Should Zambia’s president live in his own home? It’s a question that was raised in the constitutional court recently by Sean Tembo, head of a Zambian opposition party. The seven judges of that court had been asked by Tembo to find that the country’s president, Hakainde Hichilema, should have been living in state house instead of his own home. Tembo cited the cost and inconvenience to the public of the daily presidential cavalcade from his private home to his offices in state house, and asked the court to find that the expense was unjustified and unconstitutional.
More than two years after assuming office as president of Zambia, Hakainde Hichilema still lives in his own home, not in the official presidential residence at state house. Opposition politician, Sean Tembo has taken issue with this state of affairs, saying it’s unconstitutional, especially because of the cost to the public purse of the president’s daily commute to the official offices at state house.
According to Tembo, who is president of Patriots for Economic Progress, these daily commutes were ‘characterised by high level security protocols which include a long convoy of motor vehicles cruising at high speed, closure of all roads adjoining the road used by the presidential convoy, loud noises emanating from the sirens of police vehicles and motor bikes, deployment of officers to line up the entire route and utilisation of multiple Zambia police motor vehicles to drop off and pick up police officers participating in route lining activities.’
Tembo’s view, as put to the court, was that Hichilema’s ‘refusal’ to move to the official presidential residence was based on his ‘self-interest and desire for exaggerated luxury and opulence, with no regard whatsoever [for] the prudent use of resources of the country.’
‘Waste of public resources’
Further, this insistence did not promote ‘fair and equitable use of public resources, results in loss of economic productivity and unnecessary inconvenience to the general public’, and infringed several articles of the constitution.
Tembo, a qualified accountant, claimed that the daily presidential trek to and from state house was costing the country a lot of money. ‘(F)uel and maintenance for approximately 20 motor vehicles, together with the cost of deploying approximately 1000 police officers for route-lining purposes is estimated at ZMW 126,945,107.84 per annum’.
This was a waste of public resources and contravened the constitutional provision that the public service ought to promote efficient, effective and economic use of national resources, he said.
Summarising Tembo’s argument, the court said that, according to him, a crucial element of the constitutional vision was to make a ‘decisive break from unchecked abuse of state power and resources’ that, according to Tembo, was ‘virtually institutionalised during the one-party era.’
‘More comfortable’
Tembo, who argued the case himself, referred the judges to a statement by the presidential spokesperson and secretary general of Hichilema’s ruling United Party for National Development. Tembo claimed that the secretary general said the president ‘was more comfortable at his private resident which was said to be a better house’ and that the official residence ‘needs a lot of work for anyone to live there’. Tembo told the court that he was content to rely on these reasons given by officials of the president’s own party.
While so many students in schools had no desks, and while people still had no access to clean water or health care in public hospitals, the cost of the daily presidential commute from his private residence to state house wasn’t equitable, said Tembo.
But the attorney general took issue with this argument saying it had been ‘only a matter of practice or custom’ that past presidents were accommodated at state house. And in addition, the presidential residence at state house was dilapidated and needed extensive renovation.
‘Astronomical amount’
In an affidavit, the permanent secretary in the ministry of infrastructure, housing and urban development, Albert Malama, said there was no law stipulating where the president had to live. That past heads of state had lived at state house ‘was only a matter of practice and custom’. Further, the presidential residence at state house was so dilapidated that it needed renovations that would cost ‘an astronomical amount’.
There was nothing imprudent about the president remaining at his own private residence and it involved no irresponsible use of national resources. In the ministry’s ‘considered view’ it would not be a prudent or responsible use of resources to renovate the official residence, given all the other public needs.
On the presidential convey, Malama said that when Hichilema travelled to various parts of Zambia on his official duties, that travel was ‘of necessity characterised by the convoy moving at high speed as part of the security protocols’.
As to Tembo’s claim that ‘custom’ required the president to live at state house, it was more like a ‘habit’ since the practice of presidents living there ‘had not attained the status of an immemorial custom’ with the force of law.
‘As far back as living testimony can go’
Malama then quoted English law that for a custom to be ‘immemorial’, it had to date to 1189. Alternatively, if that couldn’t be established, the courts will support a custom being of ‘immemorial origin’ if its ‘continuous use as of right as far back as living testimony can go’ can be shown.
In Zambia, however, the first president moved into state house in 1964, ‘long after the date set for identifying an immemorial custom (1189).’
True, all the presidents of Zambia since independence, and colonial governors before that, have lived in state house, but its status as a national symbol hadn’t been formally or legally recognised.
The fact, raised by Tembo, that a woman pedestrian had been killed in an accident with the presidential motorcade, and the right to life had thus been infringed, also turned out to be a blind alley.
From the start of their decision it was clear that the judges weren’t going to dictate where the president should go in the evenings after work.
Case ‘improperly’ before the court
Tembo hadn’t shown a government gazette providing that the president should live at state house, they said. And the sections of the constitution he quoted said nothing about the president’s official residence.
What about Tembo’s claim that the loss of life caused by the motorcade infringed the bill of rights? Any legal action related to the bill of rights had to start off in the high court, said the judges. As this happened here, this part of the case was actually ‘improperly’ before the constitutional court. Claims related to the right to life couldn’t be entertained by the constitutional court and this claim had to be dismissed.
As there was no law or constitutional provision compelling the president to reside at state house, Tembo’s action lacked merit and was misconceived, the court concluded.
The result could hardly have come as a surprise to Tembo, who seems to be suffering from a series of setbacks in his attempts to challenge the president and his decisions.
Tangible solutions?
Tembo claims his party is the only one with ‘tangible solutions’ to Zambia’s economic woes, but his rhetoric and challenges to Hichilema don’t seem to have won him many supporters – the party has just one MP in parliament.
Tembo himself has been in and out of detention, and is currently facing charges, not for the first time, of insulting the president. But it’s unlikely to stop. At one stage the Zambian Observer quoted him as saying that he would continue his criticisms of the president until Hichilema quits office.
‘I hate [him] with passion, only impeachment [of the president] will heal me.’
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