By Munshya wa Munshya

Over the issue of the lifting of Rupiah’s immunity, we are conflating too many issues and I am afraid it is becoming confusing for me. I have not said that what parliament did was FAIR. I have not even supported the action of parliament. I have not said what they said was good for the country. I have not said Kabimba and Sata are sincere about what they have done.

In my earlier article  on parliament’s lifting of Dr. Rupiah Banda’s immunity, I was merely evaluating the legal and constitutional perspective of whether the Speaker was right at law to go on with the motion. I drew the conclusion that the Speaker was right taking into account Article 43(3) and the case of Chiluba v Attorney General (2003). I do understand that parliament rushed through what they did, but that is not a problem of law, but of politics. We have to agree on something before we suggest some changes we want to see in Zambia.

The removal of immunity is happening within a political and legal framework. If the argument is about politics, I would be the first to admit that the action was politically controversial, but this controversy should not be attributed to law or constitution. That was the point I was trying to put across. MPs are confusing matters and conflating too many matters. If they want to argue that the Speaker was wrong they better get what exactly the Speaker did wrong. If it is a legal wrong then they are sadly mistaken I am afraid.

I am for justice. I am for fairness. For example, I have written to defend people like Kay Figo when the law could not defend her. I have written for women’s rights  and I have urged the male dominated Zambian politico to respect women like Dora Siliya. I am for Zambia. But please do not make into an enemy. I am on your side with regard to where we are politically as a nation. My legal opinion that the Speaker was right must not be taken to mean that I then support what he did. Obviously, I do not. But I am very concerned though with some positions that my colleagues have taken. It disturbs me for some of our people to treat immunity like a fundamental human right. Banda or Sata do not obviously have a fundamental human right to immunity. Immunity is a creature of our laws and our constitution. Immunity is not our master, we are its master. Immunity should not divide us.

In any case, the people of Zambia voted in the last election for a parliament that was going to bring checks and balances on the executive. Parliament is a creature of our laws and constitution. Each MP is part of the legislative arm of government. But when they got to parliament, our MPs sold out to the executive. They decided to join the other side and betray us by voting on motions that some of us never supported, those motions I am afraid could include the motion to remove RB’s immunity. Had these MPs not sold out, RB would still have his immunity intact. This issue is a political issue, why is it that we always like to fault the law when our politics go bonkers? Why aren’t we outraged at these MPs the same way you are outraged at me for just pointing out that what Matibini did was within his constitutional mandate?

Unfortunately, regardless of how we feel about the fallen politics, when RB goes to court, he will have to deal with legal questions and not political questions. Dr. Rupiah Banda cannot use political arguments to deal with legal matters. Politicians had a role to play in parliament and obviously they never helped him, instead they sold out to Sata by a loaf of bread. That is the kind of debate we need to be having. We are a nation and should be a nation of laws. But if politics betray us, please let us not for a moment heap the blame of the laws. I want to make it clear – I do not support the PF government. I am its critic. But what happened in parliament was a matter that dealt with politics as well as laws, and my position was simply one sided – the question of law.

The hypocrisy of politicians is becoming nauseating to me. Where were they when Article 43(3) was being drafted? Where were they when Chiluba v AG (2003) was being passed? Where were they when the 1996 Constitution was being passed? Did not Hichilema say Banda was corrupt in the run up to the 2011 elections? What has changed now?

I am aware of the misdeeds of Sata and his minions and I have highlighted in my small way on my blog www.eliasmunshya.org the misdeeds of this government. I have said it that President Sata has appointed the most nepotic and tribalistic cabinet in the history of our country. I have mentioned that President Sata has no proper plan for Zambia. I have struggled with issues of his political legitimacy. However, Zambia is bigger and greater and we should allow ourselves to look at issues from different perspectives. I had to answer like this because there are many other of my fellow compatriots thinking I am taking too much of a legal side.

For now Rupiah Banda is in court. But legally, I do not think he will be successful. Saying so, however, does not and should not in any way mean that I am siding with injustice. I am merely siding with a reality that President Banda’s immunity has been legally removed from him and he must now begin preparing his defence if at all he will be prosecuted. We are on the same side – let us never forget that.

Zambia’s Acting Chief Justice Lombe Chibesakunda – 2013

By E. Munshya wa Munshya

It should not calm any nerves to realize that an analysis of the majority ruling in Attorney General v Mutuna, Kajimanga and Musonda should begin by looking at a single sentence taken from its last paragraph. Acting Chief Justice Lombe Chibesakunda,  stated in the last paragraphs of her over 120-paged opinion that:

“Before we end, we want to state that although we agree that the President in exercising the powers vested in him under Article 98 has unfettered discretion under the said Article, we nonetheless believe that it would be advisable, considering circumstances of this matter, for the tribunal not to proceed.”

This sentence as much is it is conceived with controversy is also pregnant with a lot of meaning. But the questions still remain. Was this sentence put into the judgment as an afterthought? Did the majority of the four judges have a disagreement such that to appease someone in their midst, they had to insert these words? What exactly did they mean when they held that it would be advisable for the tribunal to not proceed?

This sentence of all the other issues in the judgment provides perhaps the greatest insight into what was really at stake when the Supreme Court took up this issue. I wish to argue that the judgment of the Supreme Court is fundamentally flawed and the basis upon which they held to discharge the stay of proceedings was faulty to say the least.

The facts of the case under consideration are very clear. President Michael Sata used his powers under Article 98 of the Constitution to suspend three judges – Justice Kajimanga, Justice Mutuna and Justice Musonda. He consequently, constituted a judicial tribunal to make enquiries into their misconduct. The president alleged that he had credible information that the three had misconducted themselves in their discharge of judicial duties. After the president had written them, they sought leave from the High Court and a stay of proceedings  to restrain the President from going ahead with the tribunal while they contested his powers to suspend them and constitute a tribunal.

At issue was whether the President, in his use of Article 98 powers had contravened Article 91 of the Constitution. Article 91  envisages the Judicial Complaints Authority as the appropriate body to hear grievances about judicial misconduct. As such, they argued that the president’s powers in Article 98 must be exercised in conformity with Article 91 so that the President must at least consult with the Chief Justice and with the Judicial Complaints Authority before he could execute his powers in Article 98. Additionally, Justice Mutuna and others contended that by appointing a tribunal to make enquiries into a matter that was before court, the President had usurped the powers of the Supreme Court of Zambia. There are many elements to the issues raised by the judges but for brevity and clarity we should leave them at that.

In the High Court, Justice Fulgence Chisanga, granted leave  to the suspended judges and held that prima facie they had arguable grounds upon which a stay of proceedings against the tribunal could be granted. The State through both the Attorney General, Mumba Malila SC and the Solicitor General Musa Mwenye SC, instead went to Justice Chisanga and asked her to discharge the stay of proceedings. She refused and instead ordered trial of substantive issues that the suspended judges had raised.

It was at this point that the Attorney General appealed to the Supreme Court. The court was asked 9 questions among many other elements. The principal issues being that High Court Justice Chisanga should have discharged the the stay of proceedings. They also argued that the president did have the power according to Article 98 of the constitution to suspend the judges and institute the tribunal. In view of the two principal articles of the constitution the Supreme Court was invited to rule on whether by exercising Article 98 powers, the President should have considered judicial independence as articulated in Article 91 of the Constitution.

The Supreme Court’s judgment is quite surprising to say the least. Perhaps the most astounding of all they held, was ruling that the President was legally right in using his constitutional powers to suspend the judges, but at the same time, they provided “advise” that the tribunal should not go ahead.

Surprisingly though, this ruling and the reasons the Supreme Court has advanced for stating that Article 98 powers could be exercised without recourse to Article 91 and in fact without any further recourse to the Judicial Complaints Authority deserves some analysis.

The Rule of Interpretation

The Supreme Court judges confused matters when they held that the appropriate method of constitutional interpretation in this matter should be “literal rule of interpretation.” To buttress this position, the court relied on the Miyanda, Chiluba and the Mwanawasa cases.  The literal rule of interpretation according to Justice Chibesakunda is that the ordinary meaning and ordinary grammatical meaning should be assigned to constitutional texts.

I am of the view that the rule of interpretation was not at issue in this matter. The issue was not whether the meaning of Article 98 was ambiguous or not. What was at issue was comparative constitutional law. The question should have been whether Article 98 and Article 91 could be interpreted harmoniously or not. Coming to any conclusion was not going to be dependent on “natural or even grammatical” meaning of any text.

Nevertheless, if the rules of interpretation were ever to be relevant in this case, then it should not be the “literal” or the “natural” rule that should suffice, but rather the “purposive interpretation method.” And in fact, I am of the opinion that the “purposive interpretation method” would be more helpful though in resolving the interplay of Article 98 and Article 91. The purposive interpretation looks at the wider context of law and seeks to interpret constitutional texts in ways that give effect to wider concepts and fundamentals of the law. I must return to this latter.

Duality of Article 98 and Article 91

The other questionable thought pattern employed by Justice Chibesakunda and the majority concerns their “dualization” of Article 98 and Article 91. This is fundamentally offensive at constitutional law. In this duality, Justice Chibesakunda and her majority envision Article 98 and Article 91 as existing in different planes and in fact in different universes, as it were, and as such, they do not in any way see how the exercise of the President’s powers in Article 98 could in fact impact on the exercise of Article 91 powers. Chibesakunda ACJ chose to ignore any interaction of these articles and strictly created a dichotomy that problematically, divorces these articles even though these two articles have impact upon the common subject matter.

It is in this vein, that Chibesakunda sees the Judicial Code of Conduct (which is a product of statute) not as a broad product of constitutionalism, but rather simply as a product of one isolated constitutional article, Article 91, of the Constitution that cannot impact on any other articles. This is problematic. The Judicial Code of Conduct is a constitutional tool that can be used by both the Executive and the Judiciary to deal with judicial misconduct. But to conceptualize it simply as a product of one universe inhabited by Article 91 and not be a subject of Article 98 of the constitution is to create a constitutional dichotomy that by itself betrays the very tenets of constitutionalism.

Dualism & Literal Interpretation

A literal interpretation of the Judicial Code of Conduct to the extent that it is interpreted only as a child of Article 91 and not Article 98 is inconsistent. For example, it is in the preamble to the Constitution of Zambia where Zambia is declared as a “Christian Nation”. And yet while this is the case within the preamble, the Supreme Court has “purposively” interpreted this provision and robbed it of any justiciable value. This is what they held in the case of Roy Clarke v Attorney General. That being the case, how come this time when it comes to the Judicial Code of Conduct the same court is now interpreting the preamble in a “literal” sense?

The “Guard of the Guards” Doctrine

The next problem and perhaps the most controversial of them all, is the doctrine that Chibesakunda seemed to have invented. The idea that the constitution has put up the President to be the “guard of the guards.”  Under this doctrine, while Article 91 provides for such avenues as the implementation of the Judicial Code of Conduct, the other avenue by which judges can be kept in check, according to Chibesakunda, is by the President using his “discretionary” powers under Article 98. According to the court: “It must be an equally democratic tenet to enshrine in the Constitution the limited checks on the Judiciary by the Head of State through the establishment of tribunals where the President receives credible information.”

This thinking is problematic to the extent that it erodes and offends the doctrine of the separation of powers. Zambia being a common law country is founded on several constitutional principles. I should say that while a written constitution is the supreme law of Zambia, the constitution itself predicates from unwritten principles and values that should underline any subsequent interpretation of the constitutional text. As such, the courts of law are called to give effect both to the text and to the spirit of the text of the Zambian constitution.

The Separation of Powers

One of those principles undergirding the spirit of our written constitution is the wellspring of separation of powers. In simple terms, this principle basically states that the Judiciary is not subordinated to the Executive. As such, the president in all his powers is not head of the judiciary and cannot possibly be its “guardian”. That being the case, the best way to approach constitutional text that seem to give more power to the president over the judiciary, is to interpret such texts in ways that does not offend the principle of separation of powers. It is on this point that the Supreme Court erred.

In this regard then, the Zambian Supreme Court, having been faced with a dilemma between Article 98 and Article 91 powers; they should have interpreted these articles in ways that conform with the principle of separation of powers. This being the case, it should be repugnant for Justice Chibesakunda to claim that the President as Head of State should have powers to suspend judges based on “information he receives as Head of State.”

According to Chibesakunda: “…the legislators intended to lay down procedures of making it possible for the President as Head of State to deal with that exclusive class of adjudicators without recourse to the Judicial Complaints Authority”.

Further, Justice Chibesakunda sees the presidential exercise of Article 98 powers to be in the common good of our democracy. But as stated by the suspended judges in their affidavits, one of the reasons why President Sata instituted the tribunal is not because of any meaningful democratic ideals but rather it was connected to a ruling from Mr. Justice Mutuna that went against the President’s political collaborators. As such, the idea that it is in the interest of democracy that a president should suspend judges is at least, prima facie, questionable in view of the reasons why President Sata constituted the tribunal.

It cannot be democratic, that which is done to only protect the president’s close business and political associates.

Executive Discretion

Closely connected to the above paragraph, the Supreme Court seems to imply that since Article 98 powers are exercised only in an executive capacity, this cannot offend the separation of powers. This is a lame reason. According to Justice Chibesakunda, the president’s invocation of Article 98 powers only deals with investigation of a judge and not a prosecution of a judge. This so-called investigation doctrine is even more belligerent. Couldn’t the honorable court have looked at the impact that such investigations could have on the independence and impartiality of the judges? Should judges loose their independence simply because the tribunals set up under Article 98 are just investigatory in nature and not prosecutorial in nature?

Perhaps more bizarrely, Justice Chibesakunda further held that, “since the tribunal process is investigative in nature, Judicial Review cannot be used to curtail these investigative processes”. It does not get any more problematic than this. I should strongly disagree here with the Supreme Court. The tribunal cannot be said to only be “investigative in nature”. A few sentences down the line, in her judgment, Justice Chibesakunda contradicts this “investigative character” of the tribunal by stating that “the President must act on the advice of the tribunal, without discretion.”

This being the case, it means that the “investigative” doctrine that Chibesakunda seem to be inventing is untenable. It cannot be investigative that which will make categorical recommendations about the fate of a  suspended high court judge. This is not how investigations work. The fact that the Judge Chikopo (intentionally misspelled here) tribunal will in fact, make recommendations binding on President Michael Sata should move the tribunal from being an investigative body to being a judicial body and if that is the case, then judicial review that seeks to question the very basis of such powers should at least be considered by the courts of law.

This idea from the judgment of the honorable judges of the Supreme Court is a contradiction to say the least. Or as we used to call it in Chiwempala: this is “double tobela.”

Again, what the Supreme Court of Zambia says in the following paragraph is so irresistibly ironic:

We also hold the view that His Excellency was not exercising quasi judicial powers.  We hold the view that conferment of wider discretionary  power vested in His Excellency are indicative of the absence of  His Excellency acting judiciously, see the  case of R vs Governor of Brixton.  

While indeed the Court might claim that the President is not acting in a quasi-judicial capacity when he sets up the tribunal, the fact that the tribunal’s recommendations should be carried out by the president without discretion should lead to the conclusion that this exercise of Article 98 powers is in fact quasi-judicial. Indeed, had the tribunal been only an investigative agency and not a judicial one. Indeed had the tribunal only investigated the facts of the cases without proffering any binding recommendations, the President could have gotten away with this doctrine. But unfortunately it is not so. As such, if this does unchallenged, the president will act to fire the judges on the basis of the recommendations from the tribunal. As I have stated above: this should bind the president to act judicially.

The Principle and Power of Constitutionalism

The next problem with the Supreme Court ruling is couched in very interesting language. According to Justice Chibesakunda: In order to guard jealously the sanctity of our Constitution, we cannot give Constitutional provisions a meaning that may impeach the explicit, implicit and clear language used. 

But what the learned lady misses in so saying is that the constitution does not only contain the powers of the President, it also contains the powers of the judiciary. Constitutionalism is not only a commitment to presidential or executive powers; it is also a commitment to judicial powers. It falls upon the judges to ensure a balance of these powers if a conflict is noted. Prima facie, the suspended judges noted a clear conflict of powers in Article 98 and Article 91, it was for the court to address this issue rather than only give credence to the immutable power of a President.

Political Realities and Awareness

In spite of being a lady of tremendous political insight and experience, Justice Chibesakunda seems to have conveniently left out the political realities in her interpretation of presidential powers. No judge of the Supreme Court should take himself or herself as living in a legal cave, unaffected by current political realities. These judges are human and do know the impact of political patronages going on in our democracy. As such, it is quite disturbing for Justice Chibesakunda to confer reasonability on presidential action simply because the president should have had “credible information” when deciding to suspend Judges Mutuna, Musonda, and Kajimanga.

According to Justice Chibesakunda it is from the authoritative position of “His Excellency” where she and her colleagues infer the idea that he reasoned “reasonably.” I can’t just figure out how Chibesakunda is reasoning here. She is saying that the President cannot possibly act irrationally or unreasonably simply because he is the authoritative president of our republic and head of our State. In my opinion, no opinion of the Supreme Court can get weirder than this. As if that was not enough confusion, the Courts continued to state, “it would be illogical and unreasonable to hold that he did not receive credible information as President for him to act as he did.” This sentence does not make sense to me.

So is the Supreme Court becoming a judge of what is credible information or not? Should intelligence information that a president receives be the basis upon which he can unilaterally fire judges?

Is President Sata the Overall Authority on “Everything”?

And then the Supreme Court comes up with something just unusual. The Court stated that the President is “the overall authority on everything”. What exactly does this statement mean? In Zambia, the President holds executive authority, but this cannot be conceptualized as being the “overall authority on everything”. Which “everything” did the Supreme Court mean here?

And then they justify this overall authority over everything doctrine by claiming that the President’s sources are “exclusive to the public domain and must be impeccable”. Reading this, one would wonder whether this is a judicial opinion, or it is some praise prose intended to catch the attention of a tumultuous suitor. The fact that the president has impeccable sources exclusive to the public domain does not immune the president from acting judicially or quasi-judicially in instituting tribunals which themselves have judicial effects. In fact, human experience has taught us very eloquently that even the most intrusive of executive powers can get its intelligence wrong. Intelligence information that the president has at his disposal is insufficient on its own to form the basis for judicial or even quasi-judicial functions. It is never contemplated in our constitutional make-up that the executive privilege of the President should be so used as to intimidate and suspend judges on the basis of “credible impeccable information” at the disposal of only one man.

Justice Chibesakunda and the cohort of her majority in this case might need reminding that Zambia is not a dictatorship; it is a democracy. Perhaps, here, I could borrow words of great judicial wisdom from Lady Mambilima DCJ. In one of the celebrated cases she stated very eloquently that “The president is not above the law.” This is the line, Chibesakunda needs to repeat to herself daily until it sinks in.

And then Came the “Advise”

This being the case, perhaps what nailed it for the Supreme Court was its last paragraph of the substantive opinion. “Although we agree that the President in exercising the powers vested in him under Article 98 has unfettered discretion under the said Article, we nonetheless believe that it would be advisable” said the judges, “considering the circumstances of this matter, for the tribunal not to proceed.”

With these words ended one of Zambia’s most controversial Supreme Court opinions. Without elaborating on those “circumstances of this matter,” it is up to ordinary Zambians to infer why the Supreme Court felt it was not advisable to proceed with the tribunal in spite of holding, with a forked tongue, that President Sata exercised his powers correctly.

In my humble opinion, the Supreme Court so advised because, they really did not have any reason to hold otherwise. Their reasoning was flawed.

(c) 2013. This article is not intended to provide legal advice. Only members of the Zambian Bar can provide specific legal advise on questions raised in this article. This article has been revised from its earlier editions. Munshya wa Munshya asserts all intellectual property rights to this work.

By E. Munshya wa Munshya

Petitions

After Zambia’s elections of 2011, the party that won the elections, the Patriotic Front (PF) decided to petition dozens of seats won by the opposition parties. Among other reasons for so petitioning, the PF contended that these particular seats had been won either fraudulently or corruptly. Among the seats petitioned are those of close associates of former president Dr. Rupiah Banda who had lost the presidential election to the Patriotic Front’s Michael Chilufya Sata.

The Supreme Court of Zambia nullified the election of Dora Siliya for Petauke, Mutolo Phiri for Chipata Central, and Maxwell Mwale for Malambo. Several other seats were also nullified triggering by-elections in all these constituencies. Some sections of Zambian society have held rather than good will, the PF triggered these by-elections so that they could get the needed majority in parliament to have Zambia revert back to the dark ages of the UNIP dictatorship.

There has been debate about whether under the current electoral laws; a candidate whose election is nullified can stand for re-election in the nullified seat. This question became even more heated after the ruling Patriotic Front accused the Electoral Commission of Zambia of flouting electoral regulations by allowing the nullified candidates to recontest their seats. In addition to the ruling party, a local civil society organization, the Transparency International also asked the ECZ to bar the likes of Dora Siliya, Maxwell Mwale or even Mutolo Banda from re-contesting their seats since the Supreme Court had nullified their elections.

At the heart of this dilemma is the provision from Section 22 (b) of the Electoral Act of 2006 which states, inter alia, that:

Any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the High Court upon the trial of an election petition under this Act shall not be qualified for election as a member of the National Assembly for a period of five years from the date of the conviction or of the report, as the case may be.

Obviously, the Patriotic Front is interpreting this provision to mean that people like Dora Siliya whose election to parliament were nullified by the courts of law should be barred from re-contesting. The Electoral Commission of Zambia (ECZ) on the other in a statement released 1 August 2013, has argued that the ECZ can only act to bar candidate if the High Court provides to the ECZ a report pursuant to Section 104 of the Electoral Act 2006. Section 104 (6) and (7) of the Electoral Act 2006 states as follows:

(6) Where it appears to the High Court upon the trial of an election petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election petition relates, the High Court shall, at the conclusion of the proceedings, prepare a report stating—

(a) The evidence given in the proceedings in respect of the corrupt practice or illegal practice;

(b) The names and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the Court, committed:

Provided that the Court shall not state the name of any person under this paragraph unless the person has been given an opportunity of appearing before the Court and of showing cause why that person’s name should not be so stated.

 (7) The Registrar shall deliver a copy of every report prepared by the High Court under subsection (6) to—

(a) the Commission; and

(b) the Director of Public Prosecutions.

(8) The Commission shall, as soon as it receives the report under subsection (7), instruct an officer to prosecute any person stated in the report.

It is my opinion that the ECZ’s interpretation of section 22 using section 104 is correct at law. As such, for reasons presented below, I would hold that it was never the intention of Zambia’s electoral laws to disqualify any candidate from re-contesting a nullified seat without further instruction and deliberation from the High Court.

The Civil and Criminal Law Distinction

 To clear the confusion, we must first begin by differentiating between the goals of two different aspects of legal suits tenable in the Zambian judicial system: a civil suit or a criminal suit. Each of these come with different remedies and in fact, has different goals. As such, in order to understand the desired outcome of any legal suit, it would be important to first understand its categorization at law. A criminal offence is usually aimed at punishing an offender and is commenced by the state against an offender. An interested party who takes another party to court to seek specific or general remedies on the other hand initiates a civil case. In the context of an electoral petition, a petitioner asks the court to nullify the election of a respondent. The parties to an electoral petition are private individuals contesting competing rights to a seat in parliament.

Criminal law on the other hand has different goals in mind. It seeks to punish offenders for specific offences that have been proscribed through the Penal Code and other laws. According to the constitution of Zambia, the Director of Public Prosecutions is the primary officer that prosecutes criminal offences in Zambia.

That being the case, it is clear that Section 102 (3) of the Electoral Act of 2006 specifically mandates the High Court to “exercise such powers within its civil jurisdiction as it may deem appropriate.” This provision, therefore, shows that the main element of an electoral petition is civil rather than criminal.

Having established that electoral petitions are primarily civil suits, the next issue to deal with concerns remedies. In most cases, a petitioner asks the High Court to nullify an election based on several grounds. The petitioner primarily contends that the election was not free and fair. Based on the evidence she provides, she can then have the court rule in her favour and nullify the election of a respondent.

This then brings us to the question of the standard of proof. In a civil case, the standard of proof needed to prove a case is a balance of probability. This means that it is more likely than not that evidence rendered proves a particular point. However, the Zambian Supreme Court has raised the standard of proof needed in electoral petitions. In the case of Lewanika and Others v Chiluba and in the newer case of Sikota v. Mabenga the Supreme Court ruled that the appropriate standard for proof in electoral petitions should be slightly higher than civil case’ balance of probabilities but must be below the criminal threshold of “proof beyond reasonable doubt.”

Indeed, there is not standard higher than “proof beyond reasonable doubt.” This standard is used in criminal proceedings. The reason for a higher standard in criminal proceedings is that no innocent person should be punished for a crime they never committed and that it is in the interest of justice that the State which has almost unlimited resources should be able to gather all resources necessary to prove its case.

Having dealt with some background information above, I must now turn to the question of whether the drafters of the Electoral Act intended to disqualify candidates from re-contesting their seats. To do so we must focus on the actual text of the Electoral Act.

According to section 22 of the Electoral Act there are several categories of people and situations that would lead to a candidate being unqualified.

Criminal Conviction Bars A Candidate

 First, any person who is convicted of any corrupt practice or illegal practice shall not be qualified. Without further complications, this provision does seem to contemplate a clear criminal procedure. If a person is convicted of any corrupt practice or illegal practice, they are then disqualified. The term conviction is used only in the context of criminal proceedings. It is ridiculous to say that a person was “convicted” in a purely civil matter. The correct term to use in civil cases is “liability” or terms to that effect.

Specifically, when it comes to bribery and corruption, it is the DPP and the Anti-Corruption Commission who can bring a bribery or corruption case against a particular candidate. The ACC Act of 2012 (s.35 (1)) provides thus:

 (1) The Commission has jurisdiction to investigate and prosecute any offence of bribery prescribed under section seventy-nine of the Electoral Act, 2006.

It is Section 87 of the Electoral Act 2006 that explains further punishment for those convicted of an “illegal practice”. The guilty shall be liable on, conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both.

Again to reiterate here, once a candidate is convicted not only would they not qualify to stand for re-election, they would also face jail time. Just as stated above, it is important to differentiate what is going on in a criminal trial and what obtains in a civil case. It is impossible to have a criminal trial within the context of an electoral petition. What an electoral petition can do is to make specific recommendations and observations upon which the DPP may make independent Judgement of whether he could proceed to charge the offender with criminal offences.

“Report” From the High Court Can Bar A Candidate

The second category of people disqualified are those who are “reported guilty” of any corrupt practice or illegal practice by the High Court upon the trial of an election. The first limb of section 22 is quite clear; any one convicted is not qualified. In the second limb however, very interesting words are used. For a person to qualify under this limb, they must have been “reported guilty”. The first one was to do with conviction, while the second limb deals with “report.” This report is only explained in Section 104 of the Electoral Act of 2006 as being the report that the High Court makes to the ECZ. And so, it is expected that if during the electoral petition, the High Court find reasons why a respondent should be “reported”, the High Court will then send the ECZ evidence and transcripts and report such a candidate. The consequence of a report triggers either a criminal prosecution by the DPP or a disqualification from contesting further elections.

The challenge, the “report” provides is that, it emanates from a civil case – that is it emanates from an electoral petition and yet has consequences similar to criminal convictions for corruption. In the case of Sikota v Mabenga, the court held that even if the case was of a civil nature, the respondent’s actions where so outrageous that they bordered on criminality. In its Judgement, the Supreme Court even went to the extent of recommending the prosecution of Mr. Michael Mabenga for corruption and theft of CDF funds. It is this kind of clear Judgement, which in my opinion triggers the application of S.104 (7) of the Electoral Act. Without categorical report about corruption from the High Court, it would be difficult for the Electoral Commission of Zambia to act and bar a candidate.

Conclusion

Without clear guidelines from the High Court that a candidate did in fact participate in some form of corruption or bribery of theft, it would be unfair to disqualify them from contesting their vacant seats. On the other hand, if a candidate has been convicted of corruption or stuff like that, then they must not stand as candidates. As for Dora Siliya, Michael Sata and Wynter Kabimba should prepare to meet her in Petauke as their “catch 22″ has failed.

(c) 2013, Elias Munshya wa Munshya is not a member of the Zambian Bar. Specific legal advise should be sought from members of the bar. This article is for educational purposes only and does not intend to convey legal advise. 

By E. Munshya wa Munshya

President Michael Chilufya Sata – The King Cobra

President Michael Sata in May 2013 used his powers as President of the Republic of Zambia to withdraw government recognition of one Henry Kanyanta Sosala as Senior Chief Mwamba of the Bemba people. According to President Sata, Sosala did “not fully undergo Bemba rituals for him to ascend to the throne of Senior Chief Mwamba.”[i] Just what made Sata to be the arbiter of Bemba rituals is an open question we attempt to ask in this article.

After some hesitation, Henry Sosala succumbed to presidential pressure and conceded to President Sata’s demands. He resigned from the Mwambaship and apologized to President Sata for the embarrassment he had caused him.[ii] On the other hand, the Bemba traditional elders were quite displeased with what they perceived to be President Sata’s interference with their traditional matters. In a meeting held with President Sata’s emissaries, Chiefs Affairs Minister Nkandu Luo and Defence Minister Godfrey Mwamba, the Council of Bemba elders (Bashi Lubemba) expressed concern at the president’s action and asked that Sata stops to interfere in traditional affairs.

In August 2013, two months later, the same traditional council sat and decided to pick the same de-gazetted Henry Kanyanta Sosala as the next king of the Bemba Commonwealth. This in many ways went against President Sata’s wishes. First, the President had initially degazetted Sosala as Chief Mwamba. Second, Sosala himself had succumbed to presidential pressure and left the throne. Third, it is quite unusual that the Bemba traditional council would go ahead to grant supreme control to a chief who had been degazetted by the president.

That this act by the Bashi Lubemba will set of some stand off with President Sata is clear. Some reports suggest that president Sata has personal interest in the Bemba chiefdom that makes him desire to have a close relation of his to ascend to the Bemba chieftainship. In clear defiance of his wishes, the Bashi Lubemba have made perhaps one of the clearest statement to president Sata that they will not succumb to his wishes. As far as they are concerned, they have made the choice of a new paramount chief of the Bemba, and that person will have to be Sosala – the same person, President Sata degazetted.

In this battle, it is our opinion that President Sata should desist from causing any further confusion in the Bemba traditional affairs. It is also our submission that if president Sata decides to act any further against Sosala or against the Bashi Lubemba, it will be a battle he cannot win. And this is so, for several reasons.

It is important to set aside some misconceptions concerning the Bemba Empire. There has been some reports that President Sata being Bisa of Mpika cannot and should not have any interest in the Bemba traditional affairs. The truth is that in the present state of affairs, while the Bisa peoples and the Bemba peoples remain distinct, there has been incessant blurring of that distinction. As such, the argument that President Sata does not have tribal or familial interest in the Bemba affairs because he is not Bemba is an accusation not steeped in reality.

In the Bemba and Bisa ruling aristocracy, there is no distinction between a Bisa and a Bemba. We could take one example: the Chibesakunda chiefdom of Chinsali. Even if the Chibesakunda chiefdom is a chiefdom of the Bisa, Chief Chibesakunda herself is supposed to be a Bemba belonging to the Ng’ona clan. Essentially, then the Bisa people of Chinsali have a Bemba lineage ruling over them. However, with intermarriages and in fact, matrilineal system of succession the distinction that should exist between who is Bemba and who is Bisa in the royal household of Chibesakunda and indeed among their subjects has been blurred further. The auxiliary blurring of these lines happened a few years ago when the Chibesakunda Royal Court appointed Bob Bwembya Luo, a Bemba from the Ng’andu clan to become the Chief Chibesakunda. This brought some protests from a Bisa and former parliamentarian Newton Ng’uni[iii] who in March 2007 wrote that the new Chibesakunda was actually a Bemba from Abena Ng’andu and as such could not ascend to a throne reserved for Abena Ng’ona. President Mwanawasa’s government was swift in gazetting this new Chibesakunda, partly to bring stability to the chiefdom, which had not had a substantial chief for decades.

Using what happened with Chibesakunda as an example, the choice of a chief by a royal council is almost sacrosanct; courts of law do not and should not interfere with choices done by the royal council. This being the case then, those who think that a Bisa has no interest in the Bemba traditional affairs unfairly target President Sata.  We must submit however, that President Sata’s interest or interference in Bemba traditional affairs should not go to the extent of meddling with the Bashi Lubemba.

Traditionally, the Bashi Lubemba is the Bemba Royal Council that is custodian of Bemba traditions. It also carries out the sacred duty of choosing of the successor of the Chitimukulu throne. In Bemba traditional management the second most senior throne next to the Chitimukulu is the Mwambaship. After Mwamba comes several other chiefs such as Mpepo and Nkula. It was customary that after the death of Chitimukulu it is the Mwamba that accedes to the throne.

However, it is not automatic that Mwamba becomes Chitimukulu for it is the Bashi Lubemba who appoints a Chitimukulu. A few years ago, the Bashi Lubemba in favour of a chief Mpepo bypassed a chief Mwamba. Mwamba then decided to take the matter to the High Court. At first instance, Justice Nyangulu declared Mwamba to be the next Chitimukulu and chastised the Bashi Lubemba for not following customary law that made a Mwamba to be the next Chitimukulu. Mpepo appealed against this decision and the Supreme Court reversed Justice Nyangulu’s decision. In that case, the Supreme Court made some very important pronouncements with regard to customary affairs in Zambian traditions.

According to the Supreme Court, even if customary practice mostly favored a Mwamba as the automatic successor to Chitimukulu, the decision of the Bashi Lubemba was final with regard to whether Mwamba would become Chitimukulu. For Justice Silomba, “the Bashi Lubemba have the final say over who takes over as Chief Chitimukulu and are not restricted to the system of ladder climbing and seniority.”[iv] Essentially then, the Bashi Lubemba are the custodians and the courts of law should not replace their customary advice and input. Fundamentally, it is the Bashi Lubemba who make Bemba chiefs.

The Bashi Lubemba are important in making the Chitimukulu because they comprise both the rulers of the Chiefdom and the priests of the chiefdoms. The Bemba royal house strikes a balance between the ruling clan (Abena Ng’andu) and the ritual priests (Bakabilo). A Chitimukulu can only succeed in leading the Bembas if indeed she has the blessing of the ritualists. Royal birth does not automatically entitle one to being Chitimukulu; it must be supplemented by the approval of a clan different from the Abena Ng’andu. It is in this vein, that the decision from the Bashi Lubemba should be respected.

President Sata’s original decision to dethrone Sosala as the Chief Mwamba was that Sosala had not followed proper ritual procedure. The problem here is that the President even if as a Bisa does have an interest in the Bemba chiefdoms, does not have expertise to advise the Bemba royalists about what that ritual procedure must be. President Sata is president of our republic; he is unfortunately not an expert in ritual practices of the Bemba peoples, even if he belongs to the greater Bemba commonwealth. Indeed, if the Bashi Lubemba are wrong in their choice, it is not for President Sata to make that call.

In fact, there is precedence where a white Catholic priest, Father DuPont, acceded to the throne of Mwamba with full approval from the Bemba royal household. As far as tradition is concerned, it is what the Bashi Lubemba decide that should carry the day with regard to matters of succession. If indeed, the Bemba royal household had erred to have Sosala as Chief Mwamba, President Sata could not unilaterally decide to reverse such a resolution.

Leaving the Sosala and Mwamba saga aside, the recent decision of the Bashi Lubemba to recognise this same Sosala as Chief Chitimukulu makes things even more difficult for President Sata. Sosala has several things going well for him. First, he was the substantive Chief Mwamba chosen by the Mwamba royal household, and secondly, he has become the choice of the Bashi Lubemba to be the next Chitimukulu. With these two going for Sosala, President Sata is in a serious quandary as to what he would do next.

For sure, there is no dispute between any competing pretenders to the Chitimukulu throne. The choice of customary practice, going by Justice Nyangulu’s test favors Sosala and so is the supremacy of the Bashi Lubemba (going by the Supreme Court test). This being the case, President Sata in combating the Bashi Lubemba will quickly realize that a Cobra cannot quite win if it fights the Crocodiles. Abena Ng’andu with their colleagues the Bakabilo, in the Bashi Lubemba, will shame the Bisa Cobra, again.

© 2013, E. Munshya wa Munshya, LLB (Hons), M.A, M.Div., For more information about our articles please visit http://www.eliasmunshya.org.

By E. Munshya wa Munshya

On Tuesday, 3 September 2013 Justice Mungeni Siwale Mulenga ruled in the case in which Dora Siliya and others had sued the Attorney General and the Electoral Commission of Zambia for banning her and her friends. The media outlets have ably reported that Dora Siliya and her friends have won. Justice Mrs Mulenga reversed the decision of the Electoral Commission of Zambia and instructed the electoral body not to bar Siliya and her crew.

A detailed analysis of the issues to do with this case is beyond the space and scope of this article. That being the case, there are a few “take-aways” from this ruling.

The fact that the judiciary has faced tremendous criticism about its partiality has been very well highlighted in the past few weeks, if not months. In fact, I have written in this column the need to have a new face at the helm of the judiciary. It has been my position that the Acting Chief Justice Lombe Chibesakunda is very compromised due to the fact that she does not satisfy the requirements of the constitution to be appointed to that position. She is passed retirement age and parliament has refused to ratify her.

The so-called judicial press statement, she caused to be written, by Terry Musonda has only gone to show just how partisan Madam Chibesakunda is. I will return to this matter later.

Madam Chibesakunda’s majority holding in the case of Mutuna and others v. Attorney General also demonstrates an insane amount of judicial partiality and political sycophancy on her part. It seems that Mutuna was not decided based on law, but based on other political considerations. Remarkably, Chibesakunda in that case went to state that the Zambian president is the “authority on everything.” That statement is, for lack of a better term, total nonsense. In a democracy like ours, there should be no place for a judge to hold that the president of Zambia is the authority on everything. This nonsense is more apt for the days more barbaric than ours and for a generation of Kaunda and not this generation of the third republic. All well meaning Zambians should reject such paternalistic innuendoes.

Additionally, in the face of such brazen judicial confusion prompted by illegally appointed Chibesakunda it, therefore, is exciting to have a judge like Mungeni Siwale Mulenga who sees through the façades and redeem the face of the judiciary. It is judges like Mulenga who offer hope to the current judiciary. In fact, without these judges, the judiciary would have already turned into a congregation of kangaroo courts presided over, not by kangaroos, but by dinosaurs.

Justice Mulenga took the issue of Terry Musonda’s press statement head on and made it very clear that this statement not only lacked juridical value, but also was wrong to purport to have been issued in the name of the judiciary. The statement was void “ab initio”. She equally took issues with the purported letter authored by the deputy registrar of the High Court of Zambia. In her own words Justice Mulenga stated:

“I have deliberately placed the word ‘judiciary’ in inverted commas as it is not apparent on the face of the press statement and the letter which Courts or offices comprised the Judiciary whose opinion was being advanced”.

And then Justice Mulenga goes to make perhaps one of the most profound statements that should serve as good law for the future. She stated on page J38 of her opinion that,

“in the history of the Judiciary in Zambia, there has never been occasion where the institution has given interpretations of the law through press statements”.

This judgment does seem to highlight some ineptitude on the part of Zambia’s attorney general. I am of the opinion that looking at his performance and legal analysis, Mumba Malila could perhaps capture the honor of being Zambia’s worst attorney general. I just wonder why President Sata had to call him back after his murky performance under the Mwanawasa government. In stating that Malila is inept as Attorney General, this should not be misconstrued to mean that I do not think that he is sharp and intelligent. In fact, reading through Malila’s academic writings before he became attorney general you get the feeling that you are reading a modern human rights lawyer who is aware of the consequences of judicial action. However, this is not reflected at all in his work as attorney general. One would wonder why the same Malila who was a passionate human rights lawyer would a few years later decide to defend perhaps one of Zambia’s greatest anti-human rights legislation: the Public Order Act.

In the present case of Siliya, Malila does not appear to be forthright. His objective was to have the case dismissed even before a hearing was conducted. In the preliminary issues he raised, Malila argued that the statements from Terry Musonda, from Priscilla Isaacs and from Wynter Kabimba should be ignored absolutely. He claimed, that these “were mere statements with no legal force” (p. J20). He does not end there, however, he even goes on to claim that Dora and others could bring him back to court after the by-elections are conducted even without their participation. He seems to want to keep his cake and eat it too.

On one hand, he claims ECZ was right to bar the candidates, and then in the next minute he argues that in fact, whatever statements were issued by Terry Musonda and Priscilla Isaacs did not have legal value. This is a classical case of cognitive dissonance at its best.

And then of course, hilariously, Malila claimed that the ECZ statement and that of Terry Musonda were of a general nature and did not specifically name any of the three applicants: Dora, Maxwell and Hastings. Here, the learned attorney general seems to be acting like a bully at Chabanyama Primary School who refuses accountability because he had not “named any names”. This was a very lame reason to say the least.

But Justice Mulenga was very vigilant. She ruled against all the three preliminary issues Malila had raised. Honestly, it would be futile to only entertain Dora after the ECZ has already had elections in Petauke.

Malila’s behaviour should not be surprising though. Zambia’s worst brain drain has nothing to do with professional Zambians who have migrated to other countries. The worst brain drain in Zambia happens to well-educated professionals after they acquire political power. As such, you wonder where the legal and human rights brains disappeared to in Malila after he became Attorney General of Zambia.

This judgment has also helped to clarify electoral laws. For example, Justice Mulenga has had to decide on the right standard of proof needed when the High Court is issuing the report about a petition in connection with s.104 of the Electoral Act 2006. It is clear that according to the case of Lewanika and Others v. Chiluba, the Supreme Court reaffirmed the standard of proof needed in an electoral petition. The standard of proof is somewhere between the civil standard, the balance of probabilities and the criminal standard of beyond reasonable doubt. However, when it comes to issuing a report about a corrupt candidate within the meaning of s.104, the standard of proof needed has got to be closer to the one needed in a criminal trial – beyond reasonable doubt. Justice Mulenga, rightly, rationalizes that due to the penal character of the “report” it is important that guaranteed rights are protected and that only those who are morally blameworthy should be barred. The standard that meets these objectives is none other than the standard of beyond reasonable doubt.

Indeed, it would be a great injustice to bar a candidate from voting for five years and from contesting elections for that period only on the basis of the standard of balance of probabilities. When the consequences of evidence would result in serious impairment of one’s constitution rights, the interests of justice demand that a higher standard of proof be adhered to. The sanctions envisaged in s.22 and s.104 are “grave and penal hence the need for the requirements to be strictly followed”, she wrote in her opinion.

Additionally, the High Court report is not automatic. According to Justice Mulenga,

“the mere fact that the High Court nullifies an election based on corrupt or illegal practice does not in or of itself constitute guilty report of the candidate whose election was nullified.”

To comply with the law, Dora Siliya was going to go back to the courts and have the courts institute proceedings aimed at issuing a report to bar her. But this process should be done in a judicial manner.

For now, it looks like the Electoral Commission does not want to appeal this ruling any further. They have complied and announced 10 September 2013 as the nomination dates for Petauke, Malambo and Mulobezi. And in all fairness, let these by-elections be fought before the people and not before the courts of law.

Disclaimer: This post is not intended to convey legal advice. Those in need of specific legal advice should consult members of the Zambian Bar.

By Munshya wa Munshya

 Fighting for his political survival, Hon. Wynter Kabimba, made a very significant comment that his party has a clique of Bemba political hegemonists. Even Guy Scott has supported Wynter in these assertions. A daily newspaper has also, in its editorial, made the same allegations: there seems to be a Bemba clique within the PF that wants exclusive political control. Kabimba, further, acknowledged that he had been naïve all along. We’ve been telling Wynter all along that the PF is a tribal party, but it is only now that he has suddenly realized it. After this reality had sunk in, Wynter realized that the party he thought would rule Zambia for 100 years was in fact, a tribal party. Since Bo Kabimba has joined in this conversation, it would be just and prudent for all of us to continue it. After all, democracy is an orgy of ideas.

At independence in 1964 Zambia’s first president naively thought that Zambia had entered a new era of post-tribal politics. Kaunda had managed to convince the Litunga to have Barotseland proceed to independence, with the rest of Zambia, as one nation. However, just three years into power, Kaunda realized that the Zambian tribes were not as united as he had previously thought. The first post independence UNIP convention saw a very bitter tribal fight. The Bemba—Tonga pact had at the UNIP convention bitterly defeated the Lozi—Nyanja alliance. Kapwepwe was elected UNIP’s vice-President to the consternation of Kaunda. Reuben Kamanga, an easterner, was soundly defeated. In fact, it was during this time, that some UNIP stalwarts started doubting Kaunda’s loyalty to the Bemba tribe since he had Malawian parentage. Kaunda knew very well that he needed to do something more to overcome this new era of tribalism that had started to engulf the nation.

To overcome this, Kaunda retraced and reemphasized his loyalty as a Bemba subject of Chief Nkula in Chinsali. He also made a point to try and persuade Kapwepwe to step aside since two Bembas could not possibly hold two top positions in both UNIP and the government. Kapwepwe reluctantly obliged and Kaunda quickly brought in Mainza Chona, a Southerner to replace Kapwepwe. But this deeply displeased Kapwepwe and several other Bemba hegemonists, who later proceeded to found the UPP, a party whose principal popularity was in Luapula Province and its Copperbelt subsidiary of Mufulira.

To cure the issue of tribalism Kaunda started what he called Tribal Balancing. In this new arrangement he made sure that the provinces were well represented in government. It was so intentional that you could actually predict who would be in Cabinet and who would not. In this new arrangement the position of Prime Minister was almost exclusively reserved for either Barotseland or Southern Province. Out of six Premiers, from 1973—1991, four were Lozis and the other two were Tonga. This was KK’s tribal balancing at its best.

When Chiluba came into power, the intentional and deliberate tribal balancing was effectively overruled. Chiluba now claimed that he would appoint people on “merit.” However, it still remains to be answered why under Chiluba almost all Parastatal chiefs seemed to originate from Luapula Province. From just this it may be clear that appointment on merit may have meant tribal merit as well. But even if this is the reality with Chiluba, he was never accused of playing tribal politics. I guess if it were a Lenje doing the same thing, some vocal quarters could have condemned the practice.

It seems like; there is an assumption, a disturbing one for that matter, among some Zambians that only non-Bemba speaking peoples are more capable of tribalism. This is obviously erroneous. It should be quite surprising that President Sata would in one breath appoint an exclusively Bemba cabinet and in the next condemn Hakainde Hichilema for tribalism. Of all the presidents, it is the Bemba-speaking presidents who in fact have appointed more of their tribesmen to power. Chiluba and Sata have appointed more Bembas in their cabinet and Parastatal companies. What is surprising is that in spite of this, these presidents still deny being tribal.

When leaving power in 2001 Chiluba wanted to have a minority tribe to take over. This honour obviously fell on Mwanawasa—of both Lamba and Lenje heritage. Even without objective evidence, Mwanawasa was quickly accused of appointing a family tree in his cabinet.  Opposition leader Michael Sata was the main accuser. But once objectively assessed you will notice that Mwanawasa’s cabinet was more tribally balanced than any other in history. Mwanawasa also brought in some tribal diversity in Parastatal companies. However, when he appointed Sisala as ZESCO Managing Director, more tribalistic accusations were leveled against him. This again plays to my thesis that several Zambians believe, erroneously, that only non-Bembas are more capable of tribalism.

Under the Rupiah Banda presidency, the issue of tribalism took on a new shape all together. What was even more surprising with Rupiah Banda is that in spite of only having five easterners in his cabinet, opposition leader Michael Sata repeatedly accused Banda of practicing tribalism. Five easterners in Rupiah Banda’s government by far pale the over 70% Bembas in Michael Sata’s government.

President Sata has appointed more of his tribesmen to both Cabinet and the diplomatic service. But in spite of this, he still denies that he is a tribalist. I don’t know what measures tribalism better than a president’s exercise of prerogative powers. If a president appoints more of his tribesmen than any other tribe, surely, we could easily conclude that tribe must be playing a more prominent role than any other consideration. The idea that this president tries to balance brains is even more insulting to other tribes considering that these so called brains are derived primarily from Luapula-Muchinga-Northern corridor.

In the Bible both Joshua and Moses were repeatedly asked to choose men from each tribe of Israel. Tribal balancing does have some biblical basis as well.

Tribalism is alive and well in PF because President Sata tolerates and in fact, flourishes in it. Action speaks louder than words. If President Sata wants to put a stop to this tribal nonsense, then he must act and act decisively. The president should not be seen to be acting with a forked tongue – condemning GBM and his group while at the same time doing nothing concrete to put a stop to GBM’s tribal crusade, as alleged by Wynter. But to add more salt to injury just this week His Excellency sent two more Bembas to the diplomatic service.

Munshya wa Munshya

Tribal diversity should be the bedrock of our republic. No one should be ashamed of his or her tribe and no one should be made to think lowly of their heritage. The rivers of our national identity pass through the valleys of tribal and ethnic diversity. The dream of One Zambia, One Nation is not a motto that obliterates differences, but a tool that unites diversity for the national good. In Zambia, all people from all tribes and ethnic groups should feel a part of their country. From Mongu to Mwansabombwe and from Milanzi to Milenge, it should be clear that our country is better and stronger once diversity is not only recognized but also respected.

Our national motto is One Zambia One Nation and not One Bemba One Nation. It should be simple common sense to realize that a little tribal balancing could help foster unity more than this crass preference for the peoples of Luapula-Muchinga-Northern corridor.

 Munshya wa Munshya

 Zambia Institute of Advanced Legal Education results are out. And they are pathetic. Out of over 200 candidates only 6 managed to pass the legal practice exams. Another six of repeaters have passed. Now this number translates to a meager 3% pass rate. The next number is even more worrying, upsetting actually. Ninety-seven per cent of all candidates have failed. Nothing should define a crisis in the legal system than this pathetic failure ratio. Indeed, with a pass rate this low and a failure rate so high, the Zambia Institute of Advanced Legal Education should rightly be called the Institute of Advanced Legal Failures or something to that effect. The collateral effect of this deplorable pass rate at ZIALE is that instead of leading to legal excellence, this institution will lead Zambia into legal extinction, into doldrums. The numbers just don’t add up.

Currently, Zambia has about 800 lawyers. Applying this number to our general population means that there is only one lawyer for every 20,000 of us. If all lawyers were to be spread across the country and evenly distributed in the depth and breadth of Zambia, there will be a distance of about 250-kms between each lawyer. What this means is that there is just not enough lawyers in Zambia to go round. The lawyer to population ratio is just too high. This is unsustainable in the long run.

Legal access is a fundamental element of the rule of law. Zambia cannot achieve adequate justice without adequate legal representation for its people. From Mongu to Milenge and from Chipata to Chavuma, remand prisons are full of our people who are incarcerated, without bail, because they do not have access to adequate legal representation. This is pathetic and a betrayal of the fundamental provisions of the rule of law. And instead of helping heal this gap in the lawyer population, one wonders why ZIALE should continue to perpetuate lawyer shortage.

With this failure rate, if ZIALE were the regulator of medical doctors, government and indeed the population would have long reacted. Indeed, if ZIALE were the regulator or examiner of nurses, the population would have long noticed and this wholesale failure would not have been tolerated a single day. I still wonder why in spite of this tragedy in the number of lawyers, ZIALE should be permitted or even allowed to be passing a meager six lawyers per examination period. Something must change.

In our democracy, the supply for lawyers is not a benevolent offering of a few lawyers. It is an imperative of good democratic governance. In fact, just as we demand for medical doctors to fill our clinics, so should we demand for more lawyers to fill our chambers. Without lawyers, the rule of law becomes a pipe dream only available to the bourgeoisie of Lusaka.

There are some eminent persons among us, who argue that ZIALE is doing well in regulating how many people get into law so as to limit the number of lawyers. With due respect, this argument can only be sustained if indeed we were dealing with an oversupply of lawyers. Reality sharply contradicts this line of thought. Zambia does not have an oversupply of lawyers; it has an undersupply of them. It is, therefore, ridiculous to suggest that ZIALE should continue to trickle down a few lawyers each year in a society that already needs hundreds of lawyers each year. It is consequently, nonsense, to argue that we have too many lawyers. I actually cannot see how one lawyer for every 20,000 people can become an oversupply.

Another issue that should be dismissed with contempt is the erroneous idea that most of the law graduates who go to ZIALE are in fact of low calibre. Indeed this argument could be sustainable only if it is a few failures we are dealing with. In this case, it is not a few failures we are dealing with but rather almost all of our brightest. It is bizarre to think that almost all of Zambia’s LLB graduates, from both UNZA and other private universities, are in fact of such low calibre that only 6 or 10 of them are worthy to become lawyers. It just does not make sense at all.

All the other excuses that ZIALE has been using are just as pitiful. ZIALE and its council should have run out of excuses by now. The ordinary people of Zambia want answers. Someone must put a stop to the baloney that is going on at ZIALE. The excuses such as lack of accommodation for students make no sense too. There should be no relationship between student accommodation and this pathetic failure rate. ZIALE should reform or it should be disbanded.

There is a very worrying tendency, even among practicing lawyers, to treat law as a fundamental preserve of a few. Indeed, this tendency or philosophy should have been truer to the old tired regime of the First or Second Republics. In the Third Republic, each citizen of our great nation owns a part of the legal destiny of our country. And no one institution should hold hostage the legal development of our country to please a few somewhat selfish individuals that want to keep a tight rein on the law profession.

What then should be done about ZIALE? The ZIALE scandal should not be left in the hands of lawyers alone. Lawyers are by nature risk averse. They are trained to not take risks. Calculation and over-carefulness are the caricature of all legal education. Lawyers alone will not reform ZIALE. Indeed some are unwilling to. Had they wanted to do so, they would have prevailed upon the powers that be to change the law or do something about it. But no, they won’t, even if it means overstretching themselves over a distance of 250-kms purporting to do an impossible feat of serving 20,000 people each day.

Zambia’ Attorney General is in a unique position to influence change in the legal fraternity. Doing this however, could come with a political risk for her. We must support and prevail upon the Attorney General and other politicians to prevail upon parliament to bring changes to ZIALE. The Attorney General plays an important role in our democracy. Importantly, she is the leader of the Zambian bar. But more than that she is the principal legal representor of the juristic public interest. As a quasi-politician, the AG should be more aware of the political pressure exerted by the people. It is at this level where those demanding changes at ZIALE can begin. The crisis at ZIALE should be moved from being a pure legal issue to become a wider crisis that threatens the public interest and the growth of our democracy. With political pressure, ZIALE can be reformed.

Current law students can also join the thousands of ZIALE failures to do something. To demonstrate along Cairo Road and perhaps make some noise along Great East Road and bring visibility to this issue. Additionally, all law students and graduates in Zambia could one year boycott ZIALE. Send no application there. Send a clear message. It cannot be a fair process that which collects billions of Kwacha in fees only to select the lucky six for law licenses. Action should begin now.

There is 1 lawyer for every 20,000 of Zambians

I am curious though to find out what professors at ZIALE really teach their students as to account for this low pass rate. Do they teach them in Hebrew only to examine them in Greek? Indeed, it is either these law graduates are so dull or it is to the professors we must direct this criticism. Zambia will be better and greater with a few more lawyers in it. But with the failure rate at ZIALE so high we shall continue to have 20,000 of us chase the skirts or robes of one lawyer. And the problem is that there are just not enough skirts or robes to go round.

 Munshya wa Munshya

Reimagining The Myths of Our Nation

Myths are powerful. Not only do they create nations, but they also perpetuate them. No nation can last, for a day, without some story justifying its existence as a nation or as a group of nations. Human genius knows no better partner than the myth of national storytelling. Through myths, we tell stories of our nation. Through myths, we philosophize our nationhood. Through myths, we define the perimeters of patriotism and demarcate the fields of vision and national purpose. It, therefore, goes without saying that while myths might provide ammunition to run a nation; they can in the same vein ruin a nation.

Forty-nine years of our independence call for deeper reflection of those myths and stories told to us about our country. With the 49^th Independence Anniversary comes the activity of mythmaking and story telling. The problem with these myths is that once repeatedly told the same way, they stop making sense. They become stale. They cease to inspire. Cast in this tired light, the independence narrative becomes a burden. When this happens, we must awaken ourselves to seek a renewal and a reawakening of national mythmaking.

Forty-nine years after independence, most of our people still live in abject poverty. May be Hakainde Hichilema is right: it is not enough just to celebrate independence; we must have something to show for it. However, within the context of disappointments, it is easy for the population to give way to despondency and hopelessness. In the face of failed fruits of independence we must, actually we should, recast the independence story in ways that are relevant to our times. Independence Day should not just be a day where we gather and listen to the same old and drowsy story of how we fought the Europeans. It should be more than that. Each Zambian should see themselves within the context of a continuous story.

The reimagined Zambian myth should begin by challenging and questioning the popular assumptions of what it really means to be Zambian. In spite of evidence to the contrary, Zambia at the turn of independence became a victim of a citizenship formulation that was, at most, a lie. This formulation envisaged a nation with “pure Zambian citizens.” This primordial paradigm, unfortunately, has continued unchallenged almost 50 years after independence. Kaunda at independence demanded for pure Zambians, and so did Chiluba with the 1996 amendments to the constitution. The current sidelining of Guy Scott by Michael Sata also shows that the puristic views of Zambian identity are still prevalent.

The 1964 explanation of what it meant to be a citizen made people like Kaunda to live in absurdities. For his part, Kaunda tried to cure this absurdity by writing to the Malawian government so as to renounce his Malawian citizenship. That 1973 letter goes to show the inadequacy and utter drivel of one-dimensional outlook of citizenship. In an African country like ours, it should not have been required of Kaunda to renounce his Malawian connections. He should have been allowed to be both Zambian and Malawian. Indeed, in the modern Zambia, many of our people are realizing and abandoning the purist one-dimensional view of what it means to be Zambian. As a nation, Zambia will comprise of peoples transecting varied demographics, religions, and persuasions. Whites, blacks, Indian and mixed race peoples are uniting and claiming a share in the process of mythmaking. People like Guy Scott and Dipak Patel should be given the full rights and recognition of citizenship. There should, therefore, be no justifiable reason why Guy Scott should not act as President of Zambia. In a reimagined myth of Zambia, we do not discriminate based on origin or based on the past. Rather, we unite those minds among us who share a common destiny. In this reimagination, Zambia becomes to us a destiny more than a heritage. A heritage connects us to the past, but a destiny connects us to the future. When we say we are Zambian, it is not to the past that we are seeking an identity, but rather it is to the future.

The reimagination of Zambian nationhood should also embrace the many Zambians who now live outside of the country. The present government should give a hearing to the many demands from the diaspora to recognise dual nationality. It is absurd that in the face of globalization, Zambians can become global citizens while being denied the legal protection of citizenship in their own country of origin.

A reimagination of nationhood might also involve a confrontation of our identity as a Christian nation. It goes without saying that most Zambians are Christian. In fact, beginning from independence, even Kaunda recognized Zambia as a Christian nation. By declaring Zambia as a Christian nation in 1991, President Chiluba was merely affirming a reality consistent with what Kaunda and others believed about Zambia. The fact that the Christian nation declaration forms part of the preamble to our republican constitution goes to show the significance of Christianity to our people. But the Christian nation identity of our country should be reimagined and recast in ways that, nevertheless, recognise the religious diversity of our country. Even if we have minority religions in Zambia, people who adhere to those religions must be accorded the same constitutional protections accorded to Christianity. In spite of being a Christian nation, Zambia is not a church and certainly not a parish. Our country is made up of a diverse cadre of adherents to various religions. This religious diversity should be recognised and respected. Our government should not run affairs of this nation in ways that deny constitutional liberties to citizens. As such, the Declaration should not be taken as a tool to oppress non-Christians. It is in this vein, therefore, that it worries me for Information Permanent Secretary Emmanuel Mwamba to cancel radio licenses to Muslims for the fact that they are Muslim. Tyranny against one group is tyranny against all groups.

Munshya wa Munshya

Reimagining the myth of nationhood also means that we must relook at the meaning we assign to mottos such as “One Zambia One Nation”.  One Zambia One Nation motto is perhaps one of the founding myths of our republic from which many in Zambia derive a great sense of unity and patriotism. But there are areas in which this motto has been so interpreted not as a tool of liberty, but as a tool of tyranny. The aspirational value of One Zambia One Nation means that, it is the various sects and tribes and peoples of Zambia that are contributing equally to the creation of a modern state. This motto should make each sect in our nation to be more humble towards others. It means that the majority should never think they are the only ones making Zambia, but rather that Zambia, like a human body, survives and subsists through the contribution and sacrifice of even the smallest parts. In practice, it means that we will not let this motto to delegitimize our tribes, but rather that this motto will legitimate our tribes while assigning a new aspirational vision.

There are many ways we could begin the process of reimagination of the myths that make our nation. I offer only but a few hoping that as we all participate in our nation building, we will find ways and opportunities to build. The Zambian myth is no greater than the people making it. At 49, we are presented with a rare opportunity for imagination and reimagination.

 Munshya wa Munshya

William Harrington, a private citizen of Zambia wrote the Chief Justice of Zambia requesting that a tribunal be instituted to probe the activities of a cabinet minister. Hon. Sylvia Masebo is alleged to have committed some irregularities with regard to her role in personnel firing, board appointments and subsequent awarding of tenders in the Ministry of Tourism and Wildlife. Harrington petitioned the Chief Justice in keeping with the Parliamentary and Ministerial Code of Conduct. At section 13 (1) the Code states that:

An allegation that a Member has breached Part II may be made to the Chief Justice by any person, in writing giving particulars of the breaches or breaches alleged, signed by the complainant and giving the complainant’s name and address.

What is so interesting about the facts of this case is how similar they are to a case, again brought by the same William Harrington (Harrington v. Siliya & Attorney General [2009]). In the Siliya case, Harrington had brought similar charges accusing Hon Dora Siliya of obtaining pecuniary advantage from her position as Minister of Transport and Communications. The Siliya case made its way up to the Supreme Court and its ratio decidendi must be relied on in this new case of Masebo.

With regard to Harrington v. Masebo, however, the Acting Chief Justice of Zambia, Lombe Chibesakunda neglected to constitute a tribunal. Among other reasons, she rationalized that she did not have sufficient information from Harrington. Harrington sought judicial review of Chibesakunda’s decision and Justice Sichinga of the Lusaka High Court ruled that under the Ministerial Code of Conduct the Chief Justice of Zambia should have constituted the tribunal.

When Harrington petitioned Justice Sichinga, Zambia’s Attorney General joined the proceedings, as expected. Mumba Malila was of the view that the Chief Justice was right in her decision to stall in appointing the tribunal. Obviously, Mumba Malila lost this case and Justice Sichinga sided with Harrington. Chibesakunda was going to appoint the tribunal.

Zambia’s Chief Justice, in so far as she functions within contemplation of the Ministerial Code of Conduct, is not functioning as a judicial officer but rather as an officer of the administrative state. And so with regard to her constituting of the tribunal she is subject to normal judicial review procedure. It is, therefore, not surprising that a judge, one court her junior, compelled her to appoint a tribunal. After Sichinga’s ruling, Chief Justice Chibesakunda complied with the court and appointed a tribunal to probe the conduct of Hon. Sylvia Masebo. However, before the tribunal could sit, Sylvia Masebo and the Attorney General applied to court to have this decision stayed as the Attorney General appeals to the Supreme Court.

What is at issue here is whether Zambia’s Attorney General can in fact appeal against a tribunal set-up to probe a political leader. In other words, is it legally right within our legal and political system of governance for Mumba Malila to appeal against the formation of a tribunal by the Chief Justice?

The goal of the Ministerial Code of Conduct is clearly laid down in statute. It is aimed at increasing political accountability of members of cabinet not only to the president but also to the people of Zambia directly. Section 3 (1) of the Ministerial Code of Conduct Act states that:

The provisions of this Part shall constitute part of the code of conduct for Members for the purposes of the Constitution, a breach of which results in the vacation of the seat of the Member concerned.

It is the people of Zambia who appoint and vote for politicians to lead in governing. However, it is within contemplation of both the constitution and statute that politicians will have to account personally for their official acts. It is in this vein, therefore, that the role of Harrington should be seen and interpreted. This being the case, the Attorney General of Zambia, should not appear to be impeding political accountability of ministers to the people of Zambia. Instead of impeding this accountability, the Attorney General should be enhancing it.

The law governing the role of the Attorney General in our democracy can be found in at least three sources: the common law, the constitution and statute. Constitutionally, the role of the Attorney General is espoused in Article 54 of the constitution. Statutorily, the role of the Attorney General can be found in various statues that bring his role under contemplation. The common law also has some specific judge made rules regarding the role of the Attorney General. A review of all these three sources reveals the following principles.

First, the AG is the principal legal advisor of the government. This means that she is the lawyer or counsel for the president and his government. Typically then, President Sata and his government ministers go to court under the cover of the Attorney General. The role of legal adviser is just that “adviser”. This does not mean that government cannot make decisions unless the AG endorses them. According to the impeccable reasoning of Justice Musonda in the Dora Siliya Tribunal case, while the AG is indeed a legal adviser to the government, a government minister is not under legal duty to accept the advise from the AG. Just like what happens in any solicitor to client relationship, a client can refuse to follow counsel. Having the AG as legal adviser to government does not mean that government should only function according to the advise of the Attorney General. The Supreme Court on appeal did not have problems with Musonda’s reasoning per se, they only took issues with his decision to delve into constitutional matters considering that the case at his bar was a judicial review application.

In our political government it is not laws that rule through people, but rather people that rule through laws. Laws are not the principal but people are. It is politicians we hold responsible for government and not laws. As such, Musonda was right. Government can be crippled if it has to wait for an AG to advise on each and every issue. In fact, Musonda went even further by suggesting that sometimes the duty of governance entails taking political decisions that are at variance with the current state of the law. Laws take a long time to change, and no government should be held to ransom due to the inflexibility of laws in so far as governance is concerned. Just as no courts of law can promulgate an injunction against the state, so can’t the advise of the AG bind the state. A politician who makes a decision, with or without advise from the AG is still personally and politically responsible for her decision. It is quite telling, that during the time of the Dora Siliya case, it was Mumba Malila who was AG. It does appear like he never learnt from this opinion. As adviser to government, Mumba Malila should not assume that he could block political accountability of government ministers.

Second, the AG is the general officer of the juristic public interest. This role goes beyond being a legal counsel to a sitting government. If the public interest were a person, the lawyer it would hire would be and should be the AG. In a general sense, the AG acts for this public interest. Public interest could include the AG intervening in certain criminal prosecutions due to the general nature of its impact on public interest. Public interest is widely interpreted. In fact, most courts would let the AG join in court proceedings quite liberally. The courts respect the role of the AG in this respect. I see that Malila could use this power to say that he is interfering in the Masebo case due to public interest matters. The problem in arguing this would betray the very nature of public interest which is on the side of personal accountability of ministers to the people of Zambia. If Malila cannot tell what is truly in public interest, then he should resign from this position and the taxpayers can be better served by a leader of the Zambian bar who understands what is truly at the heart of this public interest.

Third, the AG is the lawyer not only of the political government, but also of the administrative government. What this means is that the AG is legal counsel for the Zambian administrative state with all its tributaries. All state institutions covered under administrative law are within cover of the Attorney General. The administrative law includes statutory bodies, tribunals and commissions of the state. It is this limb that makes the Attorney General to be party to court cases involving the ECZ and bodies such as the Mutuna tribunal. Once an administrative act is done, it automatically assumes a legal defender: the Attorney General.

Specifically, the tribunal is funded directly by the taxpayer (s.15 of the Ministerial Code of Conduct). A taxpayer funded operation; the tribunal deserves legal representation from the foremost taxpayer legal counsel, the Attorney General.

Since a tribunal constituted by the administrative state should have the Attorney General as its lawyer, it becomes quite questionable that in the case of Sylvia Masebo tribunal, the Attorney General has decided to join proceedings against the tribunal. This is quite unusual. The major question to ask here is: who is the client of the AG between Masebo and the tribunal?

Munshya wa Munshya

Masebo cannot be client of the Attorney General because within the contemplation of the Ministerial Code of Conduct, a minister is personally responsible for his or her action. What Harrington is petitioning is that Masebo might have gotten pecuniary advantage from her position as minister. The Code is aimed at increasing personal accountability of government political leaders. If the Attorney General impedes this then personal accountability will be betrayed. Even if Masebo made decisions on advise of the AG in the first instance, once a tribunal has been instituted against her, the AG ceases to be her lawyer. She must find other lawyers to represent her. As it were, the tribunal is a government organ while Sylvia Masebo in so far as the tribunal is concerned does not function as a government organ. The tribunal is a political process of accountability of government ministers directly to the people. In fact, specifically the Code of Conduct brings a ministerial tribunal at par with Commission of Inquiry instituted under the Inquiries Act (Code of Conduct section 14 [10]). Therefore, there should no difference between a constitutional review commission and ministerial tribunal. They are both organs instituted by the State.

By insisting that he represent her or rather that he defends her, Malila has betrayed the Zambian people who are actually his clients. If Malila wants to be Masebo’s lawyer then the honourable thing he should do is to give up the taxpayers’ salary and go and become Masebo’s lawyer. The Zambian people have already hired Malila. He has a duty to defend both good and bad decisions made by the Zambian state. He has a duty to defend the tribunal even if it were irregularly constituted. In fact, he should be spending time trying to defend the tribunal rather than betraying it.

The principle here is not that Chibesakunda was right or wrong to constitute a tribunal. The issue is whose client will the tribunal be? And it is clear that the tribunal already has a lawyer: Mumba Malila. If Malila does not want that then he should resign. A new AG will meet him in court and defeat him viciously.

Note: This article is meant for academic and public interest comment. It is not intended to render specific legal advise. Those seeking legal advice should consult members of the Zambian Bar. (c)Munshya wa Munshya, 2013

Copy of the High Court Judgment of Austin Liato v The People (HCZ, 2013). Click on this link and let us know what you think about the reasoning employed by Judges Siavwapa, Mchenga and Sharpe-Phiri.

Austin Liato vs the people-2

The Austin Liato Case is an important decision with regard to what should constitute “reasonable suspicion”.

By E. Munshya, LLB (Hons), MA, MDiv.

The New Year is finally here. We should all be relieved that the year 2013 has come to an end. Each New Year brings to us a fresh perspective on life. And for Zambia, we all should expect a renewed look at what would make our nation better and greater. The shape of any nation is continually fashioned by people and events. In this New Year 2014 there are several events and people I see shaping the way the fabric of our nation shall unfold.

The Year of GBM 

Geoffrey Bwalya Mwamba (GBM) is likely to affect the political field more than any other person this year. GBM’s high profile end-of-year resignation from President Sata’s cabinet has created some perception that he is a courageous politician. In this fresh perception, it does not matter that GBM’s resignation might have been caused by his loss of influence within the PF (Team A v Team B). All that seem to matter to his supporters is that he has shown some courage by quitting and standing up to his former boss. GBM will do well to leverage this momentum. It therefore matters how he will handle himself especially in the coming few weeks.

GBM will shape Zambia’s political landscape in 2014

To benefit from this momentum, GBM could choose to launch a political party of his own. But that would be a serious mistake. Launching a new party would only go to crowd an already over-bloated opposition scene. What he needs to do is to be more calculating. The two choices that come to mind are either the MMD or the UPND. Going to MMD has some risk involved. The MMD is a compromised brand. Having another powerful Bemba in MMD, after Nevers Mumba, would prove problematic for GBM. The most formidable step GBM can take is to collaborate with the UPND. This choice would almost certainly be mutually beneficial for both GBM and Hakainde Hichilema. Such a move would make the UPND strong enough to be a serious contender to power in 2016. If GBM were to join the UPND, he could become its Vice-President. In this arrangement, the goal is not to get the Bemba vote to UPND, but to bring the urban vote gravitas to the UPND. As it stands now, GBM cannot dislodge the PF’s stronghold in Bemba-speaking areas in the Luapula-Muchinga corridor. But most certainly, GBM does have the aura in the urban areas to dissuade Lusaka and Copperbelt from continuing with the PF.

In 2014, the political front is not likely to bring any surprises. In the seats that have been nullified, we expect the PF to win in its traditional areas and the opposition to win in their respective areas. It is quite unlikely that the PF will perform well in these by-elections. The MMD is likely to lose some seats to the UPND especially in areas such as Northwestern Province and Barotseland. As far as the Eastern Province is concerned, Nevers Mumba’s MMD is likely to win all the by-elections held there.

The Year of Justice Chibesakunda & Chikopa

“2014 – Will be a significant year for Zambia” – Elias Munshya

The Supreme Court will be determining important cases this year. One case that is likely to return to the bench is the Mutuna case, which is being handled by Ndola High Court Judge Siavwapa. I have named this case Mutuna II to differentiate it from the first Mutuna case, which the Supreme Court has already dealt with. What is unusual with Mutuna II is that Judge Siavwapa has maintained that what Mutuna and others are looking for in Mutuna II is quite different from what they wanted in Mutuna I. By distinguishing issues, Siavwapa does seem to have rejected the idea that he is bound by the stare decisis in Mutuna I. We should all closely watch this court case. It will be one of the most significant cases of the year. The fact that this Mutuna II case has stayed the Chikopa Tribunal is also significant. It is quite interesting that 2 years after Chikopa, this tribunal is yet to begin sitting.

The Supreme Court is also likely to hear the case against Acting Chief Justice Lombe Chibesakunda. In this case, the Law Association of Zambia is challenging Chibesakunda’s occupation of office of Chief Justice. This case is likely to divide the court and in turn is likely to divide the members of the Zambian bar themselves. With about thirty lawyers involved in this court case, it will be one of the greatest cases in the nation’s history. In view of this, Justice Chibesakunda could decide to resign before the hearing. She could also decide to stay and fight it out. If she stays to fight it out, the fights might themselves create a perception among citizens that the judiciary is alienated. For an already mistrusted court, this is the last thing they would want associated with them.

Year of Nullifications

Nullifications of parliamentary seats are likely to continue this year. I do not think that the Supreme Court is nullifying these seats due to some ulterior motive. But I think there is fundamental misinterpretation of the law on the judges’ part. It seems like all the judges do seem to be following a clear pattern. They find an irregularity and this irregularity leads to automatic nullification. This has been the case in almost each of the cases heard by the Supreme Court.

The Supreme Court does seem to misunderstand the real purpose behind electoral laws. And this is a common misconception that any court can make. In my opinion, for a seat to be nullified at least three questions should be answered in the affirmative.

First, was there a malpractice or electoral irregularity? The second question should be; “was the malpractice or the irregularity so grave as to affect the electoral outcome”? The third question should be, taking into account public policy and interest should the election be nullified? Answering all these in the affirmative should lead to nullification.

It would be a serious mistake if any malpractice or irregularity will automatically lead to nullification, as is the case now. Again, I think the Supreme Court judges have done a great disservice to the nation in the way they continue to interpret and implement the Electoral Act. That being the case, I do not think that they are nullifying seats due to some hidden conspiracy.

The Year of More Kaloba

In terms of economics, things are not looking very bright. If the don’t kubeba government continues along this path, Zambia is likely to continue on its path of accumulating kaloba at unprecedented levels. This year is likely to be the year of more kaloba. Finance Minister Chikwanda’s last act of the last year was to sign a 20-year kaloba in millions of dollars with the Chinese. It is not good for our country to accumulate pre-HIPC debt loads. It is unacceptable. The thing is, Chikwanda’s coffers are dry and in order for him to deliver the so many extreme promises the PF have made he has to resort to borrowing.

50 Years Jubilee

Zambia will be 50 years old this year. This calls for celebration. However, the true celebration should be with the way President Sata decides to rule the nation. He must backtrack on debts. He must also improve his human rights record. At 50, the police should not be detaining people simply for possessing Vermox. Several journalists will be in court in a few days time. They are facing charges connected to their work. In this year, we should all apply the necessary pressure upon government to desist from abrogating press freedom.

Kenneth Kaunda Will be 90!

On a good note, this year Kenneth David Kaunda will be turning 90. And at this age, Kenneth Kaunda will be one of those that will shape Zambia in 2014. It will matter how Kaunda celebrates his 90 years. I just hope that he will not spend it as a partisan demagogue, but as a true compatriot of the people of Zambia. Kaunda belongs to all Zambians. He does not belong to the PF alone and the sooner he realizes that, the better.

Happy New Year Zambia.

Please find attached Zambia’s new draft constitution. This is the Silungwe constitution draft.

CONSTITUTION-OF-ZAMBIA-TECHNICAL-COMMITTEE-AUGUST-2013-3

DISCLAIMER: This website makes no representation whatsoever as to the accuracy of this document.

By E. Munshya, LLB (Hons), M.Div.

Zambia should change laws that unfairly disadvantage women – Munshya

The facts of the 2012 case of one Ms. Kay Figo and her lover Mr. Van are very well defined. Around 2007 a 55 year-old Mr. Van  met a 21-year Ms. Kay Figo at a Kabwata nightclub. Due to love at first sight, Mr. Van that night invited Ms Kay to his Makeni home.  They  lived together for a period of 5 years. The relationship had broken down for at least two years of those five years. Noting that the relationship had broken down, Ms. Kay sued Mr. Van before the Lusaka Local Court. Ms. Kay’s argument was that she deserved compensation from Mr. Van for lost time while “dating” him. She wanted the court to recognise her time with Mr. Van as deserving some level of legal or equitable recognition. Some reports suggest that Ms. Figo had actually wanted this 5-year cohabitation to be recognized as a common law or some form of customary marriage. Mr. Van argued that, to the contrary, he did not need to compensate her because as far as he was concerned he was not married to her. It was also Mr. Van’s argument that during the 5 years he had lived with Ms. Kay he had tried repeatedly to reach her family so that he could get her to marry him. Reaching family suggest that Mr. Van might have wanted to marry her through customary law and practice. He argues further that she was not willing to introduce him to her family. As such she refused his proposal for marriage. That having been the case, he argued that she was un-deserving of any compensation.

This matter has received lots of media attention. Some in the media have characterized Kay as an “untaught” girl and as a gold digger just out to get Mr. Van for his money. Indeed that Kay was quite specific about the amount of compensation she wanted from her former lover, only went to stoke the suspicions in many that she was an opportunist going for a “house, money and car”.

The Lusaka Local Court reached its decision in October 2012. The local court justices dismissed Ms. Kay’s action declaring that since she had not been married to Mr. Van, she had no recourse to any compensation. The courts declared that there was no valid marriage contract upon which compensation can be ordered. As such, Ms. Kay was unsuccessful in this claim.

I find the decision of the court to be unfair. I wish to paint this decision within a wider framework of both law and tradition to argue that there is need for Zambia to change its legal framework as to recognise compensation in cases such as the one under consideration.

Ms. Kay Figo

In Zambia today, there are principally two ways by which marriage can be contracted. The first is marriage under the Act and the second one is the marriage under Zambian traditions and customs. Marriage under the Act is primarily modelled after European system (sometimes misusing the Bible as justification). In this marriage, two people can contract a marriage and have it solemnized by the registrar of marriage or a gazetted minister of religion. The marriages contracted under Zambian laws and tradition is valid only after definite steps are taken. Legal jurisprudence right now as it stands in the Supreme Court precedence is that a marriage under customary law can only be valid if the man has paid some form of dowry or “lobola” to the family of the woman.

The consequence of the law as it stands right now is that regardless of how long a man has lived with a woman, that union cannot be recognized as a marriage unless he has “reached” the woman’s family and some form of dowry has been paid to the woman’s family. It is not my intention to change the way our traditions or the law defines what a marriage is. I would leave that up to the traditionalists and to the Zambian parliament.

My argument is that there has to be some form of legal or customary recognition of some unions contracted in the manner similar to Ms. Kay and Mr. Van’s. My argument is that leaving the law as it is would disadvantage women who are at the receiving end of unbalanced power within society. Indeed, in much of the English Common law jurisdictions, the law has moved on to where it imposes a “marriage” upon any couple that has cohabited for a specific period of time. In Canada for example, the “marriage under common law” is imposed upon any couple that has lived together for at least 12 continuous months. Privileges for such recognition vary from one Canadian jurisdiction to another.

In the case of Zambia, a couple should either be married or if not then it is cohabiting with the later receiving no legal or equitable protection at all. There is no middle ground. Marriage receives both legal and equitable protection while cohabitation does not. I do not wish to encourage cohabitation. Indeed, a marriage is far much better than two people just cohabiting. But there comes a time where women are disadvantaged due to the unfair balances of power after the cohabitation is over. Indeed, in the case of Ms. Kay and Mr. Van, the man took this young girl from a bar and lived with her for 5 years. That they were cohabiting without being married is clear for all to see. But in the event that the relationship comes to an end it would be unconscionable for the woman to walk out of that relationship without some amount of consideration.

She was a de-facto spouse to Mr. Van while she lived with him. She cleaned his house and took out his garbage every night or probably once a week. She worked hard for him. She provided him with the love and affection he needed. This love and affection made him work well and work hard in his businesses. For at least a majority of those five years, she was there for him. Honestly, that after these years she deserved some form of a “house, money or car” from him. He must not be allowed to dismiss her that easily.

Many commentators have discussed how a “gold-digger” Ms. Kay is. In fact, many have questioned her moral values as “ a girl picked from a bar.” Indeed, I find such criticisms very unfair. Why aren’t the same people condemning the 55-year-old Mr. Van who pounced on this innocent girl? Why is it that when it comes to such matters, the woman gets the most condemnation while the man goes scot-free? In fact, Mr. Van has been left off the hook such that there are reports that he has now started another “cohabitation” with another young woman.

If indeed, Ms. Kay is a bar girl, that criticism should also be leveled against Mr. Van who took her from the bar and within the same night took her to his house in Makeni. He loved her and lived with her for five solid years. Honestly, after having enjoyed her youth and her innocence, Mr. Van cannot and should not get away so easily. He must at least offer reasonable compensation to her. It is just the right thing to do.

She has lost the case. Probably, as a controversial musician, she will even sell more records after this episode. However, she will bear the brunt of this saga while Mr. Van goes scot free to begin pouncing on another girl at a shabeen in Shang’ombo.

Only that next time, we must make Mr. Van realize that once he picks another girl, he would not discard her so easily. The “not married to you” nonsense should not be tolerated. If you cannot marry the girl then do not cohabit with her. But if you so wish to cohabit with her then you should be able to offer any compensation that would normally fall on a marriage of similar length. Here is a number from Ms. Figo.

(c) E. Munshya, LLB, M.Div. (2012). This article was originally published on this website on 5 October 2012. It is republished here in 2014. All rights reserved.

 E. Munshya, LLB (Hons), M.Div.

Many have undertaken to write on the appropriateness and inappropriateness of Hon Harry Kalaba’s decision to overrule Zambia’s environmental body. Kalaba has permitted a foreign company strangely known as “Zambezi Resources Limited” to develop an open pit mine in the middle of the Lower Zambezi National Park. Ignoring advice from environmental experts from the Zambia Environmental Management Agency (ZEMA), Hon Kalaba has used his statutory powers and invoked public policy objects in granting this license. I understand that this matter is now in court. There are reports that the aliens in charge of Zambezi Resources have refuted the reality of any injunction against them. As far as they are concerned they are ready to begin the plunder of the Zambezi River Basin. I will leave the legal arguments to the competent lawyers and the High Court. In this article, however, I will dwell only on the other arguments advanced by Kalaba and his government peers in justifying this environmental sacrilege.

Pollution in Mufulira, Zambia

Harry Kalaba is in many senses a very reasonable gentleman. He is a rising star in the PF government. As a native of Luapula, I have no doubt that Kalaba brings to public office the grace, gallantry and great wisdom domiciled in our people. It is young Luapulans like Kalaba who daily keep alive the hopes and dreams of our republic. Zambia will be better and greater with ministers like Kalaba. In humble patriotism, however, we must call upon even gifted people like Kalaba to reevaluate the way they are governing the country. We must put aside personal familiarities and common kinship in pursuit of higher ideals for our national healing. And for the stance he has taken on the issue of mining in the Lower Zambezi National Park, I must differ with him and the policies of his colleagues in the Don’t Kubeba government.

Lower Zambezi National Park

The Don’t Kubeba government is arguing that this foreign firm, “Zambezi Resources” does have the technology necessary to keep the game park in pristine condition while excavating an open pit mine. This is nonsense. Kalaba and his colleagues have failed to put in place any measures to protect the people of Mufulira who are currently being slaughtered daily by sulphur gases discharging from Butondo. How then will they have the technology to do better in Zambezi? Why can’t they start to show us their “modern technology” by cleaning up Mufulira and Chingola before these companies go on to turn the whole country into a huge pile of torrential chemicals? Indeed, it is simple logic. That which has failed to work for Chingola and Mufulira will most certainly fail to work for the Lower Zambezi. Zambezi Resources does not have the technology to mine in the Zambezi any safer than other mining companies are currently doing on the Copperbelt. And as the people of Nchanga know, a mine is a mine. An open pit mine is an open pit mine. There is no technology that can ever replace soils dug out of the ground to make room for this open pit mine. Digging in the Lower Zambezi does have consequences on the land, the animals and the people of the Lower Zambezi.

The Don’t Kubeba government is also arguing that they have permitted mining in the Lower Zambezi so as to create jobs for Zambians. Sometimes President Sata’s ministers speak in a way that defies modest sense. When they talk about jobs, they speak as if they do have job creation as an important element in their government. One cannot avoid but notice that this government’s policies have killed more jobs than any other government in the Third Republic. It is, therefore, strange that they would use job creation as the excuse for desecrating the Lower Zambezi National Park. Indeed, there are better ways to create jobs. The first way to create jobs in an economy like Zambia is to first protect the jobs that already exist in the economy. It is rather absurd that Sata’s government has fired close to 500 nurses countrywide and yet turns back and claims to be creating jobs in the Lower Zambezi. This government is not serious about job creation for Zambians. It is only serious about job creation for the party and its family. If they really want to provide jobs to Zambians they should immediately reinstate the nurses and not just smear us with more “bufi” about Zambezi.

The PF government moved with a lot of zeal to impose taxes and duty on vehicles used by churches and NGOs in their poverty alleviation programs. The imposition of this duty and tax means that NGOs will hire fewer workers. Fewer workers will further complicate Zambia’s job creation outlook. It is the poor that will suffer further because churches and NGOs will not be able to drive into the interior without suitable equipment. It is, therefore, surprising that the same government that acted at impulse to punish NGOs would today claim to sell the Zambezi on the pretext that it wants to create jobs. We can know the direction of a government by the way it treats small men and women. It has failed to collect enough tax from mines and yet it wants to kill the NGO sector, which is one of the biggest employment sectors in the country. The 3 years of PF rule is awash with examples of how it has failed to adequately tax mining companies. And yet it finds it easy to terrorize powerless NGOs. Approving more mines in the national park will not solve the tax problem created by the PF’s lack of economic competency. To mine tax, I must now turn.

Harry Kalaba’s government specializes in guesswork – Munshya wa Munshya

PF ministers are arguing that Zambezi Resources will bring in lots of revenue into government coffers. This is not only laughable but also pitiful. We must pity the don’t kubeba government. Inspite of having a seat on the boards of copper mines pillaging our copper, the PF government has no idea of how much these copper mines are actually generating. It is all guess work. That being the case, it makes no sense that they now want to add more companies to this list of their ineptitude. In any case, the winners in the Lower Zambezi will not be the Zambians; it will be the same foreign companies and their investors in Berlin, New York, Toronto and Brisbane. Moreover, the PF government will not collect a ngwee from this company because it has neither the capacity nor the backbone to collect tax from companies.  As mentioned above, the only tax it knows to collect is that taken from the churches and NGOs. A few years from now, the Lower Zambezi, will become just another town ravaged by foreign multinational companies leaving sulphur dioxide in their wake. This company will bring more misery to the country’s mining sector.

We appeal to the Hon Kalaba to reverse his decision. We appeal to the PF government to clean up the mess in Mufulira first and foremost. We also appeal to the government to leave the Lower Zambezi National Park free from further exploitation by foreign miners. The returns are not just worth losing our pristine land. It would be terrible to have another Mufulira pollution disaster happen among the Goba of the Lower Zambezi river basin.

(c) 2014, E. Munshya. This article appeared in Zambia’s leading independent newspaper the Daily Nation on Friday 6 February 2014. Munshya wa Munshya Column appears  every Friday.

 By E. Munshya, LLB (Hons), M.Div.

Instead of being a father to the fatherless, President Sata has become a scoffer of the fatherless. Instead of being a father of the nation, President Sata has chosen to ridicule those among citizens who have lived without knowing their fathers. Quite extraordinarily, it takes a lot of steel for a man to condemn others for the same thing he does. Pointing a finger at others, when four are pointing back at you should be enough to warn you of your own decadence. It is bizarre to disparage Hakainde Hichilema as a child “born out of fornication” when you yourself have a chain of children born out wedlock. When President Sata first chanted the famous bana ba mufigololo stanza, in July 2013, to refer to both Father Frank Bwalya and Hakainde Hichilema, I gave him a benefit of doubt. He is only human and may be he just had a slip of a tongue. I rationalized that may be he had such an intense campaign for Lameck Mangani that he, in the heat of the moment, thoughtlessly brought in the cigololo analogy. In English, it does sound lighter. But used in CiNyanja these words are graver and even more uncouth.

Fatherhood is a privilege, but President Sata should not be slurring fatherless children. (Munshya with son Mwitumwa)

As if it was not enough that he had used these uncouth words in Chipata last year. President Sata has repeated the same slur. Campaigning in Katuba Constituency, last week (in February 2014) he used the same disparaging remarks referring to HH as a man “who cannot name his father.” President Sata, who is 76, went on to name his own father and challenged HH to do the same. By implication, President Sata does seem to be suggesting that HH is unworthy of the presidency because he was allegedly born out of wedlock. It is clear that President Sata does seem to have some issues he needs to settle in his own mind concerning “abana ba mufigololo”.

President Sata’s “cigololo” insults are unacceptable – Munshya wa Munshya

Our constitution does attribute a lot of dignity to the person occupying the office of president. This is the reason why such an individual gets immunity from both civil and criminal suits while they serve. In fact, the Supreme Court has made it clear, that the Presidency is a high office that must be “honoured and respected”. According to Chief Justice Matthew Ngulube, in the case of Mmembe and others v. the People (1996), the presidency, as an institution, does deserve protection from, among other things, libel and defamation. For Ngulube the constitution makes the president to be “not equal” to everyone else. In reprimanding Spectator Kalaki’s Mfuwe article, the Supreme Court in Roy Clarke v. Attorney General, held that characterizing Mwanawasa and his cabinet as animals was in bad taste and was inconsistent with Zambian values. According to Chief Justice Ernest Sakala, “a Zambian President deserves respect”. Most recently, in the case of Mutuna & Others v. Attorney General (2013), Acting Chief Justice Lombe Chibesakunda’s majority opinion did seem to have evoked both Justice Ngulube and Justice Sakala by claiming that the presidency is such a high office that is “authority on everything.” Indeed, our laws do seem to impute a lot of dignity, decorum and deference to the president. But the law has not quite addressed the question of how we citizens should handle a president who uses immunity as a cover to insult and disparage others.

Supreme Court precedence does seem to have worked presidential dignity backwards. It imputes respect and reasonableness on a president and then from there assumes that the president will act in fairness, reverence and dignity towards others (See Mutuna & Others). But what are we to do when citizens get the brunt of insults from a sitting Head of State? This is the question and the dilemma we face as a people today.

President Sata’s words should be taken for what they are: plain insults. It is not respectful for a person in authority to characterize some citizens as “abana ba mufigololo.” We might at this moment borrow some wisdom from President Frederick Chiluba who famously declared: imfumu taituka bantu, abantu ebatuka imfumu. Loosely translated, a good leader does not use his or her position of authority as a cover to slur subordinates. However, ever since the don’t kubeba government took office the reverse has happened: imfumu iletuka abantu! The PF government is a specialist in reverse gears. The latest casualty of their reverse gear is the falling Kwacha. But I will leave that for another day.

Presidential immunity should not be used as a way to insult, but rather as a way for a president to have the leverage and freedom to consult with others in national development. President Sata should look at others that went before him. Kenneth Kaunda was a “wamuyaya”, but where is he today? It was a custom of his to refer to citizens and some opponents as “stupid idiots”. But when the time came, he was kicked out of office. Then came Frederick Chiluba. Even if he never insulted his opponents, after leaving power in 2002, the Zambian parliament stripped him of his immunity. Mere suspicions of theft were enough to strip Chiluba of his bombasa. Rupiah Banda also has had his bombasa stripped. This should serve as a lesson to President Sata also. He should use the privilege of immunity to serve and not to abuse others. Immunity is quite an unreliable shield.

President Sata as Head of State is supposed to be inspiring confidence in a number of children born out of wedlock every day. It is not his job to disparage mothers giving birth to fatherless children. Indeed, this president is supposed to be president for all Zambians including those born out of wedlock. His continued ridiculing of HH only goes to perpetuate stigma against children in Zambia who have lived without knowing their father. In fact, daily in our primary schools, children without fathers are being subjected to bullying. They are being mocked for something that is not their fault. And yet, instead of receiving support from the leadership of our country, they receive innuendo that casts doubt on their personal value. What are these children supposed to do?

Hakainde Hichilema may have survived a fatherless childhood. He has made good out of himself. He is one of the richest guys in the whole country. He has been to school and his degrees are an envy of many. He is leader of one of the biggest political parties. He is a father himself, or perhaps, a grandfather. It is all these reasons that make President Sata’s remarks even more absurd.

As Zambians, we all know that many times, it is not biological parents who raise children. It takes a village to raise a child. For a man like HH to be where he is today, he received lots of support and nurture from many people in his community. It is these people – men and women – who were HH’s fathers and mothers. And just look at the finesse of a gentleman that he is. There is absolutely no reason why HH should be at the receiving brunt of these insults. If the constitution will not protect the fatherless innocents from a hasty president, we might as well rely on customary wisdom: Ubufumu bucindika umwine.

By E. Munshya, LLB (Hons), M.Div.

Agony is having someone serve as your vice-president and yet never give him the opportunity to act as president when you are not around. It is quite absurd that President Sata would have a vice-president distrusted to serve. When the PF government came into power in 2011, we welcomed the idea of an African country with a Whiteman as its vice-president. Indeed, President Sata has himself bragged to foreign dignitaries that only two countries in the world have a Blackman for president and Whiteman for vice-president: USA and Zambia. But what lies beneath all this chatter, is a glaring reality: President Sata has never left this Whiteman to act as president of Zambia. This oversight on the president’s part, in my opinion, is an anomaly that could trigger a grave but avoidable crisis.

Guy Lindsay Scott – Vice-President of the Republic of Zambia (2011 – )

President Sata does seem to be operating under the assumption that he could do anything he wants with the office of the vice-president. This is a serious misapplication of the law and the constitution. Unlike positions of cabinet minister, the office of vice-president is a constitutionally provided and protected office. It is the constitution that both limits and delimits the powers and structure of a vice-president (Article 45). Whereas the president does have a lot of discretion with how he configures the offices falling in Cabinet and their functions, the Zambian constitution does not give the president the sole discretion to configure the office of vice-president. Very little is left to presidential wishes. If a president selects a person to serve as vice-president then that appointment should confer upon such person all constitutional duties and privileges.

Article 45 (4) acknowledges that the primary functions of the vice-president are those imposed upon her or him, first and foremost, by the constitution itself and then secondarily by the president’s delegation. This is how Art 45 (4) is phrased:

In addition to the powers and functions of the Vice-President specified in this Constitution or under any other law, the Vice-President shall perform such functions as shall be assigned to him by the President.

So from this article, the president may assign the vice-president some functions, but these functions are “in addition” to the powers specified for the vice-president from the constitution. That being the case, the president cannot use Article 45 (4) to vary constitutional powers conferred upon a vice-president. It does not matter that the vice-president is just an appointee of a president.

The most significant function of a republican vice-president is to be a “transitory” executive office. According to Article 38 the vice-president runs the affairs of the state in an acting capacity when there is a vacancy in the presidency. This involves arranging for fresh elections and presiding over the affairs of the state. This transitory period is up to 90 days and could subsist until the next president takes the oath of office. It is only when the vice-president is “absent” or “sick” or “incapacitated” that cabinet is then authorized to appoint someone else.

Is President Sata discriminating against a white vice-president?

In addition to being a transitory office, the vice-president also becomes a repository of executive power when parliament is dissolved. The Zambian courts have held very consistently that the vice-president and the president are the only members of the executive who remain in office after the dissolution of parliament. This is what Justice Wood stated in the case of Wynter Kabimba v. Attorney General and George Kunda (2011). It is the intent of our constitution that while the vice-president is indeed a member of parliament, he or she does not lose the office when parliament gets dissolved. Here is how this interpretation would apply to the Guy Scott issue. When President Sata dissolves parliament sometime in 2016 for elections, Hon Chikwanda and his cabinet colleagues will cease to be MPs. They will also cease to be cabinet members. Under those circumstances Chikwanda will not and cannot act as president. Vice-President Guy Scott, however, would continue to occupy the office of vice-president until a new president is sworn in. If President Sata continues with the current practice of leaving power only to Chikwanda, he could potentially create a crisis prior to 2016 elections when there will be no Chikwanda and no parliament. President Sata should begin giving the constitutional reins that Guy Scott already possesses by virtue of his office as vice-president. Levers of power should begin getting used to saluting legitimate office bearers regardless of their creed or colour. By stating this, I am not in any way insinuating that Guy Scott is a great political leader. Far from it. I am merely asking that Scott be treated equally like any other citizen of our republic.

Does the constitution preclude Scott from acting as president due to his skin? Arguing that the constitution has precluded a Whiteman from Zambian presidency is plain racism. In fact, it is nonsense. And if that is what is going on in the don’t kubeba government, then we should pity both the Head of State and the cadre of his legal advisors. Isn’t it absurd that the president would go ahead to appoint a vice-president who does not meet presidential eligibility? If a Veep can’t act as president, why then does he even occupy that office? However, I find no legal or constitutional basis why a Whiteman such as Guy Scott should be precluded from acting as president of Zambia. Article 34 as interpreted by the Supreme Court in Lewanika & Others v. Chiluba does suggest that any Zambian fitting Guy Scott’s situation could in fact satisfy the eligibility requirements, including the “parentage clause”. Interestingly, the “parentage clause” was passed when Mr. Sata was the country’s third most powerful politician. I wonder whether the contextual discrimination of 1996 is having an impact on the way President Sata is treating Scott today. In Chiluba, The Supreme Court went on to state that the 1996 constitution in Article 34 created problems for the future. Nevertheless, constitutionally absurd rules should be interpreted liberally. You cannot use kangaroo rules to deny a birthright to Zambians simply because they are of the wrong skin!

It is nonsense to claim that the Zambian constitution discriminates against Guy Scott – Munshya

Some have stated that there is precedence that presidents have left power in the hands of their preferred cabinet members. Some point to Chiluba occasionally leaving power to his close ministers and not his Veep. In fact, there is speculation that President Mwanawasa left symbols of power with Defense Minister Mpombo and not Vice-President Rupiah Banda in 2008. For administrative convenience, a president could leave his preferred chaps to act in his absence. But this should be for governmental expediency and should happen once in a while. Administrative convenience does not mean, racial convenience. Scott is not “absent” or “sick” or “incapacitated” for President Sata to continually sideline him for a presidential salute. Or may be he is indeed “incapacitated”. But I am left to wonder whether it is the colour of his skin that makes him incapacitated. It certainly appears so. Only the president can correct this anomaly and do right.

Scott has received some very demeaning remarks from some opposition leaders. That should not be the case. However, President Sata can help prevent these slurs by giving to Scott the privilege of nationality constitutionally accorded to vice-presidents, white or black. Then only will it make sense that Zambia indeed has a black president and a white vice-president. Our Zambia belongs equally to all: Bembas, Tongas, and, of course, bazungus like Guy Lindsay Scott.

Note: This article deals with general matters of the law from a public interest perspective. Those needing specific legal counsel on some of these questions should consult members of the Zambian bar.

 E. Munshya, LLB (Hons), Mdiv.

 We make no error by stating, unequivocally, that Hakainde Hichilema was the big winner from the by-elections held in February. Things are looking pretty good for HH. The United Party for National Development (UPND) did exceptionally well. It is becoming eloquently clear that the winds of political fortune are gusting their way. For how long, though, will the UPND hold on to this political swelling? Additionally, what challenges or opportunities do the victories in Chililabombwe and in Katuba present to Zambia’s political landscape? We try to provide an analysis here.

There are many challenges that UPND will face after Katuba. However, in facing these challenges, they should never underestimate the political skills of Michael Chilufya Sata. With things as bad as they are for the Patriotic Front, President Sata still remains reasonably popular within his traditionally strong areas. These areas include urban areas and Luapula-Northern corridor. The UPND should not leave any stone unturned or become complacent. If they want to provide a real alternative to Sata they should be willing to confront him and his political abilities. They should take the fight right to Sata’s doorsteps. Last week, the PF won overwhelmingly in a Kitwe ward. This is further testimony to the fact that in spite of urban discontent with the PF, defeating it will not come on a silver platter in 2016.

The UPND’s other challenge concerns its bad performance in the Bemba-speaking areas. We have talked about this several times. In spite of having been on the political scene for such a long time – for almost two-decades – it is desolate that the UPND has not made any real progress with the Bemba-speaking vote in Northern or Luapula Provinces. This is a serious issue that the UPND should resolve. For once, HH should come up with a strategy that would resonate with the people of this Bemba-speaking world. We are satisfied that HH recognizes this and he has promised to travel to these places in the near future to hold meetings there. Doing so will be a step in the right direction. We do not believe that the UPND is anymore tribal than the PF. But they should come up with a more workable strategy to show that they are serious about issues affecting all Zambians regardless of tribe or class.

As such, more than just holding meetings in the Bemba-speaking areas, HH should begin attracting real opinion formers and political noisemakers that are well known in the Luapula-Northern corridor. It is quite concerning that to-date, HH and his UPND still do not have a politically influential Bemba within their ranks. If HH is to be a serious contender in 2016 he must deal with this anomaly. He could also learn something from Michael Sata. What made Sata president are not only the Bemba vote or the urban vote, but also the Lozi vote. Sata would not have won the 2011 elections had it not been for the Lozi vote. It was very significant. Sata crafted a message for Mongu. And the people of Mongu bought into it. HH should do better for the people of Mansa and Kasama.

Aleisa, Aleisa

For one thing, the issue of Chitimukulu is not a politically potent issue for HH to use in winning the Bemba vote. In fact, Sata continues to mess with the Chitimukulu issue because he knows that it is of no political consequence to him.  Those who think that the Chitimukulu saga would sink Sata among Bemba-proper peoples either do not know history or having known history, they have chosen to ignore it completely. HH should be careful in the way he jumps on the Sosala saga. It is not big enough an issue to help him address the Northern-Luapula deficit. The Chitimukulu story should be situated within a particular context. It is a chieftaincy dispute that has to do with complicated family and royal quarrels that are confusing to everyone. Such disputes would not provide good-enough political ammunition for HH. Umuto wa lupwa tawitika. After Sata has quarreled with the Bemba royalists they will, in no time, make up and it will be business as usual. With that in mind, HH should be one step ahead and deal with issues that are truly concerning to the rural people of Luapula and Northern provinces: issues such as farming inputs and infrastructure development.

Opportunities abound for HH. With the win in a Chililabombwe ward, the people of the Copperbelt might have started to have another good look at him. It would be better for HH and his UPND to begin sending a popular message to the people of the Copperbelt and Lusaka. Urban voters will prove significant. Considering that much of Southern, Western, Northwestern and rural Copperbelt is warming up well to HH, he would need just a little more votes in the urban areas to win in 2016. But he must have a message for the urban areas. He should make his message simple. He should deal with bread and butter issues that are the most pressing in Lusaka and the Copperbelt. With a slight uptick along the line of rail, HH would be the candidate to watch in 2016.

HH also now has the opportunity to set the agenda for the opposition parties. He is in a position to negotiate for a prominent place within the opposition gala. He has the break to shape how the opposition will take on the don’t kubeba machinery come 2016. For sure, HH should not be afraid to try and foster an alliance with either Nevers Mumba or even Geoffrey Bwalya Mwamba (GBM). If he continues on the same path of popularity, we see no reason why either of these gentlemen would be reluctant to align with him. Regardless of how one looks at it, an opposition alliance led by Hakainde Hichilema and deputised by Nevers Mumba or GBM will beat the Patriotic “Kaloba” Front very easily. But the question remains: is HH ready to use the newly found political capital to foster this alliance?

MMD is dead – Munshya

Nevers Mumba’s Movement for Multiparty Democracy is dead. In fact, it died before Nevers took over. It died a long time ago. It was only perpetuated by the little power in had as a ruling party during Mwanawasa’s tenure. Bo Mumba inherited a damaged brand and there is very little he can do to resuscitate it. The MMD as it stands now, will not win any seat in the 2016 elections. And this is not due to Mumba’s fault or any of the current leaders’. The demise of the MMD was consummated in 2001 by the very people who were influential in its founding in 1991. By their political engineering, both MMD long-time Secretary Michael Sata and his boss president Chiluba sowed the seeds of the demise of the MMD long before Mumba took over. While there is still some time left, it would be wise for Mumba to face reality and ask his colleagues to have the MMD form an alliance with the UPND with Nevers as the secondary partner of that alliance.

If there is anything we can learn from Katuba as we sprint towards 2016, it is the fact the UPND is on the rise, the MMD is dying and President Sata remains somewhat well-liked in his traditional areas. Will Hakainde Hichilema use this newly founded political capital to his advantage in the coming months? We will all watch and see.

For now, aleisa aleisa.

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 E. Munshya, LLB (Hons), M.Div.

Munshya wa Munshya

We are a nation of “tamanga.” We are the generation epitomising the notion of “ifintu ni bwangu”. In everything we do, “musanga musanga” has come to define who we are and where we stand. “Tamanga” can mean many things. On the street, it has come to mean a people who have to hustle for survival. It could also mean a busy people. And this is one of the problems we face as a nation. Ever on the move but getting nowhere. Ever talking and yet no one is listening. We are busy with lots of stuff and yet development lags behind. This has been the case since independence. We are quick at talking. Actually, we are fast talkers. We are “punkas” as they call it at Katondo Street. Our actions show a lot of activity without real progress. It is time our nation came to a stop. And reflect. We need to relook at this culture that has spiraled out of control: the culture of tamanga.

The 90-day promise from politicians was born from this tamanga pretext. Even if there was no way that anyone could deliver development in 90 days, our people nevertheless believed it. In “tamanga” we trusted. While in opposition, and in fact even after winning the elections, President Sata held on to a discreditable promise of delivering a “people driven constitution within 90 days”. In the spirit of tamanga, some Zambians believed him. That faith is itself problematic. After tamanga has failed, President Sata’s police are now threatening to arrest hurriedly anyone who dare question the tamanga promises over the constitution. On Youth Day, the police arrested children demanding for a new constitution. Indeed, as President Sata’s actions are proving, tamanga does not work in the long run.

Plastered everywhere in the corners of our cities are invitations to the tamanga gospel. Preachers are the new witchdoctors. They are advertising along the same lines as the Ng’anga Association of Zambia. “Come to our meetings”, they are proclaiming, “for instant elevation”. Ifintu ni bwangu is the new good news and all it requires is a little water drawn from the River Jordan and all the problems will be over. Musanga musanga, the gospel has now become. And there are so many of our people buying into this tamanga theology. This is a sad state of affairs.

A nation on tamanga

The MMD government worked hard for the development we now see. Wheels of commerce have been spinning very fast since 1991. Chiluba, Mwanawasa and Rupiah Banda led Zambia to unprecedented economic prosperity. Only Michael Sata’s don’t kubeba government is threatening this economic growth. However, in spite of the growth, infrastructure has not kept pace with this economic prosperity. We have more vehicles on the road than the roads could possible carry. In spite of this, we are driving faster than ever. Our passion for tamanga is now murdering our people along the Great North Road and along the Ndola-Kitwe-Chingola road. Tamanga has become a curse. We need to slow down on those roads. We can do with a missed appointment, but we can’t do with people dying due to over-speeding. The Zambian driver should slow down on the road. The Zambian driver should arrive alive. What good is it to drive so fast and never arrive? Our roads do not need more prayers, than they need a little less speed.

With the growth of the Zambian middle class has brought newly found prosperity among a huge section of Zambians. This means that there is more money circulating among journalists, engineers, accountants, teachers, lawyers and other professionals. This increased prosperity has brought a problem of its own – busyness. It has brought the spirit of tamanga. This Zambian generation is the busiest it has been since independence. We are always on the move. For these newly prospering individuals, the spirit of tamanga is not leading them to more balanced lives, but to more restlessness and inner chaos. Tamanga leads to imbalanced and unfocussed lives. We must do something to redeem our nation from this.

In a nation of tamanga, the Kwacha has now developed swifter feet. On tamanga, it is now K6, 000 against the dollar. In this culture, life comes easy to those who are constantly connected with the “apa mwambas”. Shortcuts become the order of the day. You know you are in trouble as a nation, when a bank branch manager within a day gets to become a Deputy Governor of the Bank of Zambia. How on earth could we ever expect the Kwacha to perform well when its primary managers have never written a single paper in economics? We need redemption as a nation from the spirit of ifintu ni bwangu.

In marriage and family, tamanga claims to resolve problems without the patience of endurance and the sacrifice of perseverance. Who needs foreplay and emotional connection if concoctions on the roadside are promising hard rock erections within seconds? And that is a problem. Families are getting wrecked because when spouses are busy, they will not invest the needed sacrifice and emotions in family improvement. They will replace selfless relational connection with the saga of tainted Viagra, now selling more than Panado across Lusaka. That would bring a spiral of problems of its own. Zambia needs redemption from tamanga.

We can condemn Christopher Katongo for what he said about young players. And many soccer fans have a reason to be suspicious of the captain. May be Katongo is right. We should not sacrifice experience at the altar of tamanga. Why is it that other national teams in Africa have more experienced players than the Zambian team? Is it that we rush for tamanga more than experience? I will leave that up to your judgment and consideration.

In order for us to resolve this problem of tamanga, each one of us should make a conscious decision to slow down. Next time you are driving to Ndola, please take your time. Start early for the journey and leave a lot of time and space, it could save your life and that of others. There is no need to speed a Marcopolo Bus only to die at Chibombo. Praying we must do, but after that prayer is done, God expects and demands from us to drive with utmost care once we are behind the wheel. We could also decide to reject the tamanga idea out-rightly. The rising workers in the middleclass should be able to say no over time hours only to appease their bosses while leaving their spouses in tears.

To defeat the spirit of tamanga, we could all just begin to pay attention to those and the things around us. Life becomes more fulfilling when we begin to live and to pay attention. Next time, you are rushed; look at ways you can take it a little slowly. Listen more to others. Look at creation. Look at the grass and the trees. Enjoy the beauty of nature. If it rains, watch the drops of the rains. Smell the morning dew. Refuse to be rushed and enjoy the beauty that is in an unhurried life. Let us for once and for all undermine and maim the tamanga culture. We must refuse the temptation to steal from government. Some are poor in 2011 but by 2014, they have built mansions in Chalala. Without the sacrifice of patience, they have become rich through ill-gotten gains. Politics has become a way to steal and this tamanga is leading to unbridled corruption and theft of public resources.

In tamanga we all should not trust.

 E. Munshya, LLB (Hons), M.Div.

Munshya wa Munshya

In our democracy, there should be no reason why the police command should be wasting taxpayers’ bullets and teargas to chase Hakainde Hichilema (HH) out of the Eastern Province. Bullets and teargas should be for criminals and not ordinary citizens. Reports that Inspector-General (IG) Stella Libongani had sent a battalion of police and soldiers to hound HH out of Chipata are very disturbing. What is even more worrying is the fact that the honorable Inspector General issued a statement in which she proudly detailed this fact. This is regrettable. However, we must not be tired to remind each other frequently, of the sacrosanct liberties we have decided to enjoy as a people. Power corrupts. And I see the reason why Bo Stella could be using her position and her power to persecute citizens of our country. It is certainly tempting to be in Lusaka and with the click of a finger be able to mobilize paramilitaries to frighten villagers in Mungwi or Malambo. We must be clear from the outset that eroding our constitutional liberties as citizens of our beloved country is a serious issue that we as a people should condemn with the contempt it deserves.

This nation was formed with a clear goal in mind: to be a free people united under the banner of One Zambia One Nation. The slogan of “amayendele muno Zambia” was the battle cry at independence. What this means is that any citizen of our country does have the liberty to travel anywhere across the length and breadth of our homeland. Amayendele means HH can go where he wishes to go. He cannot get lost. It is his country. Amayendele means Chipata is Hakainde’s Zambia just like Mazabuka is his. Amayendele means a native of Milenge can freely roam in Mwinilunga. Amayendele means we do not need police permits and passes to go and pay homage to Mpezeni, Chitimukulu or Gawa-Undi. Unless HH is restricted by a court of law, there is no way that Bo Stella should be sending armed police to tear gas a citizen away from Chipata. Hakainde is not a mouse that needs to be smoked out of a hole. He is certainly not a rabid dog that needs to be quarantined to his Kabulonga home. It makes absolute no sense that the Zambia Police should take pride in restricting the constitutional liberties enjoyed by a free people.

The United Party for National Development (UPND) is one of the leading political players in our country. In a democratic nation, political participants should have the liberty to compete for political ideas in the electoral marketplace. It does not matter that HH is politically annoying to President Sata. In fact, I find some of HH’s statements against Sata to be self-indulgent and occasionally silly. But that is, within reason, a lawful liberty that is and should be constitutionally protected. Anyway, State House itself does return HH’s fire for fire. And HH’s political candor has been met squarely by the greater vulgarity pasted on State House letterheads.

Stella Libongani

Nevertheless, political silliness is not one of the reasons why citizens should be denied their “Amayendele liberties.” Subsequently, as a citizen of this country HH has the freedom to hold and promote his political opinions. He should be free to air those opinions. It is up to the people of Chipata to decide whether they will believe HH or not. It is not up to Libongani to decide for us what the people of Mutenguleni want. Certainly, it is not up to the Police High Command to determine for the people of Malambo which candidate is to be believed. That being the case, it is concerning that the Police would so imprudently decide to interfere in what should be left for the people to determine. Zambians decided to vote for Michael Sata in 2011. They needed no help from bullets or teargas. And Zambians certainly need no bullets to determine for them the person they will vote for in 2016. We are Zambians and bullets have never been our way of resolving our political differences. And I hope Bo Stella will keep it that way by exercising restraint in the way she uses teargas to deal with unarmed political players. Indeed if she is trigger happy, she could exercise her shooting skills on ducks, chickens and cockroaches, but not on the Zambian human like HH.

Ordinary folks are the primary defenders of democracy. Regardless of how strong or weak institutions of democracy are, it takes the will and resolve of a people to strengthen their stake in democracy. Zambians fought for democracy in 1964. Zambians fought for democracy in 1991. When faced with the prospect of a Third Term, Zambians hooped together again and fought for democracy in 2001. President Sata should never make the mistake of assuming that Zambians will give up on democracy in 2014. We have stated in this column, and we do restate it: Zambians have tasted the beautiful fruit begotten by the tree of democracy. Having found it to be so sweet, Zambians are unwilling to revert back to the ruthlessness and senselessness of the rotten shrub of dictatorship.

Hakainde Hichilema

Libongani is indeed in a very precarious situation. She could be thinking that by being cruel to HH she is somehow winning some favour from her boss. But what she might need reminding is the fact that, her boss also has some bosses: the people of Zambia. The people of Zambia elected President Sata and it is the people of Zambia that will decide his fate come 2016. That being the case, Libongani should hold allegiance to the government of the day, only as the custodians of the administrative state delegated to them by the people. It is true that politicians supervise Libongani. Our system of government is such that elected officials supervise, within the confines of the law, both the civil service and the security apparatus. This is done so that there may be law and order in our country. This is also done so that these security officials may at the command of politicians protect Zambia from internal and external enemies. It is ridiculous to stop HH as if he were an enemy of the State. We need soldiers and armies not to harass citizens but to protect citizens. Libongani should be sending police to facilitate HH’s safety in Chipata instead of sending armed paramilitaries to smoke him out of Chipata.

Trigger happy?

The Inspector General does have a choice in the matter. She has the choice to do right when democratic liberties are at stake. She should be impartial in the discharge of her functions. We like it that she is presiding over a sophisticated security apparatus. But she must know that she is doing it to protect our people and enhance democratic liberties. It is not worth it for her to erode liberties. Instead of focusing so much on HH, President Sata should concentrate on putting measures in place to control inflation and strengthen the value of the Zambian Kwacha, which could reach K7, 000 to a dollar in a few days. However, if President Sata fails to resolve these problems, Zambians will have no choice but to smoke HH out of his Kabulonga home and make him president in 2016. But until then “mayendele muno Zambia”. And as the people of Milenge would put it: umukashana wa mabele talangwa nshila!