Like in many other countries, in Zambia, the constitution elaborates on succession in the case of a president’s death. From Section 38 of the 1996 constitution:
If the office of the President becomes vacant by reason of his death or resignation or by reason of his ceasing to hold office by virtue of Article 36, 37 or 88, an election to the office of the President shall be held in accordance with Article 34 within ninety days from the date of the office becoming vacant. Whenever the office of the President becomes vacant, the Vice-President or, in the absence of the Vice-President or if the Vice-President is unable, by reason of physical or mental infirmity, to discharge the functions of his office, a member of the Cabinet elected by the Cabinet shall perform the functions of the office of the President until a person elected as President in accordance with Article 34 assumes office.
Essentially, the vice president assumes the presidency, but only for 90 days — at which time a special election is held for presidential office. This procedure was followed in the wake of president Mwanawasa’s death just six years ago. His vice president, Rupiah Banda, became acting president and an election was held within 90 days. Banda won that election and served out the remainder of Mwanawasa’s term, after which he lost reelection in 2011 to the now-deceased Sata. Reports from Zambia Wednesday are that Sata’s vice president, Guy Scott is now acting president.
Much of the focus on the elevation of Scott to the presidency in Zambia has been his race. Many reputable news agencies reported that Scott is the first white leader of an African country since F.W. de Klerk, who ruled South Africa until the end of apartheid in 1994. (They’re wrong by the way: Scott might be the first white president, but there was a white prime minister in Mauritius between 2003 and 2005.)
Scott’s identity matters insomuch as it relates to his ability to claim he is “Zambian.” In discussions on social media before the announcement was made that Scott would become acting president, some questioned whether he was eligible. In fact, the same reputable news agencies reporting on Sata’s death claim Scott is ineligible because his parents were not born in Zambia.
Analysts are referring to the “parentage clause” in Zambia’s constitution, which requires of presidential candidates that “both his parents are Zambians by birth or descent” (see Section 34, 3b). The parentage clause was amended to the constitution in 1996 during former President Frederick Chiluba’s tenure. Some attribute Chiluba’s push for the parentage clause as a way to keep Kenneth Kaunda (a previous Zambian president) from challenging him in the 1996 elections.
Chiluba won the 1996 elections, by a landslide (Kaunda didn’t run). Shortly after, however, he faced a challenge to his presidency based — ironically — on the parentage clause he had promoted. The challenge culminated in a Supreme Court case, Lewanika and Others v Frederick Jacob Titus Chiluba (Constitutional Jurisdiction), during which the citizenship of Chiluba’s father was brought into question. The Supreme Court ruled that Chiluba could remain in office. As one Zambian legal scholar points out, the Lewanika v Chiluba ruling is significant:
The Supreme Court…ruled that even if Chiluba’s father were a Zairian or a Mozambican; Chiluba would still satisfy the constitutional requirement of having parents being “Zambian by birth or descent”… First, the Supreme Court erected a wall of citizenship and held that the republic of Zambia was actually created on 24 October 1964. Having been so created on this date, those who were ordinarily resident in Zambia on this day became citizens of Zambia. For such people, there is no need to inquire into the citizenship of their parentage, as none of their parents would qualify as “Zambians” because there was no nation called “Zambia” before that. Second, the Supreme Court ruled that the requirement for “Zambian citizenship” might make sense later in the history of Zambia. But even then, it would still create problems for the future of Zambia. Third, the court then dealt with racial issues. They made it clear that an assumption that the constitution deliberately discriminates against whites or Chinese does not make sense.
Though Scott’s parents were not born in Zambia, if the precedent set by Lewanika v Chiluba matters at all, Scott should be eligible to run for the presidency. Nevertheless, he’s stated in at least one interview that he won’t run, though he did so in the same breath of saying he’s constitutionally ineligible.
I expect the transition to Scott as acting president will go as constitutionally stipulated, if with a few grumbles from others who have been jockeying for power during the last few months of Sata’s presidency. My expectation is based on the data on presidential successions in Africa since independence, which I analyzed in an article with Boniface Dulani. In our examination of the 51 deaths in office of African leaders from 1960 to 2012, we saw that after the re-introduction of multi-party competition in the 1990s, there was a greater likelihood that presidential succession would follow constitutional processes. While only a third (35 percent) of the successions associated with an incumbent’s death in the pre-1990 period were constitutional, over half (56 percent) of the death-in-office successions after 1990 followed constitutional processes. In addition to the continental trend of constitutional succession procedures, Zambia has recent experience with presidential death-in-office, which followed constitutional procedures.
Based on my research with Dulani, what is more important about this succession in Zambia is not the procedures following Sata’s death — but the institutional mechanisms for deciding when the president is incapacitated due to ill health and should be succeeded in office. Sata, like Mwanawasa before him, was rumored to be in ill health for quite some time. In Zambia, there are constitutional stipulations for presidential ill health, but they were not enacted during Mwanawasa’s illness nor during Sata’s. The constitution states that the cabinet can instruct Zambia’s chief justice to request a board of doctors to investigate the president’s capacity to carry out his responsibilities and if the board deemed the president incapacitated, the constitution requires a two-thirds vote by the National Assembly endorsing the vice president to assume the presidency and a presidential election to be scheduled for within 90 days.
Dulani and I wrote about the challenge in Zambia of the ruling party in dealing with Mwanawasa’s ill health: people were reluctant to openly discuss the president’s health, as doing so would have exposed a power struggle. When one minister suggested the ruling party look for a successor following Mwanawasa’s stroke but before his death, party leaders and Mwanawasa’s family condemned his remarks, and he faced disciplinary measures in the party.
Part of the problem in Zambia is an absence of pressure from the wider society to do something about a president’s ill health, which means a transfer of power will only occur after an incumbent dies. The largest media agencies in Zambia are state-run — and these were late in announcing Sata’s death, and to my knowledge, never wrote about his ill health before his death. Sata’s death in office thus raises questions about the independence of the media in Zambia and the rising role of “gossip” news in informing the Zambian public and others interested in Zambian politics.