By Sishuwa Sishuwa
In Zambia, the law that governs the political conduct of a former president is the Benefits of Former Presidents Act as amended by the Benefits of Former Presidents (Amendment) Act Number 21 of October 1998.
It states that “a former President shall, upon ceasing to hold office, be entitled to:
(a) a tax-free monthly pension at the rate of eighty per cent of the incumbent president’s emoluments;
(b) the benefits set out in Schedule of this Act; all of which shall be a charge on the general revenues of the Republic.”
The benefits appearing in the stated Schedule are:
1. An office
2. One personal secretary
3. Three security persons.
4. Three cars, with free maintenance, and petrol entitlement to the extent determined by the Cabinet, but only one car for the surviving spouse.
5. Three drivers, but only one for the surviving spouse.
6. One Administrative Assistant, who shall be at the level of Deputy Permanent Secretary.
7. Three house employees, which number may be increased by Cabinet.
8. A diplomatic passport for the former President and his spouse.
9. A furnished house built or bought in Zambia by the State at a place of the former President’s choice and ownership of the house shall be transferred to him.
10. Medical insurance for the former President and his spouse.
11. In each year, one return air ticket for the former President and one for his spouse.
12. Funeral Expenses on his death.
In addition to these outlined benefits, the Act further states in section 4 (a) that “there shall be:
(a) assigned to a former President, within a period of not more than two years from the date of ceasing to hold office, a furnished executive house built or bought in Zambia by the State at a place of the former President’s choice;
(b) provided to a former President immediately upon ceasing to hold office housing accommodation as the government considers fit before the house referred to in paragraph (a) is assigned to the former President; and
(c) provided by the State to a former President within a period of not more than six months from the date of ceasing to hold office, three drivers, three motor vehicles with free maintenance and entitlement to fuel to the extent determined by the Cabinet.”
The Act also provides for the circumstances when these benefits are not payable to a former President. Section 5 (1) states that
“The pension and other benefits conferred by this Act shall not be paid, assigned or provided to a former President who is —
(a) in receipt of a salary from the Government; or
(b) engaged in active politics.”
The Act, in section 2, defines “active politics” to mean —
“(a) the doing of any act indicating a person’s intention to hold elective or appointive office;
or
(b) the holding of elective or appointive office;
in a political party or in an organization whose main aim is the furtherance of political objectives”.
It is my informed opinion that none of these two circumstances apply to former President Edgar Lungu for two reasons.
The first is that Lungu has not publicly communicated any intention to hold elective or appointive office. Since the Act does not provide for the meaning of intention, the ordinary interpretation of the word would suffice. According to the Oxford Learner’s Dictionary, intention is “what you intend or plan to do”. The Cambridge Dictionary similarly defines intention as “something that you want and plan to do.” Since Lungu has not publicly said he plans to stand for elective office, the only act that would conclusively indicate his intention to hold elective office is the filing of nomination papers in readiness for contesting an election. Until he does this, if at all he will, Lungu has not engaged in “active politics” as defined in section 2 (a) of the Act. It is important to mention that this law does not provide for speculation or mind reading.
The second reason is that Lungu is currently not holding elective or appointive office. Two weeks after he lost the 2021 election, Lungu wrote a letter to the Secretary to Cabinet, informing the government that he had resigned as president of the Patriotic Front (PF) and retired from active politics. The Government formally acknowledged receipt of this communication and, as per the law, started disbursing the benefits that were due to him as a former President. That Lungu has retired from active politics and the government accepted his decision is and remains the official position. I repeat: the official position is what Lungu has communicated. Anything else, said by third parties, is inconsequential.
Supporters of the government have argued that records held at the Registrar of Societies still bear Lungu’s name as PF president. They have since challenged the former President to have his name removed from the list of office bearers, as failure to do so might be considered as evidence that he is engaged in “active politics” as defined in section 2 (b) of the Act. This reasoning is defective because it ignores the fact that Lungu formally resigned as PF president and communicated his decision to the party’s National Chairperson in August 2021. The continued appearance of his name on the list of office bearers – only because the PF is yet to choose his successor – does not change this fact and is a matter that is best left to the PF and the Registrar of Societies to resolve.
If the former ruling party has not given the Registrar of Societies an updated list of office bearers since his resignation, this is not his fault. It is the responsibility of the PF – specifically the Secretary General or their deputy – to clean the party’s records, including ensuring that Lungu’s name is removed from the list of office bearers. By quitting both the PF presidency and active politics, Lungu is no longer an official or member of the party. As a result, he has no say in its internal operations and cannot communicate with the Registrar of Societies in any capacity.
In short, Lungu has not violated the provisions of the law which provides for the circumstances under which he can lose his benefits. In saying all this, it is not me supporting Lungu; it is the law. My position on this subject will not change even if we took out Lungu and put Hakainde Hichilema – or indeed any other former president – in his (Lungu’s) position, provided the circumstances and the law remained the same.
If anything, it is the government that has violated the law that provides for Lungu’s benefits. In August, the former President formally requested the government to procure him a return air ticket to South Africa. The government declined his request without explaining why. This action violated the provisions of the Benefits of Former Presidents Act that confers on Lungu the right to receive, on an annual basis, one return air ticket from the government to a destination of his choice. It also constitutes a breach of very basic principles of the rule of law, which guarantees him the right to be given adequate reasons whenever his legal rights are taken away. Furthermore, legal rights cannot be withdrawn without due process, which obliges the government to consult and give Lungu an opportunity to make representations before deciding to remove them.
Of worrying concern is that the government’s demonstrated disrespect for Lungu’s benefits appears not to be an isolated incident but part of a growing trend of disregarding his rights including those that are given to him by the Constitution of Zambia. For example, on 9 September this year, the former President went to the Copperbelt to attend an interdenominational church service to which he was invited. After the initial attempt to prevent him from traveling for the occasion failed, the police stormed the venue, dispersed everyone, and arrested the man of God who organised the service for “conduct likely to cause breach of public peace”! Here, we see the violation of Lungu’s constitutional right to meet, speak (since people meet to talk), and associate with other people.
Another violation of Lungu’s rights – this time the right to freedom of movement – occurred on 16 September. When the former President wanted to travel to South Korea to attend an all-expenses-paid peace conference, the government prevented him from boarding the aircraft and had his baggage offloaded. No official reason was provided for this action.
On several occasions, Lungu has also been scolded by government officials for merely exercising his freedom of expression. More recently, the police warned Lungu, who conducts workouts during weekends, against jogging in public. The police spokesperson described the former President’s weekly runs, during which he is sometimes joined by a few enthusiasts, as ‘political activism’ and told him to seek officials’ approval for future jogging exercises.
I appeal to the government to stop the continued violation of Lungu’s rights, such as those conferred on him by the Benefits of Former Presidents Act and the rights to peaceful assembly, free speech, to associate with whomsoever he chooses, to move freely including leaving and returning to Zambia , and to equality before the law. I do not have to like Lungu to defend his legal and constitutional rights. The point is that the government has no known justifiable reason for violating his rights. Lungu has not been arrested and charged with any criminal offence nor convicted by any court of law – factors that could have a bearing on the enjoyment of his rights.
I know what it means to be on the receiving end of human rights violations. This partly explains why I am opposed to the violation of any person’s rights, including former President Lungu’s. Let there be no doubt: Lungu did a lot of damage to Zambia’s democracy. He disregarded the human rights of other people. It is much easier to ignore the continued violations of his rights than to defend them. But we will not be different from him if we keep quiet when his rights are being violated.
We must be very careful that we do not look away simply because those on the receiving end of injustice today were our tormentors yesterday. In dealing with such people, we should never violate or ignore the violation of their rights. Let there be fairness and justice and respect for one another’s dignity. After all, the rule of law demands that everyone’s human rights (including the rights of yesteryear’s oppressors) be respected. We betray both our conscience and duty of care to each other the moment we choose, for whatever reason, whose human rights to defend and whose to disregard.