By Dr. O’Brien Kaaba and Madrine Mukabili
June 03, 2024
The recent disappearance and re-appearance of Petauke Member of Parliament (MP), Emmanuel Jay Jay Banda has once again highlighted how ethnically polarised the country is, precipitating the arrest of several national leaders for ethnic-related hate speech. In this article, we argue that the ethnic problem is deeply rooted in historical legacies, necessitating a constitutional remedy. Merely resorting to the enforcement of criminal law may only yield limited benefits. It is a challenge that requires an inclusive constitutional framework where all Zambians feel they belong and have a stake in the affairs of the state. Without such inclusion, those who feel marginalised have no motivation to support the success of any government. To grasp the complexity of this problem, it is important to revisit the origins of the Zambian state itself.
Zambia’s
existence as a nation, is the product of colonial engineering. It is a colonial
construct. Prior to colonial rule, various groups were self-governed in
accordance with their distinct laws, customs and traditions with ethnic
identities being relatively fluid. The 19th century, when Zambia
came under colonial rule, marked an era of significant transformation across
Sub-Saharan Africa. This epoch was characterized by nation-building and
migrations. It was period of disruption, merger of groups and re-alignment of
kingdoms/chiefdoms and cultures. It was during this time, for example, when the
Ngoni broke away from Shaka Zulu’s domain and settled in Eastern Zambia; when
Sebitwane and his followers settled among the Lozi people in Western province
and when the Bemba people migrated from Congo to settle in Northern Zambia.
As a result of these disruptions and developments, ethnic identity was not a permanent or fixed feature. It was “fluid and situational” lacking a consistent, enduring essence That said, however, this fluidity did not imply a natural compatibility or a peaceful co-existence among groups. The various ethnic wars that erupted prior to colonial rule testify to that fact. What is significant is that, ethnic margins were permeable and in extreme cases individuals not content within their group could easily migrate, as national boundaries were then not permanently fixed as they are in the contemporary era.
Colonialism precipitated two significant developments concerning ethnic identity, both of which bear implications for national cohesion and constitutional democracy. Firstly, was the invention of the “tribe” as an immutable, permanent quality of ethnic groups. Thus, as Macola insightfully noted, the colonial system “popularized the view that African communities in Northern Rhodesia had always been organized along tribal lines” and tribes had discernible features. Thus, the various groups within the territory were considered to be closed and distinct. The documentation of tribal histories, colonial reports and missionary descriptions served to crystalise these beliefs and implemented them, especially in selecting people for employment in certain sectors. The effect of these stereotypes was to harden ethnic consciousness among various groups.
Secondly, the creation of one country from various groups resulted in bringing together people who may not have wished to live together. The arbitrarily drawn boundaries bisected communities that were previously united and lived together as one. Thus, without an inherent historical logic to the drawing of the borders, the colonial administration brought under one territory diverse groups with little consideration for their intrinsic desire to coexist. Consequently, Zambia became a juridical state, yet its citizens lacked a collective national identity. In fact, the drive towards nationalism was largely driven by collective grievances against colonial rule and little else.
The cumulative effect of these historical dynamics was that upon gaining independence, the new Zambian leaders were confronted with the daunting task of welding together into one nation the various groups in the country in order to mould a viable state. This has had constitutional implications in at least two ways. Firstly, the process of national building was driven from the centre by the new leaders based on top-down models of nation building. This largely meant, the creation of a more centralized unitary state and the consolidation of power in the central government, predominantly in the President.
Secondly, any assertion of diversity was perceived negatively by government and seen as an obstruction to national-building. Diverse identities had either to be obliterated or relegated beneath the overarching national identity. These perceptions led to gross violation of human rights, limiting participation in public affairs and suppression of those with dissenting voices. Those opposed to the collectivist views of nation building were branded as enemies of the state or anarchists. The pursuit of national cohesion took precedence over all other rights. As Zambia’s first president, Kenneth Kaunda, firmly argued:
“For a nation can flourish and its people benefit under a strong government but anarchy is the basic denial of freedom because every aspect of the nation’s life is paralysed. National survival is the basic good; all other qualities such as unlimited freedom of expression are contingent upon it. The great enemy of freedom is not totalitarianism but chaos.”
These views infiltrated all institutions of government, including the judiciary. For example, when Simon Mwansa Kapwepwe broke away from UNIP and formed his own party, a narrative was created by those in government that he intended to divide the country along tribal lines. As a result, he was arrested and detained without trial and his party banned. When he challenged his detention, the then Court of Appeal simply repeated the narrative thus:
“As to the second [ground of detention], I consider that it is a notorious fact that the United Progressive Party is largely based on support from the Bemba and allied tribes and that the party is in the popular image a Bemba party. In this context it seems clear to me that this ground is an allegation that the detainee has been organizing the party as a tribal party which in the result is likely to cause conflict with other tribes and prejudice security.”
These views later crystalised into the one-party state constitution in 1973 which effectively outlawed the existence of any other political party apart from the ruling UNIP.
It would be a mistake to think that reversion to multiparty democracy in 1991 resolved the challenge of ethnic identity and national cohesion. The issue persists, seeking resolution through suitable constitutional mechanisms that can allow for a harmonious co-existence while at the same time not freezing those identities. The suspicion for ethnic identity still characterizes the various past constitution review processes. Despite public submissions highlighting the necessity to confront this issue and the need to directly redress it and design constitutional mechanisms for positive co-existence and accommodation, all previous constitution making processes resorted to fear mongering, conjecture, speculative reasoning and buck-passing, shirking the responsibility to tackle this enduring challenge.
This is perhaps best reflected in the views of the Mung’omba Constitution Review Commission. The Commission was presented with 187 submissions proposing turning Zambia into a federal state, contrasted with 10 opposing submissions. The reasons for supporting a federal State included perceptions of alienation from central government; regional marginalization; tribal imbalances in appointments; lopsided development and control over local resources. The Commission acknowledged these concerns raised by the petitioners, but instead of doing their bidding and drafting a constitutional framework that would take care of these concerns, the Commission refrained from endorsing them and resolved as follows:
“The commission feels that a federal system that exists in the United States of America, India and Nigeria is not feasible for Zambia as it may alienate the people and breed disunity and division.”
Thus, previous constitutional making processes
have chosen to bury their heads in the sand at the expense of facing the ethnic
problem head-on and designing a constitutional framework that is inclusive,
accommodating, and celebrates the diversity of its people. Doing nothing merely
postpones the problem, allowing it to fester and increasing the possibility and
the risk of severe eruption at an unforeseen future juncture.
That this should be a matter of urgent constitutional design is born by the findings of the Commission of Inquiry empanelled by President Lungu to look into the lopsided regional voting patterns and concomitant political violence in the country. The Commission found that the main driver of political violence was tribal inclination, where voters give their support to the party led by candidates from their own tribe or region. According to the Commission, this explained “the teaming up of people from provinces on the south-western part of the country, on the one hand, and people from the provinces on the north-eastern side of the country, on the other hand” and that “politicians deployed tribal campaigns…. whereby they used tribal tags to influence tribesmen and tribal cousins to garner votes to benefit their political parties.”
The challenge of ethnic identity implicates many other aspects of constitutional interest including the need for an inclusive electoral system; effective political mobilization and meaningful public participation in governance; devolution of power to subnational tiers of government; and addressing issues related to patronage and corruption in public affairs. The current approach to national building based on unitary nationalism and suspicion for diversity is not sustainable and can only survive on a mix of repression and patronage.
ABOUT THE AUTHORS
Dr. O’Brien Kaaba teaches constitutional law at the University of Zambia and is a senior research fellow at Saipar.
Madrine Mukabili is a legal intern at Saipar. The article
represents the views of the authors and does not necessarily those of their
institutional affiliations]