The President’s proposed Commission of Inquiry into Election Violence

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President Lungu inspecting a guard of honour during his inauguration. Photo: Jean Mandela

President Lungu inspecting a guard of honour during his inauguration. Photo: Jean Mandela

By Dr. Munyonzwe Hamalengwa

During his inauguration Speech on September 13th, 2016, as President of Zambia after a much disputed election result with continuing legal and political reverberations, the President promised to convoke a Commission of Inquiry into the spate of violence that accompanied this election.

Every person must welcome this commission of inquiry because if it is done justly, it will heal the nation and cure the deepest divisions this election cycle has riven into Zambian society. The justness of the proposed inquiry will be a test as to whether Zambia will move forward, United or Divided(capitals for emphasis).
There are a number of caveats as to whether this inquiry will be just or unjust. Look to the terms of reference and mandate first. What will it do and why? From the mandate and definitions, you can tell where the commission will go and what is expected. You can even tell what the result will be.

Secondly, who will be the Chairperson and who are the commissioners and what is the composition and distribution of this commission? Will this commission include individuals from the government as well as the opposition, from labour, civil society,lawyers, human rights non-governmental organizations etc, will it include foreigners, retired judges, retired law enforcement officers, professors, students, religious figures etc.

From the Chairperson of the inquiry and its composition, you can tell what the purpose of the commission is and what it’s likely result is.
There have been so many commissions of inquiry around the world that convoking one in Zambia will not be novel or break any new grounds. A commission of inquiry can be neutral, it can be restorative, and bring about truly restorative justice, it can be offensive against certain individuals or it can be defensive to prevent future inquiries and or justify previous, present or future actions. A commission of inquiry can have sinister or liberating motivations.

In the experiences of the over 100 commissions of inquiry in the recent past from all over the world, one can tell what inquiry was engineered for sinister or liberating purposes. The literature is vast. A Zambian Commission of inquiry into election violence will be guided by the existing vast literature, it doesn’t have to reinvent the wheel by sending teams to visit this country or that country to examine what they did.

A good library or a good click on the computer should do. No need to repeat the disasters of constitutional commissions that went all over the world to study other constitutions and produce nothing but squander millions of Kwacha in tourism and sightseeing by the commissioners. Sightseeing is very good but use your own money and not tax-payers’s money.

The best commission of inquiry that has been heralded by the entire world and on which many recent inquiries have been modelled on is the Truth and Reconciliation Commission of South Africa. I know because my PhD dissertation was on apartheid criminals and the Thesis resulted in a book entitled, “Getting Way With Impunity: International Criminal Law and the Prosecution of Apartheid Criminals”. In preparation for the Thesis, I had to read vast amounts of literature on commissions of inquiry.

The inquiry of course had its own problems but the positive side is that it tried to inquire into all sides of the spectrum of violence. No one was spared. The terms of reference were neutral. The motivation was not predetermined. The Chairman was Bishop Desmond Tutu who no one could accuse of having written the report before the hearings even started as is the perception on many Chairpersons of such commissions. The composition included a broad and fair-minded cross-section of body of commissioners. The government consulted widely before naming the commissioners.

The Commission was empowered to investigate the role of apartheid government, police, army, the judiciary, the media, the anti-apartheid movements and so on in fomenting violence during violence. The aim was to heal and not to reopen the deep wounds of apartheid while at the same time not letting proven criminals who did not confess, get away with murder. The jury is still out on the extent to which the commission succeeded. The measure of success is that South Africa is still holding together despite its problems but it did not explode into racial bloody violence as had been feared or expected.

Of course Mandela was at the helm. It is very difficult to reproduce another Mandela to stir the ship of state in difficult moments of transition. But a fair result by the commission of inquiry is doable and possible.

Zambia claims to be a Christian nation. If this is really true, then one doesn’t have to look to other countries’ commissions of inquiry for inspiration. One can simply pick up the Bible. I find that the book of Proverbs provides all one needs for a successful commission of inquiry.

Solomon stated that the book of Proverbs provides insights into Wisdom, Justice, Judgment and Equity. These are necessary building blocks for a successful commission of inquiry into election violence. The definitions of these terms follow:
What is wisdom? It is the power of right judgment. It is the analytical ability to fully discern a dilemma or situation and correctly conclude the right attitude or action in response. Wisdom is not highly correlated to intelligence, for wisdom operates on a much higher plane than mere rote memory or calculating speed of simple facts. Wisdom looks beyond the apparent to discover the true nature of a thing or situation.

What is justice? It is choosing solutions that are just and righteous. Justice always condemns the wicked and justifies the righteous. It does not confuse the two or compromise in either direction. It knows what is right and demands it with faithful integrity. The book of Proverbs teaches justice by defining what is right and wrong. What is right or wrong is not always merely subjective. There is an inner voice in every one of us that tells us whether what we are doing is right or wrong.
What is judgment? It is closely connected to justice and often used in tandem with it in the Bible. When people say, “He or she has good judgment,” they mean he or she has ability to identify error and choose right. Fads, fear, appearances, or other distractions do not alter judgment. Wise men and women cut to the essential issue of a matter and judge rightly (John 7:24).

What is equity? It is thinking and acting that is completely equal, fair, impartial, and evenhanded. A man or woman with equity is not moved by emotions, friendships, or compensation to compromise. He or she will not distort truth or slant matters in any direction. He or she is meticulously fair in distributing both rewards and punishments. He or she is equally as tough on his or her own family and friends as he or she would be on his or her enemies (I Tim 5:21).

I find the fourth quality, that is Equity, to be the most valuable in any commission of inquiry. Abiding by all four would produce a formidable and fair inquiry result. This should not be difficult in a Christian nation to do.

Zambians look forward to the proposed Commission of Inquiry. We already have precedents from other countries but because we are a Christian nation, we already have the book of Proverbs to use as foundation: Wisdom, Justice, Judgment and Equity.

About the Author: Dr. Munyonzwe Hamalengwa is a Senior Lecturer at the School of Law, Zambian Open University. He is the author of “Getting Away With Impunity: International Criminal Law and the Prosecution of Apartheid Criminals) ((2015). He has also designed a course entitled The Biblical Foundations of the Law. His forthcoming book is entitled The Book on Judges.




12 Responses to The President’s proposed Commission of Inquiry into Election Violence

  1. We have had so many cases of violence by the PF before, during and after the elections. some of the violence involved Police while some were aided by police itself. ALL CASES WERE REPORTED BUT NONE WAS PROSECUTED. Lets waste neither time nor money on an inquiry commission. We know who, when, why and how things unfolded.
    PF has also had a number of silly commissions that wasted people’s time and money yet nothing came out of them. what will make this one different?

    September 14, 2016 at 8:35 am

  2. valid point. But since another one has been proposed and it will happen, what should be done? One can chose to boycott or one can choose to participate in order to try to make the undertaking productive. But your point is well taken.

    Dr. Munyonzwe Hamalengwa
    September 14, 2016 at 9:26 am

  3. kongwa,i agree with you 100%

    September 14, 2016 at 9:45 am

  4. It is a good writing.

    The only one thing I do not agree with is the idea of thinking that we can use the person chosen as chairperson of the commission to deduce the spirit of the commission.

    Let us avoid suspicion, and superstition to govern our minds.

    Let us judge people and institutions based on their works and not their looks, because we all have different judgements and preferences but works can be seen by all.

    It is this same suspicion and superstition that caused people to decide way before elections were held, that they would petition.

    Hence, with or without evidence, they had to petition as promised.

    As a result, what happened? The petition lacked evidence, causing the petitioners to avoid dealing with the petition and utilise all the time provided for by raising alternative issues as preliminaries.

    The deliberate delay by the petitioners through raising of preliminaries was meant to exhaust the constitutional time limit, then cry that they have not been accorded justice.

    But the trick flopped together with the petition, in that only social sympathy could be attracted and not legal sympathy as there is no such a thing like the latter.

    Peace for Zambia
    September 14, 2016 at 10:18 am

  5. He knows he has immunity that is why he has the guts to call for a commission of inquiry, otherwise it is common knowledge that he is the sole culprit with his lieutenants bene Max Chongo. 1. UPND is very happy about this CoI just like they were very happy with PF reporting HH and GBM to the ICC. Actually can PF report on the progress of that ICC petition? 2. The report for this CoI will never be made public if it will be handled by impartial and self respecting commissioners as it will implicate state house and PF for all the violence in Zambia.

    September 14, 2016 at 10:26 am

  6. Please don’t include ba Pente in the CoI. They are corrupt starting with Northmead Assembly of God. They are easily bought, and after all their churches are money making ventures.

    September 14, 2016 at 10:29 am

  7. Time is money. This is a sheer waste of time as a great resource.

    Zambia is in their pockets. What they feel doing, they do.

    Truthfully speaking, this will not yield any positive results.

    Money will be spent. Once bitten, twice shy. At the moment, there is a lot to be done, to win pipo’s trust.

    September 14, 2016 at 10:33 am

  8. Insightful as always.It seems to me that if such a CI for election violence is to have legitimacy, the head of state or Zambians must require that–as a pre-condition for its take-off that its composition and mandate is beyond reproach, and the state provides an assurance that it will implement its outcomes/recommendations. Perhaps its composition will include serious Zambians who deeply love this country and not thugs merely interested in per diem. Perhaps some in put from International Criminal Court or such no nosense adjudicatory body. In the present climate of seeming affinity for fact-free discourse and zero evidence-based deliberations,love for evidence suppression or distortion , and an allergy for mutual-respect for each other, Iam afraid and skeptical that the outcome will lead to River Denial.I submit that the CI will be a mere PR intended to legitimize those who presently lack any democratic credentials or pretend to act as democrats and so-called “winners”. Worse, and heart-rending like the ConCourt, its fruit will be “no-decision” reached or absence of “determination”.In otherwords, a slapstick.

    Anonymous Doctoral Student
    September 14, 2016 at 9:35 pm

  9. Pingback: The President’s proposed Commission of Inquiry into Election Violence - Latest Africa News, Breaking News, Hot and Daily News

  10. Anonymous Doctoral Student, I hear you completely and what you are stating is what a number of people have expressed are their fears. Commissions of Inquiry whether they succeed or fail have consequences, positive or negative. For starters, they all cost money which the country can ill-afford. Secondly, they may lead to the legitimacy of the recommendations, advised or loll-advised with consequences for those who are caught in its web. Show trials can be propaganda tools with lasting consequences.
    There are also truly genuine commissions that can bring out the truth with positive lasting consequences. This is the possibility that we must never underestimate and overlook. Sometimes even a charade can be turned into a positive. I have never encouraged throwing the baby with the birth water. This is not naivety. Because even a show trial or charade can be exposed for what it is and positive lessons can be squeezed out of it. As I indicate in my article, the terms of reference and the composition of the commission will signal where we are headed, but since we don’t know yet as Peace for Zambis states above, we shouldn’t be skeptical even with the experience as someone also above says, Zambia already demonstrates the futility of such exercises.
    Zambia is highly alert. Zambians will always discover what is being sold to them. Whatever evidence will be gathered may be used in domestic or foreign forums now or in the future. Sometimes the road to hell is paved with good intentions. I look forward to witnessing the unfolding of the commission of inquiry into election violence. Zambia needs that commission. The truth shall set Zambia free. Even falsehoods contain the truth in the opposite which only becomes exposed through these falsehoods. This commission is a win win dialectic.

    Dr. Munyonzwe Hamalengwa
    September 15, 2016 at 1:09 am

  11. Let’s know who did what and why to know how for prevention sake. Let’s support the CI regardless of tribe or political connections. Who knows there might be more to what we have heard or seen.pipo might have been killed and buried.

    September 17, 2016 at 6:42 am

  12. Coi
    Coi we have seen a lot of them with very little or no benefits to the population. As for this one recently proposed, the are saying to look at the post elections violence, in particular the stage managed namwala saga, the pre and during the election and counting will not be part of the enquiry, who will setup a coi that is evidently going to incriminate them? Even the post elections violence targeted at namwala, the members will always have to toll the dictates of the master, with obvious financial and appointments benefits. Today there is no institution strong enough to give a correct, just, fair and equitable judgement or view on important national matters without looking whether big brother PF is watching, if anything it has become lucrative to side with the ruling party or class throwing to the winds all the principles, values and morals. In this case the PF is targeting the namwala purported ethnic cleansing other crimes evidently committed by the ruling party will not be part of this coi, watch the space.

    September 17, 2016 at 7:27 am

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