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.

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