In the past, the judiciary and other political institutions have displayed independence in relation to the president. The government has generally respected Zambia’s free press.
So how are we supposed to understand Hichilema’s arrest? Is this a minor aberration — or a serious indication of democratic deterioration?
It is too early to tell what the consequences of the charges against Hichilema will be. On April 11, he was charged on three counts. He was subsequently acquitted on one count — using insulting language against police officers. Still pending is a verdict on the more serious charge of treason.
Although the Lusaka Magistrate Court found that the treason charge had no substance, the magistrate refused to dismiss the case, citing that only the High Court had the right to do so. Treason charges do not permit bail, so Hichilema remains in police custody. Further hearings have been adjourned until May 22.
Zambia’s democracy is showing other cracks
There’s more to this story, though. Observers of Zambian politics have identified a much broader process of democratic erosion and government repression in Zambia, where the independence of political institutions have been undermined. Here are some examples:
Zambia’s 2016 elections turned into a controversial affair, with allegations of fraud and unprecedented levels of violence. The incumbent, President Edgar Lungu, benefited from undue financial and legal advantages. Hichilema, the opposition candidate, challenged the results in court, but the petition was ultimately thrown out on a technicality. And there was an added dispute — the president had appointed a number of controversial judges shortly before the election, bringing into question the Constitutional Court’s independence.
The state also attacked the independent media, while the official state media remained heavily biased in favor of the incumbent. When the Zambia Revenue Authority closed down the pro-opposition Post Newspaper last year, due to unpaid taxes, it silenced a voice that was critical of the incumbent regime. The timing, in the midst of a closely fought election campaign, seemed highly suspicious to many observers and international actors.
Civil society groups have also found themselves under attack. The government has tried to meddle in the internal affairs of the Law Association of Zambia (LAZ), an outspoken critic against the breakdown of the legal order. In a controversial move, lawyers with close association to the ruling party tried to impeach the LAZ council and its president.
The 2016 constitution augmented these problems
Perhaps the most severe recent blow to Zambian democracy is the 2016 amended constitution. The constitution was enacted just a few months before the general election with limited consultation with the opposition and civil society. A number of Zambia’s presidents had recognized the need to replace the 1996 constitution, which concentrated significant amounts of power in the executive. Previous efforts to amend the constitution had failed — perhaps in part because it wasn’t really in their interests to change this.
However, the 2016 constitution did nothing to increase the separation of powers. On the contrary, it extended the president’s powers. For instance, the 2016 constitution entitles Zambia’s president to make virtually all important appointments including, for instance, commissioners to the electoral commission and judges to the Constitutional Court. It grants the president powers to change administrative divisions, a frequent tactic in Africa to indirectly shift electoral boundaries. The new constitution also permits the president to dissolve parliament.
The amended constitution was enacted with surprisingly little resistance from the opposition and civil society. International actors voiced no serious concern over the content of the constitution and the debate surrounding the constitution focused on some minor changes to the electoral system.
The constitution is also vague on Lungu’s legal right to seek reelection for a third term. Lungu came to power through a by-election in 2015 and was reelected for a full term in 2016. Whether Lungu’s abbreviated first term should count toward the two-term limit is disputed. Lungu has indicated he intends to run again in 2021.
Zambia is not the only democracy under attack
These problems, however, suggest Zambia is not that dissimilar to other countries experiencing democratic erosion. In Hungary, for instance, President Viktor Orbán has concentrated power by undermining civil society, academia and the free press. Similarly, democracy in Recep Tayyip Erdogan’s Turkey has deteriorated to such an extent that the country can no longer be considered democratic.
So Zambia, Hungary and Turkey all exemplify the ways in which democracy tends to fall apart in the 21st century. In the past, coups used to be the most imminent threat against the survival of democracy, but Zambia and other cases illustrate how democracy can suffer gradual deterioration. The independence of democratic institutions is slowly chipped away while presidential powers are extended.
Levels of repression in Zambia may decline, the charges against Hichilema may be dropped, and attacks against civil society and the media may become less frequent. Nevertheless, the damage to Zambian democracy through formal changes to its legal institutions will not be easily undone. Institutions unfairly favoring those in power tend to survive, even in states that are formally democratic and reasonably competitive. Politicians, in developing and developed countries alike, cling to provisions that increase their prospects to remain in office.
Is it now too late for international concern to have an impact? Zambian civil society will need support from international actors and donors to prevent further democratic deterioration. Any attempts to solve the crisis will have to deal with the root causes of the current crisis — the country’s biased political institutions and inadequate constitutional framework.
Michael Wahman an assistant professor in the Department of Political Science at the University of Missouri, specializes in elections, democratization and African politics. Follow @miwahman.