Author Archives: Elias Munshya, LLB (Hons), MA., M.Div.

A Post-Africanist view on South African Xenophobia

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

Truth is the greatest antidote to error. The pain of truth is far more desirable than the comfort of lies and deception. It is better to build a continent or nations on a foundation of truth than try to build a people on false assumptions. For many years, Africans have been trying to live under a false conjecture that they are a united people. The pressure to try and appear to be united manifests itself in the senseless penchant for blood. What we see in South Africa today is terrible. But it is not new. Africans all over the continent have been butchering each other like senseless beasts. We must not pretend like South Africa is the only problem. The very foreigners being butchered by South Africans have been butchering one another in the countries they come from: Somalia, Congo, Rwanda, and Eritrea to mention a few. An answer to the problem of Xenophobia in Africa requires some honest soul-searching. It must demand some analysis, some deep questions. We must earnestly abandon, the false philosophies of a “united” people and adopt a worldview that is more attuned to African realities.

Munshya wa Munshya

Munshya wa Munshya

Just a few months ago, the people of South Sudan, fresh from independence, started to slaughter each other. The Angolan government has taken an anti-Congo stance that is so ridiculous that it has led the Ba Kongo people into a senseless xenophobic hatred between those that belong to Angola and those that belong to the Congo-Kinshasa. In the 1990s, Katanga governor Kyungu wa Kumwanza introduced the kuba telemusha doctrine in which the Luba-Kasai were ordered deported from Katanga so that they could return to their native Kasai region. The Bemba-speaking peoples of Katanga were among the people groups that participated in this ethnic cleansing. To date, Wa Kumwanza has not answered for his crimes. In Cote D’Ivoire, there is always a tension between northerners and southerners and between those that believe are genuine Ivorians against those believed to be of foreign origin. We have no space here to mention the struggles of Rwanda and Burundi. As for Somalia, the country remains ungovernable today due to the various warlords that have each claimed a chunk of the capital and the territory. In fact, someone has observed the more ethnically homogenous an African society is, the more likely it is to face serious political instability of murderous proportions. In Central African Republic, the Africans are killing each other, tribe against tribe, religions against religion, and vice-versa.

Cecil Rhodes is the patron saint of Pan-Africanism

Cecil Rhodes is the patron saint of Pan-Africanism

To address the issue of all this xenophobia, Africans must adopt new ways of thinking. The philosophical underpinnings and aspirations of the African continent must begin shifting. Africans must give up the burden of trying to be united. They must admit that they are diverse and different. The aspiration of being “one and united” people has created such a psychological obstruction for the African mind. From the time Cecil Rhodes proclaimed a united Africa from Cape to Cairo, Africans have not given up on this Rhodesian dream. The African needs some truth. And acknowledging that we are not “one” is the first step to healing. We are different. We could have the same colour of skin, and live on the same geographical mass called “Africa”, but we must acknowledge that we are a divided and diverse peoples. This acknowledgement has got to be the new foundation upon which we could build new stories and narratives that would help rather than distract Africa. The more we tell each other that we are “one” people, the more conflicts we have. Let us give up this lofty dream that is so unrealistic. Let us accept and embrace our differences no matter where those differences come from. Diversity and difference is, to some extent, socially constructed. As such, it does not matter how we classify ourselves, once we acknowledge these classes it could be the beginning point for healing.

President Zuma

President Zuma

After we acknowledge how different we are from each other, we must then, ask ourselves, how should I treat the person who is different from me? Should I kill another simply because they are different from me? Does “difference” provide me with a reason to kill another? There is power in “difference”, regardless of how we have come to conceptualize that difference. But the acknowledgement of difference must submit to higher values. And these values have more to do with how I handle the person that has been labeled or the person I have labeled as different. We need a philosophy of hospitality: an attitude to the strangers.

We need to realise that people do not need to become like “us” in order for them to escape our killing. The problem in South Africa is not the “us” problem, it is the issue to do with how different South Africans should treat the many different Africans, and how the many different Africans should treat the South Africans. Should they kill the other simple because she is the “other”? Africans need now embrace Post-Africanism. In Post-Africanism, we are not afraid to embrace difference.

As a post-Africanist, I am delivered from the burden of trying to push unity upon a continent that has never and would never be united. Instead, post-Africanism reaffirms the truth from Jesus Christ: “do unto others what you would love them do unto you”. Post-Africanism acknowledges the diversity of the African peoples. It sees this diversity as a strength not a weakness. It sees tribes, nationalities, and shades of blackness as a true strength of the African peoples. Post-Africanism then challenges these different peoples, to treat each other with utmost respect and love for the other. Doing so is truly liberating. You are no longer trying to force unity. You are no longer trying to disingenuously claim “oneness” with a people that are different from you. Instead, post-Africanism takes you towards hospitality. It makes you treat a Somali, a Bemba, a Xhosa, a Barotse, a Biafran, a Shangaan, a Kasai, just like you would want to be treated. It is this post-African hospitality that might just help and save Africans from butchering each other to extinction. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Liberty Defiled: President Lungu must stop police from invading church services

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

The wisdom of the ages is strikingly clear. According to Pope Celestine I, “we are deservedly to blame if we encourage error by silence.” The manifestation of tyranny is always subtle. Oppression, no matter how heinous, usually does have trifling beginnings. Those who end up being oppressors frequently never plan to. They become tyrants by the deafening silence of the disaffected. When the state acts to violate the inviolable rights of its citizens, it usually does so by abusing legitimate legal power. State violation of human liberty, is rarely about whether the state has the power or authority to punish the wrongdoer but about the processes followed when punishing such a wrongdoer. It doesn’t matter the motives of the state, if its actions have the effect of eroding constitutional liberties we must as a people hold such a state to lawful accountability.

President Lungu

President Lungu

To keep good order in our republic, security agencies must be allowed to use force, but this force must be reasonable. The nature of humanity sometimes calls for the use of force more often than satisfies our comfort. The Zambian state has a legitimate interest in ensuring that those that live in Zambia, citizens or otherwise, follow the law in the conduct of their personal affairs. To keep the peace is a sacred duty of citizen and alien alike. However, if peace is threatened, or if criminals begin abusing the peace of our country, then the security agencies are justified in taking appropriate and reasonable action to redress the harm. The key here is that force must be both “appropriate” and “reasonable”. The use of police power should be balanced by a respect for constitutional liberties. It is these constitutional liberties that act as a milieu in checking the abuse of state assets. Our constitution stipulates what the state can do and cannot do when it is using force. Police cannot just begin shooting thieves on the streets; neither should they mount roadblocks anywhere and everywhere.

In Zambia’s constitutional structure, bullets and bombs held by our militaries cannot be triggered or activated without consent from our elected politicians. Patience is the virtue of force. Bullets have no minds of their own. Bombs would love to boom, but before they do, the decision to have them explode must be made by rational civilian representatives. Soldiers, paramilitaries and all the forces in our country are under civilian supervision for political accountability. The Zambia Police and the Zambia Immigration are accountable to our elected officials, and the elected officials are, in turn, directly accountable to the civilian population. To abuse the military, the police or the immigration officers is an insult on the revered integrity of the Zambian people. Zambia is a democracy; it is not a military dictatorship and neither is it a police state. Both the President of our republic and the Minister of Home Affairs are directly accountable to the people in the way the security forces deploy force. There is no such thing as absolute freedom, just as there is no such thing as absolute state power. To deviate from our democratic system is to invite danger and court trouble. After defeating the Kaunda dictatorship in 1991, our people should not accede to the return of despotism.

Police Inspector-General Stella Libongani

Police Inspector-General Stella Libongani

In meeting a legitimate state objective, Zambia’s department of Immigration and Police over the weekend raided a church service and detained its worshippers. Congregants of the Swedish Pentecostal Church were to be released only after they showed their immigration status. Apparently, the police and the Registrar of Societies had been closely watching this church. Listening to the immigration department spokesperson, you would see that the state did seem to have a genuine objective in trying to stop illegal immigrants. But this is only but a part of the story. The state as, I have mentioned above, has a duty to be reasonable, proportionate and sensible in the way it deploys force. What is offensive with the action of the police is the chilling effect that such operations have on the constitutional liberties of the people. The Zambians’ freedom to worship is sacrosanct. Sending armed police to a church service is disproportionate and, at worst, unjustifiable in a democracy. Couldn’t the state have found a better way to address the illegal immigrant problem than raiding a church while a service is occurring? A typical church service in Zambia doesn’t last more than four hours. Couldn’t the police have waited until the service was over?

Munshya wa Munshya

Munshya wa Munshya

The police command have a choice about how they will use their arresting powers. The police power of arrest or detention is not a demon that manifests at an inappropriate time demanding a knee-jerk reaction from officers. It is not an uncontrollable beast that can only be tamed after it has drunk the blood of its victims. Rather, the power to arrest is to be deployed in such a way as to accord and respect basic liberties of the people. Respect for basic human liberties makes legal state action lawful; any disrespect for liberty makes legal state action unlawful. If the police have a choice between arresting people before, during, or after a church service, both common sense and law demand that they do so in a way that is least disruptive of constitutional liberties. The police must be sensitive to what we hold dear as a Christian nation. Church services are cherished by the soul of this nation. There is absolutely no justifiable reason, no existential threat, which a church service poses that should justify a paramilitary invasion. To say that the police can follow crimes wherever they want, whether it is in a church or otherwise, is plain nonsense. The police are constitutionally constrained in the use of power. They can’t just show up anywhere and everywhere in the name of policing. They should not just enter any church and disrupt a service on the pretext of arresting illegal immigrants. Immigration officers cannot just be detaining people simply because they have a legitimate reason to do so. It is liberty that gives legitimacy.

If a church service of the Swedish Pentecostal Church is not respected today, there is no guarantee that a mass celebrated by the Roman Catholic Church will be esteemed tomorrow. I request President Lungu and his cabinet to direct the police to delicately balance the use of force against the constitutionally enshrined respect for religious expression.

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Suggested Citation:

Munshya, E. (2015). Liberty Defiled: President Lungu must stop police from invading church services. Elias Munshya Blog (www.eliasmunshya.org) 10 April 2015

Wrong General?: Linda Kasonde’s opposition to appointment of Likando Kalaluka as Attorney General

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

President Lungu in exercise of his power has appointed a Mr. Likando Kalaluka as Attorney General of the Republic of Zambia subject to parliamentary ratification. This last week, a parliamentary committee met to scrutinize the appointment. It has been common practice that the committee would invite submissions from the Law Association of Zambia (LAW). The LAZ is a statutory body created to regulate the legal profession. More than that though, LAZ is also a “fellowship” of some kind that advocates for lawyers’ interests.

LAZ Vice-President Linda Kasonde presented to the committee what she stated to be the LAZ’s position over the appointment of Mr. Kalaluka. According to her, the Council of LAZ (which is a highest management committee) would not support President Lungu’s nominee. On close scrutiny, it has emerged that she might have presented to parliament views that are at most not representative of the Council of LAZ. There is doubt about whether indeed what Ms. Kasonde presented are the views of LAZ.

Ms. Kasonde in her submission to parliament did rightly state Article 54 of the Constitution of Zambia and the role of an Attorney General (AG). An AG is an ex-officio cabinet member and principal legal adviser to the Government. Government in this case includes all the three branches and their subsidiaries. The qualifications for appointment to the office of AG are that the candidate must be qualified for appointment as Judge of the High Court. This means that for a person to be appointed as Attorney General they must have been member of the Zambian (or any other commonwealth bar) for at least ten years.

Linda Kasonde - LAZ

Linda Kasonde – LAZ

Being Attorney General also comes with some bells and whistles: the AG on appointment becomes a “leader of the Zambian Bar”, and gets automatically conferred with the “status” of “State Counsel”. The most ridiculous aspect of Ms. Kasonde’s submission to parliament showed itself in the way she mistreated the subject of “State Counsel”. According to her, Mr. Kalaluka does satisfy Article 54 of the constitution to be Attorney General since he has been practicing for the past eleven years. Nevertheless, she feels that Mr. Kalaluka cannot be appointed AG because he does not have the necessary experience and respect to be a “State Counsel”. I must respectfully differ with Ms. Kasonde here. She conflates issues. In fact, she uses very selective and at most wrong law and authorities from other commonwealth jurisdictions. Mr. Kalaluka is not being appointed to be State Counsel, he is being appointed to be Attorney General. The test, therefore, that he must meet is not the test for State Counsel, but rather the test for Attorney General, which is ten years at the bar and “some respect”. In her submission however, Ms. Kasonde goes to use authorities that have to do with being conferred the status of “State Counsel” and completely ignores both convention and custom with regard to appointments of Attorneys General in the commonwealth. The authorities that Ms. Kasonde uses on Queensland, Scotland and British Columbia are irrelevant here. Here President Lungu is appointing a quasi-political officer known as Attorney General.

Perhaps a little tutelage can do for Ms. Kasonde. The role of Attorney General is a both quasi-political and political appointment. It is a politician (a President) who chooses the individual to be the principal legal adviser to government. This person as per constitution must have been a member of the bar for at least ten years. It so happens that this political individual appointed to be AG must be conferred the status of State Counsel as an auxiliary consequence of the political appointment. This role is not strictly a bar seniority position. It is a political process tampered by at least 10 years of experience.

If we went by Ms. Kasonde’s reasoning, then we must be using army procedure when electing a president since a president also becomes Commander-In-Chief of the armed forces. This is a ridiculous submission to say the least. When Zambians are electing a president, they are electing, not a soldier, but a civilian who after receiving the oath of office assumes auxiliary functions of Commander. The president of the republic becomes a commander, just as an AG becomes leader of the bar and gets conferred the status of “State Counsel”.

Ms. Kasonde mentions that Mr. Kalaluka is a man of integrity, he has good character but for his “lack of relevant experience” he would be suitable for office. Bo Kasonde might need reminding that these are the qualities we need in an AG: a person with good character and integrity. She also submitted that Mr. Kalaluka needed a “little more experience”. Isn’t this insulting? Kalaluka has been a member of the bar for eleven years. He has appeared in all levels of court. He has an LLB from UNZA and an LLM in disability law from Ireland. How then does, according to Ms. Kasonde, he not meet the requisite experience? All those who have been at the bar for over ten years should really question Ms. Kasonde’s thinking here. Today it is Kalaluka and tomorrow it could be anybody. I cannot possibly stomach this kind of reasoning from Ms. Kasonde.

Ms. Kasonde then alludes to the position that a group of State Counsel took over Mr. Kalaluka. According to her, several individuals currently holding this rank do not support Mr. Kalaluka. While I really do understand their concerns, I do not believe these concerns are fatal to a political decision such as this. They just do not want an eleven-year call to join their ranks. But these lawyers need to separate their own sectarian interests from the whole. State Counsel are advisory and are consulted from time to time, but they do not make decisions for the Law Association of Zambia. And yes, as AG, Mr. Kalaluka would become a leader of the entire Zambian bar including these very State Counsel, but that is a political role. A republican President, who otherwise has never even held a gun, does by virtue of the political office become a commander of all the guns held by our armed forces. It would be ridiculous if soldiers objected to this and stated that they would only “respect” a Commander-In-Chief who knows how to shoot and kill the enemy.

Munshya wa Munshya

Munshya wa Munshya

In making the discussion above, I have made it clear that the sentiments that Ms. Kasonde purported to present to parliament were actually her own. I am skeptical if these sentiments are indeed representative of the LAZ Council. To this I must now turn. The current term of the LAZ Council comprises sixteen members: President Chisanga, Vice-President Linda Kasonde, Secretary Likando Kalaluka, and members Mr Mwenya, Mrs. Yangailo, Mr. Mwitumwa, Mr. Lisimba, Mr. Tafeni, Mr. Muyatwa and Mr. Dzekedzeke. Others are Mr. Mwiche, Mrs. Kateka, Mr. Banda, Mr. Mwitwa, Mr. Sikaulu and Mr. Chulu. Apparently, the Council must meet regularly to make decisions on day-to-day decisions for the LAZ. Once a republican President nominates an Attorney General it is general practice that the nomination is given deference. LAZ does routinely support these appointments. As for Mr. Kalaluka’s appointment, however, it seemed to be a little complicated. Obviously, Ms. Kasonde convened a LAZ Council meeting but they could not form a quorum. So she innovated to have the meeting vote by “e-mails”. According to her letter sent to all members of the Zambian bar, the vote went as follows: Mwenya, Tangailo, Mwitumwa, Lisimba, Tafeni, Muyatwa, and Dzekedzeke were in favour of having Mr. Kalaluka as AG. The following voted “no”: Kasonde, Mwiche, Kateka, Banda, Mwitwa, Sikaulu and Chulu. This means that the vote was a tie, seven were for the resolution and seven were against the resolution. After noting that the vote was a tie, Ms. Kasonde decided to use a very controversial provision in LAZ rules to vote again (twice) so as to break the tie. And she voted again against the resolution to support Mr. Likando Kalaluka. There is a lot to be said about this controversial provision (SI 155 of 1996).

From this voting pattern, I have some questions, and please indulge me. As you can see from the foregoing, the president of LAZ Mr. George Chisanga decided not to vote. He abstained. Mr. Kalaluka too was asked not to vote because he was the subject in the proceedings. It appears to me that Ms. Kasonde should have recused herself as well since she obviously was patently against Mr. Kalaluka. She shouldn’t have voted twice. Having regard to all these issues, I am of the view that this “e-mail” voting was patently unfair and appears not to have been a correct reflection of the sentiments of the members of the LAZ Council. Controversially, I am shocked that Ms. Kasonde went ahead to make presentation to the parliamentary committee inspite of the obvious confusion inherent in this process.

Another disturbing pattern of the vote is that mostly, it is Bemba names that were against the resolution. I do not want to accuse the Bemba members of the LAZ Council to be tribalists, but they might need to explain this. How come it is Kasonde, Mwiche, Kateka, Mwitwa, Sikaulu, Chulu and Banda that are against Kalaluka? Did tribe play a role in this? Interestingly though, Mr. Kalaluka’s CV we have obtained seems to indicate that his languages are English, Lozi and Nyanja. Conspicuously missing from this is Bemba! Interesting. Nevertheless, Bemba-speaking citizens of our republic need to really create a space where we can in unity discuss this idea that we are the centres of this nation while others are only but peripheral. And going by the voting pattern, I call upon our people to realise that merit should not include “tribal” merit. As an Aushi, I must state here it is not in the interest of our shared Bemba commonwealth that we should as a people become insensitive to the interests of other citizens. Zambia is for all Bembas as well as Lozis. President Lungu nominated a Lozi citizen of our republic to be our government’s chief legal adviser, it is only right that we give great deference to this nomination.

Mr. Likando Kalaluka has satisfied all the requirements for appointment as Attorney General of Zambia. I appeal to our parliament to ignore the submissions given by Ms. Linda Kasonde and ratify this appointment. There is a lot of work to do, and the sooner Mr. Kalaluka starts the better! As for Ms. Kasonde, she perhaps might need to read a little more about what obtains in British Columbia, Scotland and Queensland about Attorneys General, and not just about “State Counsel”.

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Here are the two documents Ms. Kasonde submitted to parliament and a letter she wrote to the LAZ Council after using their name to attempt to derail Mr. Likando Kalaluka’s nomination. Judge for yourselves.

LAZ SUBMISSION ON THE APPOINTMENT OF AG

LAZ MEMORANDUM ON APPOINTMENT OF AG 18.03.15

Same or Different?: Contrasting the Mutuna Tribunal with the Nchito Tribunal

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

When President Sata established the Chikopa Tribunal to probe the conduct of Judge Mutuna and Judge Kajimanga, I vehemently objected to that action. My reasons for objecting were provided in the article published by the Daily Nation Newspaper and the http://www.eliasmunshya.org blog. I supported Justice Fulgence Chisanga when she stayed President Sata’s decision. This case, will be referred to as Mutuna I, and should not be confused with the other Mutuna case, which was heard by Justice Siavwapa. Justice Siavwapa has since issued his ruling in the Mutuna II case. In this article, I will not dwell on the Mutuna II case. Suffice here to mention that Mutuna II might be under appeal as the Attorney General has objected to the holding of Mr. Justice Siavwapa. Indeed, as and when the case of “Mutuna I” is overruled by the Supreme Court of Zambia, it remains good law. Justice Siavwapa needed to follow Mutuna I when he ruled for Judges Mutuna and Kajimanga in Mutuna II. But we should return to this case another day.

The Mutuna I case ended up in the Supreme Court of Zambia, where Acting Chief Justice Lombe Chibesakunda and her majority held that the President of Zambia does have unfettered powers under the constitution to suspend judges and establish a tribunal to probe their conduct (Article 98). It is this holding that I found quite offensive to say the least. At that time, I held and still do hold that the President of our republic, while being the Executive Head of our nation can not, or perhaps should not, have unfettered discretion or powers to suspend judges based on “information” that he alone receives (see Mutuna and others v. Attorney General, [2013]). The chief reason why the President shouldn’t be given all this power is because of our constitutional doctrines of “separation of powers” and “judicial independence”. The power of the president to establish a tribunal to probe judges must be balanced by the doctrine of judicial independence so that the president is estopped from establishing tribunals in ways that erode this doctrine. This was the issue that the application (or trial) judge Madam Fulgence Chisanga had to resolve. There was no question about whether the President has the power to suspend the judges (Article 98 of the Constitution of Zambia), but rather how we must balance that power with the doctrine of judicial independence (Article 91 of the Constitution). So the issue was about whether we needed to use the Judicial Complaints Authority to deal with the Mutuna and Kajimanga complaints first in keeping with Article 91 before we use the President’s power in Article 98. Justice Chisanga gave a stay of proceedings and set a hearing date into these issues. However, the Supreme Court who stated that the President’s power to suspend and appoint a tribunal is sacrosanct overruled her. Even if I disagreed with the Supreme Court’s ruling, I still respect it as part of our present constitutional law.

Having regard to this background information about the Mutuna I case, can we say the same about the recent tribunal established to probe Mr. Mutembo Nchito? Mr. Nchito, after learning that he had been suspended by the President, rushed to the High Court to obtain a stay of proceedings of the tribunal. Justice Chitabo granted the stay and set the hearing date. It was only after the intervention of the Attorney General that Justice Chitabo reversed himself and quashed his stay. It appears that Mr. Nchito wanted to use the strategy and the arguments that Judge Mutuna and others had used. But the problems I find is that the two cases are quite different. In fact, the two cases are very dissimilar. What was at issue with Mutuna I was the “independence of the judiciary” from executive interference. The objection was reasonable, the president should not be seen to be interfering with the judiciary when the constitution has Article 91, which prescribes the route to be taken when dealing with an erring judicial officer. Regardless of how Mr. Nchito holds himself to be, with regard to the position of the Director of Public Prosecutions, our constitution does not provide that office with any elaborate way for dealing with complaints against the office of DPP. As such, while the DPP does have the security of tenure, she shouldn’t have the security against presidential suspension. There is no other doctrine upon which the DPP could challenge a presidential suspension or tribunal. The doctrine of separation of powers, applies to the judges, but it does not and cannot apply to the Director of Public of Prosecutions since the DPP is only but an arm of the administrative state. The DPP is an arm of the Executive and belongs to the Executive, there is no way a holder of that office should impose upon itself the doctrinal protections afforded only to the judiciary.

Nchito should stop hiding behind bombasa - Munshya wa Munshya

Nchito should stop hiding behind bombasa – Munshya wa Munshya

In fact taking this matter further, I find it quite anomalous that the Zambian constitution affords the DPP security of tenure. In many ways security of tenure has everything to do with shielding certain government officials from direct political accountability. Judges for an example do have security of tenure and consequently have no direct political accountability. However, all officers of the administrative state should not have any security of tenure because security of tenure has the potential to amputate such officers from the process of political accountability. The role of the DPP is to carry out prosecutions on behalf of the “people”. Isn’t it ridiculous that for the same people to remove this officer they must jump too many hoops? The role of Attorney General in fact has a larger public interest role than the DPP and yet she has no security of tenure under our constitution, why should the DPP have it? It is this limited security of tenure that made Bo Mutembo to make some decisions that went against common sense and the rule of law. Why wouldn’t he not issue a nolle in his own case if to remove him from office, we must first move mountains? Justice Chitabo was right to reverse himself over the matter. Mutembo should be able to appear before the tribunal and account for the serious allegations of unethical behavior and most probably crimes.

Lungu, Nchito, Illnesses the and the challenge of transparency

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

The fact that events are identical does not necessarily mean that they are the same. This sounds rhetorical, doesn’t it? You cannot tell how the public will react to one thing by looking at the way they reacted when similar events happened. Similarly, you cannot predict the way the courts will rule simply because of the way they reacted a few years ago. Times do change and so do circumstances. In the changing of the circumstances, we must all praise the current President of our republic in the manner he has handled the affairs of his personal health. President Lungu collapsed on Sunday and was forthcoming about it. He did not try to conceal and neither did he run away “ku bwendo” to hide himself. He instead invited the press, the cameras and the columnists to answer their questions by his hospital bedside. What is really remarkable about that interview at Maina Soko Military Hospital is that the president identified with the concerns of the common man by expressing his desire to go “back home after the doctors release” him. We should all commend His Excellency for that. It only takes a few years for one to know that sickness and human frailty are a reality of human existence. Humans are mortal and they have time attached to their existence. Humans get sick and might need surgery and medical attention. As such, Zambians are concerned not by the leader getting sick, but rather by the secrecy that previously characterized presidential illnesses. When President Mwanawasa was obviously incapacitated in London, the then Vice-President Lupando Mwape Katoloshi quipped that Levy was healthy and was in fact “jogging in London”. Mr. Katoloshi’s answer infuriated then opposition leader Michael Chilufya Sata who asserted that “ubu lwele bwa Mfumu litensha chalo”.

President Lungu

President Lungu

In 2013, when it became all but obvious that President Sata was clearly incapacitated, Zambians were met by the insolence of silence and the harm of denial. The official State House George Chellah line was deny, deny and then deny some more. Such behavior was barbaric. Mr. Brebner Changala went to the extent of asking the cabinet and the courts to try and have a tribunal constituted to probe the health status of the then president. This was completely unnecessary had State House been more transparent and forthcoming about the condition of the late president. But all these good efforts were recompensed by repeated spite and injury. Indeed, for those who followed the illnesses of the late president, we were more concerned at the unrealistic denials than we were at the fact that President Sata was in fact sick. We all knew that on this side of heaven, we are all mortals on a pilgrimage. That being the case, the head of state and those close to him must be more forthcoming by opening up about illness and the course of treatment being followed. It was ridiculously foolish to parade a sick man and cover that injury with plastic smiles. This is the more reason why when the widow wanted to succeed her late husband questions were asked, about that huge smirk in parliament.

Again, we must commend Lungu for giving us information straightforward and for showing “ipompo” on his forehead coming from his alleged collapse. We also must commend him for releasing data quickly about what doctors suspected to have been the cause of the health scare: malaria, fatigue or most probably achalasia. This achalasia we are told is a recurring medical condition that was treated thirty years ago. Lungu’s actions inspire confidence, and I have no doubt that if he were to become incapacitated he would be willing to give up power.

Shortly before leaving for Johannesburg for medical tests and treatment, President Lungu suspended Mr. Mutembo Nchito the Director of Public Prosecutions. For his part, Bo Mutembo was swift to obtain “an injunction”, or is it a “stay”, against the tribunal. In his mind Bo Mutembo is probably thinking that this tribunal should be stopped just like judges Mutuna and Kajimanga succeeded in stopping the Chikopa tribunal. We await how Judge Chitabo will handle this matter when it comes up for inter-partes hearing on March 23, but my gut feeling is that Bo Mutembo will not get away that easily. The case of the judges is quite different from the present case. I know there are some people who are trying to fault Judge Chitabo. The judge is just trying to do his job.

Zimya Neighbour

Zimya Neighbour

Ultimately though, justice will prevail and Bo Mutembo will have to account to the people of Zambia about his alleged criminal activities. Nchito was ever so zealous to prosecute others, but when the time comes for him, he wants to stop his prosecution by any means possible. Well, it will not work this time around. Without the bombasa of a nolle prosequi, Bo Mutembo should be prepared to appear before Justices Silungwe, Ngulube and Chirwa as they probe his conduct as a DPP. Crime does not pay and neither does bombasa. It is good to be proud of your station in life and enjoy the little you have with joy than try to live large on the basis of theft, arrogance and pride. A humble lawyer’s chamber with joy is so much more desirable than running an airline with alleged stolen dough. It is a pity that a man credited with a fight against corruption has himself found himself in a wave of a very complicated matrices of plunder aimed at shielding himself, his friends and the infamous cartel. The law is finally catching up with him like it has always done with the many others. For now, however, we wish President Lungu a quick recovery and may God help restore his health. Leading this nation might mean making very difficult decisions such as the one to do with suspending Nchito. He had to be suspended though, with achalasia or not.

Zimya Neighbour: When A Director of Public Prosecutions becomes a Director of Public Criminality

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

The case is very familiar to many of us. But for the sake of clarity, we might need to restate its facts. In 2013, Rupiah Bwezani Banda was in court appearing for various charges under the Anti-Corruption Act. We need not mention that Banda is a former president of the republic who nevertheless had his bombasa removed by parliament. So sad that the current Director of Public Prosecutions (DPP) wants to hide in a bombasa stitched with “nolle”. In our constitution, those accused of crimes are presumed innocent until they are proven guilty by an impartial and competent tribunal. However, in spite of this legal presumption a newspaper owned by Mr. Fred M’membe, a member of the Zambian bar, continued to describe Mr. Banda as a thief or as corrupt while the trial was on-going. Such characterization led to Mr. Banda’s legal team applying before the magistrate court that Mr. M’membe and his newspaper be cited for contempt of court. Contempt of court is a criminal offence and is punishable by jail or a fine.

Zimya Neighbour

Zimya Neighbour

Mr. Banda’s lawyers applied that they be the ones to prosecute this matter. Their decision to do so made sense. It was their client who had been affected and our criminal procedure permits a party to commence a private prosecution. However, when Mr. Banda’s lawyers appeared in court to prosecute this matter, the DPP Mr. Mutembo Nchito took over the matter so that he could prosecute it himself. In our system of law, the constitution gives the DPP wide powers to decide both the operational and the policy side of prosecutions in Zambia. As far as private prosecutions are concerned, the DPP has the power to take over the matter, discontinue it or change some aspects of the prosecution. There is a reason why our laws allow the DPP to do so: that all prosecutionary power is reposed in at least one constitutional official. The only problem with Mr. Nchito’s action was that he is a personal friend and business partner of Mr. M’membe’s. Mr. Banda and his lawyers got concerned that while the DPP does have the legal power to assume the prosecution, he nevertheless was so close to the alleged contemnor, for him to ensure an effective prosecution. What is even stranger is that the DPP was going to prosecute Mr. M’membe who is his personal friend while Mr. M’membe himself uses the Nchito law firm as his lawyers. If this does not sound right, it definitely doesn’t smell right too. It is a matrix of confusion and a ticket for corruption. Mr. Banda’s lawyers took this matter to the High Court to ask the court to remove Mr. Nchito from prosecuting this matter due to the fact he was too close to Mr. M’membe.

Brebner Changala

Brebner Changala

Mr. Justice Chalwe Farai Mchenga issued a ruling just this week. It is a powerful ruling. It is ruling that helps to restore common sense in our criminal justice system that seems to be held hostage by the infamous cartel. It should be simple common sense for any one to note that Nchito cannot effectively prosecute M’membe. Teti fibombe. The only thing Nchito claimed was that he decided to take over the matter from Banda’s lawyers because “the law allows him to do so”. You do not make decisions simply because “the law allows” you to do so. This cartel seems to have no respect whatsoever for principles of equity, common sense, and the rule of law. Regardless of whether the law allows one to take over any matter, it should occur to any reasonable woman that a close friend couldn’t successfully prosecute her friends. You do not need article so and so or CAP ntwenu kane of the laws of Zambia. All you need is simple common sense. Obviously, Justice Mchenga pumped a little common sense into the matter and has removed Mr. Nchito from claiming to take over the matter from Mr. Banda’s lawyers. According to Mr. Justice Mchenga, Nchito is a business partner of Mr. M’membe and as such he cannot objectively prosecute this matter. Additionally, according to the honourable judge’s finding, Mr. Nchito could intervene in prosecutorial matters if the matter has reached the “public interest” threshold. Nchito was wrong at law to assume this matter because he used the wrong legal test. He used the “personal interest” test and not the “public interest” test. If I were to add something to the honorable judge’s words, I would say that Nchito’s interest might have been worth at least K14Billion. And it is to this K14 Billion I must now turn.

Zimya

Zimya

It is common knowledge that Bo Nchito and his friend Fred M’membe decided to diversify from running law firms and newspapers to running indeke. They became ba cenda mundeke. It was not enough to deal with legal clients they wanted to fly airplanes. Like I mentioned last week, there is nothing wrong with flying airplanes, but “zimya neighbor” with alleged stolen money is not good for the country. In our laws, a corporation is a legal person and can contract debts on its own. However, if directors of a corporation having known that their corporation is dead and yet they still go ahead to contract debt for the corporation in order to allegedly steal from the corporation, those directors cannot be protected by the law.

I am not in any way alleging that Nchito and M’membe used Zambia Airways to steal from the Zambian people, I am merely stating that according to some charges brought against Nchito recently, this could as well be a possibility. But we may never know until an impartial court decides on the matter. If this matter came up to trial the question will be simple: having regard to what the directors knew about the company, did they go on to contract K14 Billion debt from the Zambian people knowing full well that the money will not go to the corporation but to their pockets? If this cash went to their pockets with intent to keep it in their pockets and deceive the Development Bank of Zambia then there is a criminal case. For sure the Zambian people will not know the truth until the courts decide. However, before the courts get to hear this matter, the DPP Mr. Mutembo Nchito walked into the courtroom and entered a nolle prosequi just like he had decided to be the one to prosecute his friend in the Bwezani case. It seems to me that there is a pattern here, a pattern of thievery, corruption and confusion. This cartel seems to be using constitutional power to escape criminal liability for their alleged misdeeds. However, just as ruled by Mr. Justice Mchenga in the case of M’membe, I believe the same principles should be used in the case of Mr. Nchito’s nolle. An alleged criminal should not escape alleged liability by invoking to enter an alleged nolle thereby depriving the Zambian people some alleged truth about the alleged criminal whereabouts of their alleged K14 Billion. The DPP should save us the drama and help us escape the word “alleged”, so that we can come to the truth about Bwezani, Nchito, M’membe and the K14 Billion.

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Suggested Citation: Munshya, E. (2015) Zimya Neighbour: When A Director of Public Prosecutions becomes a Director of Public Criminality. Elias Munshya Blog. Available at (www.eliasmunshya.org) (11 March 2015)

Indecent Discretion: Why Nchito’s “nolle” defies both law and common sense

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

As a constitutional democracy, our republic must be led and controlled by both the written constitution and the unwritten spirit of constitutionalism. It would be ridiculous for officers of the state to go on a rampage abusing their discretion simply because the text of the constitution so says. It is dangerous to read or apply the text of our constitution without regard to important principles that undergird it. It would be wanton recklessness for our people to do stuff simply because the constitution says so. It can never be justified to do injustice to another simply because the rote text of the constitution so says. Beyond the written text, we must adhere to common sense, common sense of justice and the call of sanity rationed by a command of justice.

There are a number of officers in our republic who have been given the sacred duty to exercise discretion for the good of our democracy. This is a sanctified calling. It is a huge responsibility. Discretion is not an opportunity for selfishness, nepotism and tribalism. For example, the Head of State has discretion to choose a cabinet of her choice from among the Members of Parliament. She also has been given the discretion and prerogative to elect 8 individuals who should become members of our national assembly. The Head of State also exercises numerable other prerogatives. Indeed for our democracy to work, prerogatives must be had. Cabinet ministers also exercise some prerogatives. In some cases, these prerogatives are quite wide and often ambiguous. The Attorney General does have powers and prerogatives within her jurisdiction and so does the Director of Public Prosecutions. When it comes to the Zambia Revenue Authority Act, the Commissioner General has the prerogative to alter, change or make exceptions to taxes imposed on individuals, companies or corporations. Wouldn’t it be offensive to common sense if the Commissioner-General used this prerogative to exempt her personal companies from paying duty? If the Commissioner-General can’t be allowed to abuse her discretion in that manner, how on earth did Bo Mutembo get the guts to believe that he could walk into our sacred chambers and stop the prosecution of a case involving his own alleged criminal activities?

The exercise of state power, discretion, and prerogative is not just limited to the texts that empower these individuals. The exercise of these prerogatives is tied to the spirit of the constitution and the rule of law under whose guidance the said texts predicate. Several principles undergird the exercise of the prerogatives or discretions of state power. The first principle predicates from the idea that any officer of the republic should exercise her powers to the furtherance of the interests of the republic. Second, any one exercising state prerogatives should recuse themselves, if the exercise of their prerogatives will directly impact on their personal interest. Now there is no law that should actually say so in order for this presumption to be valid. There are so many presumptions at law that we take without having to demand that they be written before they are valid. To demand that everything in law should be written first before it takes effect would be tantamount to threatening our democratic civilization itself.

Bo Nchito has been accused of heinous crimes against individuals and the state. That being the case, we must follow through the law and let the courts deal with these cases. If not for any other reason, it should be offensive to public morality for a DPP to enter a nolle in a case that involves his or her own alleged crimes. The letter of the text of the law has given powers to the DPP to discontinue prosecutions of any criminal matter. But the law never envisaged a situation where the DPP would discontinue a matter that involves her own alleged personal crimes. However, in the specific case of Mutembo Nchito, we all should be patient enough to hear what the Magistrate Court will finally rule on the matter.

Nchito should stop hiding behind bombasa - Munshya wa Munshya

Nchito should stop hiding behind bombasa – Munshya wa Munshya

When people demand that Bo Mutembo should account for his alleged criminal activities, they should be taken seriously. Mutembo and his cartel did well to go beyond the business of running a law firm to the business of running airlines. Good for them, they diversified. However, we should be firm in our demand that those who want to run airlines, law chambers or mines should do so with a specter of integrity. Regardless of how many airplanes you acquire, if you are using stolen money, it cannot be good for the county. As we used to say in Chiwempala, “zimya neighbor” using “indalama isha kwiba” does not help in the long run. Here is what Bo Mutembo should do. Stop hiding behind the bombasa of nolle prosequi. We have had presidents in this country whose bombasa got stripped and they had to account for their alleged crimes. These presidents commanded our soldiers, ruled over the police, and all the million guns in our country quivered at their signature. What makes Bo Mutembo think that he could get away from the people’s process using a “nolle”? There have been great men and women in this country who have had their day in court. Bushe bena tabali bantu? What makes Mr. Zimya Neighbour think that he can get away with these allegations? The best way to beat these allegations is not by all this “nolle” nonsense, but rather by accounting to the people of Zambia. Zambians have some questions. Bushe indalama sha ndeke shali sha kwiba? What about the court judgment, did you falsify it? When you became DPP did you know that you had stolen “katundu” from the Zambian people? When trying to convict Chiluba and his friends, did you cook some evidence? These are some questions our people are asking. And it is only right that they get an answer even if that answer has to be whispered in court. Bo Mutembo, please save us the drama and take off that bombasa, tafiweme!

President Lungu

President Lungu

President Edgar Lungu is now Head of State. He should act quickly in matters that threaten national integrity. It is not right for His Excellency to ignore this matter when there is some evidence, at face value, that suggest some crimes may have been committed by the occupant of a constitutional office. President Lungu should not be ruling through “slow motion”. There are decisions in this country that must be made before making trips to Addis Ababa, Cape Town or Mfuwe. If he can’t act on this serious matter, we should all doubt his seriousness to fight corruption and rein in a cartel that went berserk dogging allegations of crimes, theft, and corruption.

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Suggested Citation: Munshya, E. (2015). “Indecent Discretion: Why Nchito’s “nolle” defies both law and common sense”. Elias Munshya Blog (www.eliasmunshya.org) February 2015