control petty corruption. Even though the state holds fewer economic assets than it did during the Kaunda years, the legacy of several decades of state domination of the economy is a veritable culture of regulation. With it comes an expectation that virtually any public act requires advance permission or approval by the government. The World Bank's International Finance Corporation found that it would take 6 procedures and 35 days to start a business in Zambia, and 16 procedures and 196 days to legally begin to construct a warehouse.³⁵ Although corruption was not formally accounted for in these calculations, each step represents a potential opportunity for bribery demands. Private individuals are affected as well: a 2005 survey by Transparency International (TI) Zambia found that 79 percent of Lusaka residents believed "a service could be provided only if one paid something for it."³⁶ Although legal recourse for victims of corruption exists, many judge the hassle of pursuing it to be too great, particularly without any guarantee that additional layers of corruption will not impede their efforts. The same TI survey found that the courts themselves were perceived as moderately corrupt.³⁷

A 2006 TI report showed that petty corruption had increased over the course of the Mwanawasa administration.³⁸ In the 2005 survey, respondents rated the police and the Roads Office as the most corrupt government services. Over half of the respondents reported having been asked for a bribe at a police roadblock.³⁹ In that context, an April 2005 decision by the Lusaka police to cease most roadblocks in the city is notably positive.⁴⁰ Schools were rated as significantly less corrupt, although respondents did cite the need to make informal payments to headmasters to reserve a school placement.

Mwanawasa's intention to make fighting corruption a priority has created something of a paradox for the Task Force on Economic Plunder and the more conventional institutional tools to be employed in the effort. Mwanawasa has sought to exert presidential control over officials and institutions such as the director of public prosecutions, the auditor general, the Anticorruption Commission, the Drug Enforcement Commission, and the investigator general. While the multiplicity of actors may suggest an expansive effort to fight corruption, it also makes possible the politicization of the effort, in that Mwanawasa can focus on the body or bodies that he feels will support his agenda. Thus the Drug Enforcement Commission has played an increasingly large role in anticorruption efforts, while the investigator general's Commission on Investigations, which serves an ombudsman's role in Zambia, has been largely absent from the fight. Insufficiently funded and decentralized, the investigator general's office is an ineffective tool for civil society to hold the government accountable. Whistleblowers in Zambia are not protected by law, a situation that may also detract from ground-up efforts to combat corruption.

Finally, citizens generally lack access to information about government officials and spending policies. As noted earlier, the government has considered a Freedom of Information bill for several years, but in late 2006 the government decided against putting the bill before parliament.⁴¹ The public has, in theory, access to information about the government's budget and the bidding process for government contracts. The budgeting process is primarily controlled by the government – that is, the president and his cabinet – and parliamentary input is relatively scant. Press reports on budgetary presentations suggest little alteration between the president's budget proposal and the final version approved by the National Assembly. Information about revenues and spending is difficult to obtain, particularly in a timely manner. A significant portion of government funds come from outside aid, which is treated as off-budget and is therefore less transparent than normal spending. As most dissemination of budget information is carried out via the internet, access is limited to relatively wealthy citizens with computers and internet connections. Oral dissemination of the type of fiscal information described above (or, indeed, of almost any element of government's workings) would serve the blind, illiterate, and those without internet access, but no such effort has been undertaken.

Recommendations

• Asset, liability, and income declaration requirements should be expanded to include all members of parliament, permanent secretaries, judges, and magistrates. Anticorruption Commission resources should be employed to publicize and verify those declarations.
• The police should reduce the number of roadblocks and checkpoints nationwide, maintaining only those for which there is an active need to detect smuggling.
• The National Assembly should enact legislation to protect whistleblowers.
• The government should elevate the profile of the investigator general and the Commission on Investigation through a publicity campaign that gives citizens a greater awareness of their roles, their responsibilities, and the tools available to them in fighting corruption.
• The National Assembly should debate the Freedom of Information bill and clear a robust version for the president's signature.

Author

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

Notes

1 Source: author's calculation using World Development Indicators Online Edition, http://ddp-ext.worldbank.org/ext/DDPQQ/member.do?method=getMembers, accessed May 15, 20

2 Data for 2004. Source: author's calculation using World Development Indicators Online Edition, http://ddp-ext.worldbank.org/ext/DDPQQ/member.do?method=getMembers, accessed May 15, 2007.

3 The exception, of course, is 1991, when the MMD unseated UNIP in Zambia's return to multiparty politics. Since then, however, the MMD used its rule-making abilities and access to state resources to its advantage in 1996 and 2001. Prior to 1991, UNIP's prohibition on opposition parties represented the ultimate in incumbency bias.

4 Media Institute of Southern Africa, "MISA Highlights Bias in News Coverage Ahead of Local Elections," news release, September 27, 2006, http://www.ifex.org/en/content/view/full/77378/.

5 Bivan Saluseki, Nomusa Michelo, and Kwenda Paipi, "PF Cadres and Police Clash Over Election Results," Post of Zambia, October 1, 2006.

6 For example, see Isabel Chimangeni, "State Blows Lid Off Coalition 2005 Plot," Times of Zambia, December 31, 2004; "Silavwe Slams NGO's Dependency Syndrome," Times of Zambia, December 12, 2004.

7 See Reporters Without Borders, "Police Launch Manhunt before Finally Arresting Editor Who Criticized President," news release, November 10, 2005.

8 See Committee to Protect Journalists (CPJ), "The Post Censored," June 15, 2005; CPJ, "Fred M'membe, the Post Harassed," June 29, 2005, http://www.cpj.org/cases05/africa_cases05/zambia.html.

9 See Media Institute of Southern Africa, "Police Question 'Radio Phoenix' Talk Show Host," news release, June 2005; Bivan Saluseki, "CPJ Doubts Zambia's Commitment to Freedom of Expression," Post of Zambia, June 29, 2005.

10 See Media Institute of Southern Africa, "Television Crew from State-Owned Broadcaster Harassed by Crowd at Opposition Rally," news release, September 13, 2006, www.ifex.org/en/content/view/full/77019/; Media Institute of Southern Africa, "Photojournalist Harassed at Press Conference by Opposition Party Supporters," news release, May 29, 2006, www.ifex.org/en/content/view/full/74727/.

11 Noel Sichawe, "Court Awards Sata Injunction Against Zambia Daily Mail," Post of Zambia, August 30, 2006.

12 "State Wins Media Case," Times of Zambia, March 16, 2007.

13 See Amnesty International, "Zambia Overview," Report 2006 (London: Amnesty International, 2006), http://web.amnesty.org/report2006/zmb-summary-eng.

14 The Legal Resources Foundation's online newsletter, back issues of which are available at www.lrf.org.zm/newsarchives.htm, features many examples of each of these. For an example of torture, see "Ndola Police Officers Torture Suspect," LRF Newsletter, August 2005, www.lrf.org.zm/Newsletter/august2005/ndolapolice.html. For an example of overzealous apprehension methods, see "Chisamba Cops Shot Man in the Arm," LRF Newsletter, October 2005, www.lrf.org.zm/Newsletter/october2005/chisambacops.html. For an example of malicious abuse of authority by police, see "L/stone Cops Batter Woman Over Brother's Case," LRF Newsletter, June 2005, www.lrf.org.zm/Newsletter/june2005/lstone.html.

15 See Bivan Saluseki, "Mumbuwa Bemoans Overcrowding in Prisons," Post of Zambia, April 16, 2006.

16 Speedwell Mupuchi, "Prisons Commissioner Urges Judiciary to Review Prisons' Sentencing Policy," Post of Zambia, January 18, 2006.

17 See, for example, "Juveniles Sodomised at Kamfinsa," LRF Newsletter, December 2004, http://www.lrf.org.zm/Newsletter/december2004/juveniles.html.

18 See McDonald Chipenzi, "Police Charge Dr. Scott," Post of Zambia, January 19, 2006.

19 See "ZAMBIA: More Than 10 Girls Raped Every Week," IRIN Reports (Nairobi: UN Office for the Coordination of Humanitarian Affairs, November 27, 2006), www.irinnews.org/report.aspx?reportid=61665.

20 Trafficking in Persons: Global Patterns (New York: United Nations Office on Drugs and Crime, April 2006), www.unodc.org/pdf/traffickinginpersons_report_2006ver2.pdf.

21 See "Permsec Condemns K2m Fine on Human Trafficker," Times of Zambia, June 15, 2005.

22 See Dickson Jere, "Anti-Chinese Sentiment High in Zambia," Independent Online (IOL), February 1, 2007, www.iol.co.za/index.php?set_id=1&click_id=68&art_id=qw1170317160274B252.

23 See Brighton Phiri, "Bishop O'regan Blames Govt for Chambishi Deaths," Post of Zambia, April 25, 2005.

24 See Zambia: Tripartite Elections, September 2006 (Oslo: University of Oslo, Norwegian Centre for Human Rights, Norwegian Resource Bank for Democracy and Human Rights, Report 17/2006, December 2006).

25 Mwala Kaluka, "Saki Urges Govt to Be Proactive in Resolving Workers' Grievances," Post of Zambia, October 6, 2006.

26 See "State to Provide Free Legal Services to Needy Citizens," Times of Zambia, March 10, 2007.

27 See, for example, Monica Kunda, "Mansa Cop Beats Man Over Ex-Girl Friend," LRF Newsletter, January 2006, www.lrf.org.zm/Newsletter/january2006/mansacopbeatsman.html; Madube Pasi Siyauya, "Kalomo Cop Rapes Woman," LRF Newsletter, May 2005, www.lrf.org.zm/Newsletter/may2005/kalomo.html.

28 Madube Pasi Siyauya, "Army Harasses Soldiers For Supporting Opposition," LRF Newsletter, October 2006, www.lrf.org.zm/Newsletter/october2006/army.html.

29 Alfarson Sinalungu, "Allocation of Land to Libya Is Questionable – Miyanda," Post Of Zambia, May 25, 2005.

30 See "Zambia Demolition Campaign Begins," BBC News Online, March 10, 2007, http://news.bbc.co.uk/2/hi/africa/6438339.stm.

31 "Former Health Secretary Jailed for Corruption," Times of Zambia, February 22, 2007.

32 "Task Force on Corruption Mandate Extended," Times of Zambia, January 10, 2007.

33 Chris Mfula, "Zambia Investigates Suspect Land Deals," IOL/Reuters, March 2, 2007, http://www.iol.co.za/index.php?click_id=68&set_id=1&art_id=nw2007030212….

34 Alfred Chanda, "Position Paper on Disclosure Laws in Zambia" (Lusaka: Transparency International [TI] – Zambia, February 2005), www.tizambia.org.zm/download/uploads/POSITION_PAPER_ON_DISCLOSURE_LAWS_…, accessed March 1, 2007; alternative web location: http://209.85.165.104/search?q=cache:Z-5amaaazC0J:www.tizambia.org.zm/d…
uploads/POSITION_PAPER_ON_DISCLOSURE_LAWS_IN_ZAMBIA.pdf+disclosure+
zambia+chanda&hl=en&ct=clnk&cd=4&gl=us, accessed May 18, 2007.

35 International Finance Corporation, "Doing Business: Explore Economies: Zambia," www.doingbusiness.org/ExploreEconomies/Default.aspx?economyid=207, accessed May 18, 2007. Zambia rates more favorably than the average of its Sub-Saharan African peers but well below that of the OECD countries.

36 Musonda Lemba, "Opinion Poll on Lusaka Residents' Perception of Corruption" (TI-Zambia, January 2005), 12, http://www.tizambia.org.zm/download/uploads/OPINION_POLL_ON
_LUSAKA_RESIDENTS_PERCEPTIONS_OF_CORRUPTION.pdf.

37 Lemba, "Opinion Poll," 10.

38 Darlington Mwendabai, "TIZ Findings Show Increase in Petty Corruption," Times of Zambia, May 4, 2006.

39 Lemba, "Opinion Poll," 11.

40 "Lusaka Police Halt Roadblocks," Times of Zambia, April 18, 2005.

41 McDonald Chipenzi, "Freedom Of Information Bill Won't Be Tabled Soon, Says Mwaanga," Post of Zambia, February 16, 2006.