The current constitution of Zambia is largely a representative constitution guaranteeing basic freedoms to the people while entrenching in the nation’s ruling system an unfettering commitment to a multi-party democratic system. Undeniably, while our current constitution was enacted in 1991 with some amendments in 1996, it is safe to say that although some disagreements persist about some provisions of this constitution it remains mainly democratic.
The 1991 constitution unbanned political parties and reformed the 1972 provision that entrenched UNIP as the sole political party. It is rather interesting, though, that although Zambia transitioned into a democracy in 1991, much of its laws were retained from the one-party system, which in fact inherited its laws from the colonial government. As such, legislation in a democratic Zambia governing basic liberties such as freedom to assemble, freedom of religion, public order, registration of societies and things like that was in fact thoroughly inherited from the Era of colonial dictatorship and one party dictatorship. It is in this light that at least two pieces of legislation should be seen: The Public Order Act and the Societies Act.
Whereas Zambia is constitutionally a democracy, in terms of legislation, some of its laws were antithetical to the democratic ideals espoused by the constitution. Indeed, as a young nation much of our laws have not kept pace with our democratic ideals. Our parliament has also not acted quick enough to change legislation – enacted in the colonial era and continued in the Kaunda Era – which was inimical to democratic foundations.
Kenneth Kaunda inherited the Public Order Act and indeed the Registration of Societies Act from the colonial government. After independence, he used the same colonial laws to asphyxiate dissent and entrench himself as dictator. As Prime Minister in 1963, he used the Societies Act to de-register Alice Mulenga Lenshina’s Lumpa Church. Further, he used national security arguments to imprison members of this church.
Additionally, using the Societies Act, Kaunda banned Simon Kapwepwe’s United People Party (UPP). He also used this law to ban the registration of new churches. As such, the new Pentecostal or evangelical churches couldn’t register with the Registrar of Societies. Coupled with a state of emergency, basic liberties of citizens where restricted.
However, after the fall of the Kaunda regime and the transition to democracy, Zambia changed the constitution but both the Societies Act and the Public Order Act essentially remained unchanged. Therefore, there was rupture between what the constitution provided for and what these two pieces of legislation provided. Democratically elected President Chiluba and his colleagues used these two pieces of legislation to their advantage and to stifle dissent. Obviously, there were some obvious changes in the Chiluba regime of course. Registration of churches was unbanned and political parties were free to register.
Nevertheless, without clear legislative reforms that would change both the Public Order Actand the Societies Act, the new democratic government under a new democratic constitution was likely to falter. Indeed, in 1996 Chiluba’s government faltered. They used the Public Order Act to stop Kaunda from addressing a campaign rally. What is quite interesting with this legislation is that it was the same Act Kaunda had used for years to repress dissention and imprison opponents. Nevertheless, after he lost power to a democratic movement, Kaunda knew that this piece of legislation was meant for a one-party dictatorship and not for a democratic state after 1991. He petitioned the High Court about the Public Order Act. The High Court ruled that the Act’s demand for people to get police permission to assemble was unconstitutional. Kaunda had won a major victory for the democratic future of Zambia. Chiluba obliged and his government amended the Public Order Act. In practice, however, it seems both the police and the public seem to operate under the old law.
In the absence of clear legislative reforms to bring much of our laws in conformity with the constitution, the courts of law were going to fill the gap. Indeed the courts reformed quite fast. They by practice upheld the constitution over any piece of legislation that contradicted the constitution. However, in our legal system, courts can only rule on matters brought before them. As such, in the cases brought before them, both the High Court and the Supreme Court were quick to remind both the government and the public that constitutional freedoms must be protected. The courts had noted that all legislation that was inherited from the Colonial Era or from the One-Party Era must be interpreted, in the Third Republic, within the purview of democratic values. The Executive or officers that exercise statutory powers must do so in a democratically fair manner. This has ably been addressed by the courts in several court cases, two of which involve the Universal Church of the Kingdom of God (UCKG).
The UCKG had been a victim of a State “deregistration” twice before. It was first proscribed under the Chiluba and secondly, at the hand of Mwanawasa. In August 1998, Minister of Home Affairs Peter Machungwa banned the UCKG when it was rumoured that it was engaging in satanic activities. After the High Court sided with the Minister, on appeal the Supreme Court reversed the High Court and held that the minister’s decision to ban the UCKG infringed on the rights of Zambians to belong to any religious institution of their choice. The Supreme Court of Zambia further held that freedom of religion was sacrosanct and that the state had misguided itself. In 2005, the Zambian government again to deregistered the UCKG and deported its pastor. However, in January 2006 the High Court working on the Supreme Court precedence overturned the Zambian government’s decision and allowed the Church to continue operations.
Again, during the Mwanawasa administration, a civil society organization known as SACCORD was deregistered by Home Affairs Minister Ronnie Shikapwashya. Shikapwashya cited his powers under the Societies Act. The courts again ruled against Shikapwashya.
It is clear that after 1991, there is a clear jurisprudence developing in the so-called “deregistration of societies.” Further, from this history and indeed from CAP 119 Societies Act of the Laws of Zambia, the minister is empowered to proscribe a registered society. However, even if the minister exercises this power, it is subject to checking by the courts of law. Clearly, the courts have been very reluctant after 1991 to allow for banning of societies. What is even more interesting is that courts are upholding the right of these societies to exist even if the government argues for national security reasons, as was the situation in the SACCORD case.
The current de-registration of the MMD by Registrar-General Clement Andeleki is likely to fail. In view of this jurisprudence, the courts would be very reluctant to proscribe the MMD. This is first, because Clement Andeleki simply does not have the powers under CAP 119 of the Laws of Zambia to do what he did. CAP 119 only empowers the minister to proscribe. Second, even if the minister indeed invokes these powers courts would be reluctant to make decisions that would erode Zambians’ democratic rights. In the case of UCKG, the courts said that banning it would infringe the freedom of worship for the members of this Church. In case of the MMD, the similar can be argued. Banning the MMD would infringe MMD members’ rights of association. In fact, as a political party that has representation in parliament, banning it would infringe citizens of representation.
If there is something we can learn from Alice Lenshina, it is the fact that CAP 119 and the Public Order Act can be used quite successfully to ban some societies. Nevertheless, as we move on from the colonial era to the democratic era the courts become increasingly reluctant to allow for wholesale banning of societies. For now, Registrar Andeleki is adamant about his decision to de-register. But I just hope, the Bemba saying that “munshebwa aile nama shinsha kubuko” will not apply to him after the courts have had their say on the issue. And likely, the courts will follow their jurisprudence!