Author Archives: Elias Munshya

Splitting Lusaka into two: Leadership of hope for Zambia’s capital region

Munshya, LLB (Hons), M.Div.

The City of Lusaka, as messy as it is, is still very strategic to the economic interests of our country. We must take great care of the hands that feed us. As a nation, we must arrange and repackage this city in ways that would ensure development for its people and generally for Zambia. The government should repackage Lusaka at two levels: first at the political administrative level and secondly, at the municipal level. There is just no other way we could solve the urban problem presented by Lusaka than finding different ways of how to run this capital city of our republic.

There is hope for Lusaka

There is hope for Lusaka

A number of analysts have pointed out the infrastructure deficit in Lusaka. I will not repeat those concerns here. They are eloquently loud and insolently clear. Lusaka is catering for far too many people than it was originally designed to hold. We have slightly over 2 million inhabitants in Lusaka. With this population increase we must change our approach to the way we govern and lead this city. The Patriotic Front government should begin to prioritize the local government administration of Lusaka. I wish to propose some reforms for the city of Lusaka and with that the province of Lusaka as well.

At political administration level, the Province of Lusaka should be split into two so that the current city of Lusaka boundary becomes a province on its own. The new province must have its own provincial minister and administration. Transforming the current Lusaka city into a province will ensure that the provincial administration takes the time to concentrate on trying to resolve unique issues faced by this huge urban dump. Currently, the Lusaka Province political administration spreads from Chirundu to Lusaka. This is a very huge area incorporating rural areas as well as the metropolitan Lusaka. Under current circumstances, the provincial administration will have to spread resources between the urban and rural areas. From experience, we know that challenges faced by the city dwellers are somewhat different from those in rural Lusaka province. Balancing these disparate needs is a huge challenge. Having the urban Lusaka become a province on its own could mitigate this. Consequently, if rural areas are unglued from the city, it will give time and space for these rural areas to develop and to craft a development agenda suited to rural realities. It would be a win-win situation.

Arguments have been made to divide Northwestern Province into two or three provinces. In fact, the PF government has moved to create a new province splitting the Northern Province into two. Muchinga has become Zambia’s 10th province. From this we can tell that land mass is the major determinant in President Sata’s local government strategy. I do not fault him for this. However, added to this land mass strategy should be the population density strategy. Using the density strategy it is clear that the City of Lusaka already carters for far more people than the entire Copperbelt Province. Lusaka city has more people than both Muchinga and Northern provinces. Additionally, Lusaka city population is more than Luapula and Northwestern combined. If there is any reason why this city should be made into a province, this should be it.

The 2 Satas - The President of Zambia and the Mayor of Lusaka - 2014

The two Satas – The President of Zambia and the Mayor of Lusaka – 2014

The changes I am proposing at the political administration level should also be happening at the local municipal level in Lusaka. The current city of Lusaka is unsustainable under one municipal authority. We have to think differently. The PF has been on rampage creating close to 30 new districts from 2011 to date. Most of these new districts are in rural areas with far fewer populations. Again, I think there is good reason to create new districts in Lunga, Nsama, or Chembe. But while doing this for rural areas, the PF should also look at the urban strategy and perhaps create some districts in the current Lusaka city municipality. It is absurd that the City of Lusaka should have one local authority presiding over close to 2 million inhabitants. The residents of Lusaka are the least represented per capita in terms of municipal representation. There is a smaller councilor to citizen ratio in Milenge District than in the Lusaka municipality. This is even though Lusaka city supplies more economic value to Zambia than Milenge. We must provide to Lusaka the local government profile best suited to its needs. The Lusaka Civic Centre just cannot effectively provide services to 2 million people.

Hope for Lusaka, hope for Zambia

Hope for Lusaka, hope for Zambia – Munshya

At municipal level, Lusaka city should be divided into four or five smaller municipal units that are more manageable. These municipal units could be divided along constituency lines. So Matero could be a municipality, Mandevu its own municipality and so on. These new councils could have their-own councilors and mayor. Smaller municipal units will be closer to the people. Smaller municipal units will leverage resources far much better than can a Mayor who presides over 2 million people. In fact, with 2 million people, the current Lusaka City arrangement is so politicized that any resources it has will always go towards the areas where the politicians live. This is no wonder the City of Lusaka fire department has diverted its fire trucks to water President Sata’s “ulunkoto” at State House and surrounding areas. Perhaps time has come to stop this abuse, and let the people of Matero or Mandevu to have a local government closer to them. If Munali, became a municipal unit, it could collect levies and deal with municipal issues better suited to its unique needs.

Smaller municipal units also make sense for Lusaka in terms of spreading the Lusaka wealth. Imagine what Mandevu could do if it begins levying its own market levy and its own business licenses. It could also provide employment for countless young people bringing development to their local areas. Smaller municipal units could also easily leverage donor funding and support. Currently, the city of Lusaka cannot do this in its current form. All resources get diverted to the rich and powerful areas, to the amayadi. In the current arrangement, Woodlands, Kabulonga and State House will always take priority. This must end. And the best way to end it is by giving power to the people and let the locals of Kabwata to control their own local resources.

Further centralization of power is not good for the development of an overgrown city like Lusaka. To help Lusaka flourish, we must change something about it. We must begin to think differently. We must leverage the population that Lusaka currently has. We must take the population as a blessing. We must invent new ways of providing services to this huge population. There is no better way to get started on doing this by truly devolving power to the smaller units. Having started on this new local government agenda, the PF government should expand it to include not only Chembe in Luapula but also Chawama in Lusaka.

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Suggested citation: Munshya, E., ‘Splitting Lusaka into two: Leadership of hope for Zambia’s capital region’ Elias Munshya Blog (July 22, 2014) (available at http://www.eliasmunshya.org)

On Facebook: President Sata and the absurdity of his rule through pictures

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

 And then we all saw the pictures. They came 24 days after President Sata’s unannounced departure to Tel Aviv, Israel for a “working visit.” In the pictures taken with a Nikon D90 by Thomas Nsama, on July 14, between 9:02 and 9:34, President Sata could be seen addressing a cabinet meeting. Most ministers were present in those pictures. Conspicuously missing, of course, was Hon. Wynter Kabimba who had travelled to South Africa for a conference on “constitutionalism and the rule of law.” Quite a paradox, we must confess. It was President Sata’s Press Aide George Chellah who released the pictures to the press. There was no story accompanying the pictures. The only thing explained was the fact that President Sata was addressing a Cabinet meeting that day. While it is almost difficult to tell the actual wellbeing of a person by looking at a picture, one can safely infer that President Sata looked very fit on those pictures. He definitely did not appear like one walking out of a coma. As Robert Mugabe would say, he looked as “fit as a fiddle”.

The walk on picture

The walk on picture

On his famous Facebook page, President Sata released those same pictures, and then informed the over 100,000 followers that he’s just had a cabinet meeting that morning. President Sata then went on to give a laundry list of more promises that he was going to work on. In the evening main news, ZNBC Television copied that Facebook posting and repeated the same laundry list of projects the President had promised to work on. With that ZNBC news, the announcement of the return of a man who had not been seen for 24 days was now complete. What an absurd way to return.

President Sata did owe some kind of explanation to the nation about his 24-day absence. It was not enough to just address cabinet, take a few photos and then pretend as if everything is alright. A lot had happened in 24-days and it is only fair that he clears up some issues connected with that absence. It is not alright to just dish more promises on Facebook. Zambians do not need more promises than they do need to be assured that their Head of State is not only alive, but is also well. It is not promises Zambians needed during this time. They expected a greeting from President Sata and some explanation on the lines of “bane nalifuminepo nomba nimbwela. Nali endafye bwino uko naile”. But he said no such thing. He just walked into a cabinet meeting, took pictures and left the people of Zambia to dry.

There is a sense in which the speculations around President Sata’s health are not healthy for Zambia. But the actions of the President are also quite questionable. Instead of helping to clarify these difficult issues, the President and his handlers are stoking more gossip. The government cannot just be blaming “small tribes” from the South about these rumours. It has to come to terms with its own actions and take some responsibility. How does sending of photographs of a presidential cabinet meeting ever help to resolve the problems? Couldn’t government and State House have known that the still pictures will just raise more questions than answers?

It has been customary for a sitting president of Zambia to have a ZANIS news crew available to him all the time. It is quite absurd that State House chose to ignore this crew when it came to the brief reappearance of the President. In fact, ZNBC had to depend on the President’s Facebook page for news in connection with the reappearance of Michael Chilufya Sata. This is not only shocking but also questionable. When people question this wisdom, government reacts and tries to push back with brutal threats only fit for Mugabe’s Zimbabwe and not our Zambia. Honestly, the Bemba say: ukuteke mbwa mano. Governing is difficult. But it also takes a people of wisdom to govern well. While it is true that some of our people are determined to misunderstand whatever government is doing, we cannot help but wonder why government action seems to stoke and not halt those misunderstandings.

It is not enough to keep blaming “evil people” about their wishes for President Sata to be sick. Government should act appropriately so that it is clear from the start that they are not hiding anything. This whole episode has been so pathetically managed that no reasonable person can trust government on this issue. This PF government should do something better to help contain these rumours.

President Sata-Cabinet 1

President Sata and his cabinet

Does President Sata have “haters”? I bet he does. We all do. For sure after the ruling from Judge Chali in the Changala v. Attorney General case, this newspaper does have “haters” too. Those haters include the ruling of Judge Chali itself. Should we then blame Sata’s haters for wishing him sick and dead, I bet not. Democracy implies a governance structure that includes dealing with opposition, detractors and those who are plainly silly and petty. Ukuteke mbwa mano means that democracy calls for those in power to exercise good judgment and leadership in view of these detractors. As far as Zambia is concerned, we shall always have those who want to use gaps like this one to their own political advantage. But what we should not tolerate is a government that uses this justification to lie to the people of Zambia. It is easier to deal with the truth than it is to deal with lies. If Zambians are told the truth without deceit, our people can be spared the agony of guesswork that keeps nurturing the tree of gossip.

Munshya wa Munshya

What happened to the use of the good old microphone and a ZNBC video camera? – Munshya asks

While President Sata was gone, there were reports from the Israeli media that in fact he had not travelled to Israel to sprawl on a beach. Israeli media reported that he had gone to seek medical attention. There is no reason why our head of state should be ashamed of this fact, if indeed it were true. He is the President and we have the responsibility to take care of him in the finest of the world’s hospitals. But denying this reality not only annoys our people, it also gives the impression that Zambians are being taken for fools. If indeed the President is sick, why not just say so and move on? And if he is not sick, why not have him directly address our people?

There has been too much speculation for the past 26 days. Can the President please put these speculations to rest? He should do so through the means we all know. What happened to the use of the good old microphone and a ZNBC video camera? Putting pictures on Facebook just won’t do.

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Suggested citation: Munshya, E., ‘On Facebook: President Sata and the absurdity of his rule through pictures’ Elias Munshya Blog (July 18, 2014) (available at http://www.eliasmunshya.org)

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This article appeared in the print edition of “Munshya wa Munshya” column on Friday, July 18 in Zambia’s leading independent newspaper the Zambia Daily Nation.

 

Judge Chali’s ruling in Brebner Changala v. Attorney General 2014

By Elias Munshya, M.Div., LLM (Candidate)

Human Rights activist Brebner Changala sought leave of the High Court of Zambia to commence judicial review proceedings into the Zambian cabinet’s failure to enquire into President Sata’s apparent ill-health.

High Court Judge Isaac Chali issued his ruling today, July 11 2014. He has denied Changala leave to proceed. Here is a of the judgment: Changala v. Attorney General 2014

We will provide an analysis of this ruling at a later stage.

Brebner Changala

Brebner Changala

 

 

Mumba Malila: A Supreme Court Justice for our time

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

At the age of 50, newly appointed Supreme Court Justice Mumba Malila is one of the youngest Zambians to have ascended to the apex of our courts. We should heartily congratulate him for this feat. Called to the Zambian bar in 1989, Malila’s twenty-plus years of experience as a lawyer place him in a very rare class. There could have been no one better qualified to take up this position than this gentleman. We should commend President Sata and all those concerned for having made this selection. With a swift ratification through parliament, there seems to have been consensus that Malila was the right person for the job of Supreme Court judge. I find several things that stand out with the choice of Malila.

Supreme Court of Zambia

Supreme Court of Zambia

Mumba Malila still has about 15 years to contribute to the life of the Supreme Court before he can consider obligatory retirement. In fact, while Zambian judges are constitutionally supposed to retire at 65 (Article 98[2]), the same constitution provides for a presidential retainment of a judge beyond retirement age. Since most Supreme Court judges do stay on after reaching the retirement age, Malila could possibly have more time at the court beyond 2030. This might help provide the stability for a court that sees far too many changes in judicial personnel. There is no doubt that the Zambian Supreme Court needs some stability. And this stability can best be achieved by hiring much younger and more vibrant persons. This relative young age also means that Malila begins his job with some level of the necessary independence and certain security of tenure. Since he will not be a subject of a judicial contract at least until after he reaches 65, he could serve far much more independently than his colleagues most of whom have already reached retirement age. The Zambian legal fraternity should expect no less independence from Malila. He takes on a huge role. He has huge expectations hoisted upon him.

Justice Mumba Malila SC

Justice Mumba Malila SC

As a Supreme Court judge, Malila should have the freedom and the necessary independence to promulgate human-rights friendly values in the developing jurisprudence of our nation. His most crucial contribution to our nation was when he served as the second-ever chairperson of the Human Rights Commission of Zambia (HRC). President Levy Mwanawasa appointed him to this role in 2004 replacing Justice Lombe Chibesakunda who was the inaugural chairperson (1997 to 2004). Previously, Malila had served mostly in commercial law areas. He also had a stint at the University of Zambia’s prestigious school of law. Malila handled his new 2004 role of defending Zambians’ human rights very well. His stint at HRC saw him get elected to become a vice-chairperson of the African Commission on Human and People’s Rights (serving from 2006 to 2011). He was, undoubtedly, a great advocate for the poor of Zambia. It is therefore, not surprising that President Mwanawasa later promoted Malila from chairperson of HRC, to becoming Attorney General of Zambia (AG) just a couple of years later. It was somewhat our expectation that Malila was going to take his human rights inspired worldview to his new role as Attorney General. But understandably, we all got disappointed.

It did appear like Malila had abandoned his faithfulness to protection of human rights. He started to defend even the most despicable of violations from the Government of Zambia (GRZ). As Attorney General, his major client had become the Government of Zambia and its executive. In fact, as AG he became an ex-officio member of the Zambian cabinet. The Malila who stood for human rights, had become, in my opinion, a part of successive governments which were oppressive of those rights.

We never hesitated to criticize Malila's service as Attorney General - Munshya

We never hesitated to criticize Malila’s service as Attorney General – Munshya

In our writings, both in the Zambia Daily Nation newspaper and on the www.eliasmunshya.org blog, we did express concern at some positions Malila had taken as Attorney General of Zambia. I felt that he had abandoned ordinary and basic human rights in his desire to defend his client, the GRZ, at all cost. For example, we expressed our concerns over his justification for the Public Order Act under the Michael Sata presidency. We expressed our uneasiness over his arguments in supporting the retention of Acting Chief Justice Lombe Chibesakunda, even after the Law Association of Zambia (LAZ) had expressed their discontent. We disagreed with the position he took in trivializing the genuine concerns that Dora Siliya and others had when a support staffer of the judiciary, called Terry Musonda, purported to issue a judicial judgment. We sharply criticized Malila’s court submissions on this matter. We differed with Malila on many points related to the above-enumerated items. In one of our articles, we had stated that Malila could easily make one of the worst Attorneys General Zambia has ever had. We offer no apologies for so holding at that time. Our criticism was a product of its time. Now however, we must have a relook at Mumba Malila.

Now that he has been appointed as Supreme Court judge, I believe that he will be able to exercise the necessary judicial and institutional freedom necessary for him to return to a more humane consciousness in our jurisprudence. In this new role, he would now be able to retain the independence previously unknown to him due to the precarious nature of his role as AG. His appointment to the Supreme Court provides for him some form of opportunity for penance. Additionally, as a judge, Malila can now freely practice what he wrote in the African Human Rights Law Journal (AHRLJ, 2012). In that journal, he provided a legal commentary on the case of Stanley Kangaipe and Another v Attorney General (2010). What is particularly interesting is the following quotation from his writing:

“…The judicial officer should not be tied to the strict letter of a legislative provision where matters canvassed before him concern important questions of human rights. This is particularly so where the law is manifestly unjust. The judge is urged to approach the provision purposively to place it in comport with the recognised human rights norms and standards. It is only then that the law can remain relevant to new challenges.”

Malila’s position here is consistent with eminent scholar, Professor Muna Ndulo’s argument that “the literal rule of legal interpretation should accede to the purposive rule where matters of human rights and the constitution are involved.”

As such, the greatest hope I have in Malila’s court appointment does not rest on his performance as Attorney General; rather it rests on what he could potentially bring to a Supreme Court deeply buried in jurisprudence less favorable to human rights. We await the emergence of human rights influenced jurisprudence from Mumba Malila, a new judge for a modern Zambia.

This article also appeared in the print version of the Zambia Daily Nation. Munshya wa Munshya column appears there every Friday.

This article also appeared in the print version of the Zambia Daily Nation. It appeared on Friday, 11 July 2014 Munshya wa Munshya column features there every Friday.

Mulenga Sata does satisfy the constitution to be presidential candidate in Zambia

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

In the interest of state unity and national sanity, Vice-President Guy Lindsay Scott should either be fired or severely reprimanded so that he stops making statements that can stoke national panic. There is the sense in which Scott is trying to do anything possible to fortify Wynter Kabimba as the heir apparent to the Patriotic Front (PF) throne. I see nothing wrong with his exercise of democratic liberties: Ici kalilwa pa nsaka musumba wa bwali. However, Scott should exercise restraint and responsibility since he has picked a side in the internal battles of succession. He must desist from icilande lande. We have all been concerned at the sentiments that Scott spews out. But what he said this week as quoted in a Patriotic Front newspaper, is very disturbing. Scott stated that Mulenga Sata, Given Lubinda as well as himself are disqualified to stand as President of Zambia.

To come to this unfortunate conclusion, Scott relied on the 1996 Constitution which, in Article 34 (3) (b), states that a person shall be qualified to be candidate for president of Zambia if “both his parents are citizens of Zambia by birth or descent.” Scott used this article to buttress the position that Mulenga Sata as well as himself and Given Lubinda cannot possibly satisfy this constitutional requirement. It is believed that Mulenga Sata’s mother is of Malawian origin while Given Lubinda is of mixed race. Lubinda famously refers himself as a “zayelo”. Notwithstanding those facts, I find the Vice-President Scott’s application of law to these facts to be legally flawed and politically ridiculous.

Mulenga Sata

Mulenga Sata satisfies Article 34(3)(b)

Zambia’s constitutional law comprises several elements. Two of these are relevant here. First, it comprises the written text itself. The second element comprises the rulings of the Supreme Court, if any, that touch on the meaning of the constitutional text itself. As such, if we are to discern what the text of the constitution actually means, we must look to the text itself, and then to the Supreme Court rulings that have interpreted that text. It is not enough to just read Article 34 (3) (b) and from there extrapolate that Mulenga Sata or Given Lubinda or Guy Scott are unqualified. If that were the case, there would be no need for law schools and consequently there would be no need for courts of law. The text that “both his parents are citizens of Zambia by birth or descent” is quite confusingly ambiguous. To resolve this we must ask ourselves: what does it mean to have “both parents being citizens of Zambia by birth or descent”?

President Sata with son Mulenga

President Sata with son Mulenga

The Supreme Court answered this question. This was in an election petition case in which President Frederick Chiluba was sued by Akashambatwa Mbikusita Lewanika and others after the 1996 elections. Facts of this case are poignant. After losing the 1996 elections, Lewanika and his colleagues petitioned Chiluba’s election by alleging that Chiluba did not meet Article 34 (3) (b) of the constitution since his father was not a “citizen of Zambia by birth or descent”. It is ironic that Chiluba became the first target of the law, which observers believe was originally passed to bar his nemesis Kenneth Kaunda, and his many colleagues of Malawian descent. Nevertheless, the Lewanika v. Chiluba case provided an opportunity for the courts to interpret this provision and help clarify this “parentage clause”. And true to common sense, the Supreme Court was not very pleased with this parentage clause. Had this clause been an ordinary statute, the judges were willing to struck it down. They couldn’t because it was a constitutional provision. The only thing they could do was to provide an interpretation. And until this interpretation is overruled by the Supreme Court itself, what the judges stated in Lewanika v. Chiluba remains law today and should govern how the law should apply to Mulenga Sata, Given Lubinda or even the muzungu Guy Scott himself. To state this simply, the current constitutional law in Zambia with regard to presidential eligibility is contained in Article 43(3)(b) of the constitution as well as in the case of Lewanika and others v. Chiluba.

First, In Lewanika v. Chiluba, the Supreme Court held that a popular insinuation that the presidency is intended for indigenous black Zambians is, for a lack of a better term, “nonsense.” Well that is not what the judges said. They would not use such a language. They put it in more polite terms. As far as the judges are concerned, 34(3)(b) cannot be interpreted as to mean that bazungus and ba zayelo are barred from the presidency. Bizarrely, the Supreme Court even went on to state that a Chinese baby adopted or present in Zambia before independence would perfectly satisfy 34(3)(b).

Second, the Supreme Court held that the requirement that parents must be Zambian citizens applies to those who were present in Zambia, or could have become Zambian at independence in 1964. Essentially, regardless of where Mulenga’s mother hailed from, if she was present in Zambia on 24 October 1964 or could have become Zambian on that date, she satisfies the requirement of being a Zambian by birth or descent. Additionally, if Given Lubinda holds a Green National Registration Card and either his parent is Zambian, he would satisfy 34(3)(b) too.

Third, what is even more critical in the Chiluba case was that the Supreme Court held that even if Chiluba’s father had been the Congolese-born Chabala Kafupi or the Mozambican-born Jim Zahare, it would not matter as long as these gentlemen were ordinarily resident in Zambia in 1964 or had “belonged to Northern Rhodesia”. Belonging to Northern Rhodesia was given a wide and generous interpretation covering indigenous tribes as well as Europeans or Chinese. Here is a quotation from Chief Justice Nglulube:

“…there were no Zambian citizens as such prior to independence and that Zambian citizenship and nationality only commenced on 24th October 1964. This assertion which we accept as technically and legally correct means that the constitutional provision regarding parents or anyone born prior to independence who are or were Zambian by birth or by descent can meaningfully only be construed as a reference to those who became Zambians on 24th October 1964 or who would, but for their prior death, have become Zambians on that day.”

If Guy Scott has surrendered his birthright to Kabimba he should find other reasons for justifying it rather than try to insinuate that Mulenga and Lubinda, bonafide citizens of our country, cannot possibly aspire to be president. If Zambians want Mulenga Sata to be president he should be welcome to aspire to this office. He certainly appears to be more decent than this unloved gentleman Scott is trying to shove under our throats.

Munshya wa Munshya

Munshya wa Munshya

When a Vice-President works in the dark: Guy Scott and the vacuum from Tel Aviv

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

Guy Lindsay Scott

Guy Lindsay Scott

Never in the short history of our republic have we had a vice-president who is as marginalised as Guy Lindsay Scott. Effectively, this Patriotic Front government has managed to reduce the vice-president of our republic to a non-entity. As if it is not enough that Scott has no clue of much of the stuff happening in a government in which he is number two, the Speaker of our parliament ordered him to release a statement about the whereabouts of President Sata. The people of Milenge would call this “uku tumfya”. Kutumfya to ask Scott to release a statement when the gentleman is in the dark, as always. The statement Scott released to parliament is notoriously honest, scandalously ironic and goes to prove just how out of the loop Scott has been. That Scott has not resigned in spite of this rampant snubbing deserves an analysis of its own. But it certainly takes a lot of steel to be a Veep in a cabinet, which shamefully ostracises you.

Scott supplemented his parliamentary statement with a British Broadcasting Corporation (BBC) interview he had on Wednesday June 25 2014. In this interview he accused a “small tribe in the south of Zambia” as the source of lies, innuendo and rumours about President Sata’s health and controversial visit to Tel Aviv. Without, dwelling too much on the demerits of his insult of this “small tribe”, it seems that Dr. Scott seems to project his own insignificance in the Patriotic Front on to others.

Guy Scott, in spite of having the Zambian constitution on his side, has never acted as president. Foremost, the job of any vice-president is to act as president in the absence of a president. Additionally, a Veep is supposed to manage an executive transition in the event of a vacancy in the office of president. As an acting president, a Veep is supposed to call for fresh elections within ninety days. It is quite fascinating though that Scott has never, at any time, fulfilled his constitutional job description. Sata always leaves power in the hands of Dr. Scott’s unelected juniors. This should hurt. An explanation has been cooked up, that tries to justify this disregard of procedure by stating that Scott cannot act as president because he is a muzungu. I have searched the constitution of our republic, and it does not bar a Whiteman from acting as president. The decision to sideline Scott within the realms of the don’t kubeba power structure does seem to me that it is informed by racism or tribalism. What else could explain this clear preference for black Zambians over a white one? The irony is that this very tribalism that victimizes Guy Scott is the same one he is projecting on to others when he characterises those wanting information about his boss as a “small tribe” from the south of Zambia. This is the problem of racism and tribalism: it turns its victims into vicious tribalists themselves. The only way to help Dr. Scott, perhaps, is for the PF government to stop its policy of a racist embargo on Scott solely because of the colour of his skin.

It was on Sunday, June 22 that Hon Mwansa Kapeya released a government statement explaining that President Sata had arrived in Israel at “the invitation of President Shimon Peres.” This was surprising because the trip had not been previously announced. In fact, Kapeya seemed to have released the statement only after rumours had surfaced about the whereabouts of President Sata. Kapeya stated that Sata left Zambia on Friday June 20. So between Friday and Sunday, there was no word from the government about Sata’s whereabouts. This was a serious lapse in the judgment of presidential handlers. An invitation of our president by the president of Israel should never be a secret.

Kapeya also stated that Zambia’s Honorary Consular-General Ms. Ronit Hershkovitz received President Sata. This should make this trip quite official and it buttresses the reasons why the Zambian public should have been informed of it in the first place. After this statement from Kapeya, social media went into overdrive particularly when it became apparent that Peres would in fact be in Washington, DC and not Tel Aviv to host Sata. The response from Kapeya was to threaten jail for those doubting Thomases. Kapeya enjoys jailing, it seems.

And then parliament intervened. It was a Member of Parliament from Southern Province who raised a point of order requesting the Speaker to direct the PF government to clarify this Sunday statement. This honour fell on the leader of government business in the house – the vice-president. Unsurprisingly, Dr Scott’s statement seems to have contradicted Kapeya’s central assertion:

Unfortunately, it is also asserted that he is doing this at the invitation of the Israeli President Mr Shimon Peres. This is misleading because President Sata is not there on a State Visit but on a Private Working Holiday…Sata will be combining sight-seeing, relaxation and business meetings.

Scott then concluded by stating that this is all he could say without entering “into the fantasy world of the Zambian social media and its necrophiliac correspondents and editors.” Obviously, Scott is very ruthless with words. He is of British heritage after all. It is sarcastic that he could label social media in these insulting words when his boss runs a very popular Facebook page that has nevertheless not been updated for weeks. Sata’s Facebook page came with a lot of cimwela and was a reliable source of ZNBC main news. Surprise, surprise, Guy Scott today calls social media “necrophiliac”.

After this statement in parliament BBC asked him about whether President Sata has cancer. He answered, “I can’t know because I am not his wife”. Asked further about the rumours about Sata’s health, Scott answered it is only a small tribe in the south stoking these rumours.

It makes no sense to discriminate against Guy Scott - Munshya

It makes no sense to discriminate against Guy Scott – Munshya

Guy Scott could be right, he has no idea about President Sata’s health. In fact, he has no idea about many things going on in government. The reason is not really because he is not Sata’s wife. But rather that, in spite of being a vice-president, he has been erroneously marginalised based on the colour of his skin. While Scott salutes his unelected subordinate Kabimba as acting president in Lusaka, I hope Scott’s boss enjoys his time in the Jewish state “sight-seeing, relaxing and having business meetings”. The Jewish state has confirmed that President Sata is in Israel at the invitation of President Peres. This is a welcome reprieve coming half a week later. Nevertheless, while all this is going on, I hope Scott will not think that the health status of President Sata is a manufactured rumour by a small tribe. If that were the case, all of us, will then be that small tribe. Scott should make no mistake, if this small tribe decide otherwise come 2016; he and his boss will never go sightseeing in Tel Aviv at taxpayers’ expenses. Never again.

When a smuggler acts as President: Wynter Kabimba and his men from Kenya

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

Personal sabotage should know its constraints. But just when you think that stuff cannot get any worse, that is when it usually does. It is one thing to make a small mistake, or perhaps, to misspeak once in a while. We are all human after all. But when you are part of a cabinet handling 13 million Zambians, you must be more careful and more measured, with the class of words you spit out of your mouth. It is no secret that the Patriotic Front (PF) government lacks basic diplomatic skill. Never in the history of our republic have we had such horrendous leaders in charge of our foreign diplomacy and national security. A foreign policy disaster is just being averted by some good leadership skills exhibited by the new minister of foreign affairs. He is trying his best. Harry Kalaba seems to have brought a little bit more stability and better class to the Ministry of Foreign Affairs. However, just when you think we are now having a good handle of foreign policy, someone just manages to sabotage the little effort being done. The story of Kabimba smuggling into Zambia, “Kenyans through Nakonde border” is so diplomatically obtuse that no one in their right mind could ever make such a reckless assertion implicating a foreign country in matters so sensitive.

It could not have come at a more difficult time for Kenya and her people. Kenya is facing multiple problems at the moment. Al-Shabaab is threatening to kill them. In Mpeketoni armed men stormed peaceful football fans and killed several. In the intelligence briefs that Sata should be receiving, he has probably been informed of the Kenyan situation. Kabimba should also be intelligent enough to know that Kenya currently is battling a barrage of both local and cross-border terrorism. We should all sympathise with the good people of Kenya during this difficult time.

President Sata and Secretary General  Kabimba

President Sata and Secretary General Kabimba

From such a background, it is strange, that Wynter Kabimba would growl about how he smuggled Kenyans into Zambia to do Parallel Voter Tabulation (PVT). No mention of another country by a senior cabinet member ever goes without diplomatic consequences. Kabimba’s statement is wrong, confusing and surprising to say the least. I have already explained that this testimony is diplomatically imprudent. How can our Minister of Justice implicate citizens of a sister nation, that he had smuggled them into Zambia to illegally participate in Zambian elections? Who says that? Who in their right mind would even string a sentence together that contains such diseased implications? To make matters worse, Kabimba even mentions that had Rupiah Banda won those elections, he would have sent him to jail as a result of this illegal activity.

Several politicians have jumped on this and are now claiming that Wynter probably did in fact use the Kenyans to manipulate elections to favour the Patriotic Front. For this, the opposition wants Wynter jailed. Opposition parties have a reason to read what they want from Wynter’s statement. But I doubt the veracity of Wynter’s statement. Kabimba seems to be a deeply troubled man coveting absolute power at all costs. Jail should be spared for people more talented than this.

When a smuggler acts as President

When a smuggler acts as President

It is a notorious fact that Wynter is fighting bruising succession battles within his party. He is trying to threaten those who do not want him at the helm of PF. In fact, some PF members are anti-Kabimba because they know him to be unpatriotic and wearisome. In the Eastern Province, a camp identified with Lameck Mangani, seems to have had little regard for Kabimba. For his part, Kabimba, made no qualms about what he really did feel about Mangani. Shortly after 2011 elections, Kabimba claimed quite audaciously that Mangani was not a member of the PF, but was just an impostor. Strangely enough, he went to anoint this impostor as parliamentary candidate, not once, but twice. After the fights, Mangani has now been fired.

It is during these succession wars and meetings in Chipata that Kabimba pulled a stunt only appropriate for primary school. He knows he lacks legitimacy in the eyes of many PF members. For some reason, he is not just registering as a good guy to replace Sata, either before or after 2016. There is just something that is putting Zambians off about Kabimba. It is to convince one of these doubting groups that Kabimba announced this infamous Kenyan connection.

In paraphrase he stated: “don’t mess with me”. “I am a very senior member of this party”. “ I single handedly made this party to win.” And then he goes offside, “I, in fact, hired Kenyans and smuggled them through Nakonde to do PVT and we won the elections.”

It appears like Kabimba will do anything to try and buy his own legitimacy. He will say anything. He will claim anything. He is willing to do anything. He does not seem to care about the implications of what he is saying, as long as it raises his own bruised profile within the PF. Anyone would know that Kabimba cannot and did not rig the 2011 elections. Certainly, no Kenyan ever rigged the 2011 elections on behalf of Kabimba. Neither Kabimba nor his Kenyan fictitious people have the capability to do so.

In case, Kabimba has forgotten. We need to remind him. The people of Zambia voted for one Michael Sata. Zambians from Limulunga to Milenge chose and gave Sata a strong mandate. Zambians thought that Sata would do them good. He would give them a constitution. They thought he would chase the Chinese invaders. They thought he would make the Kwacha stronger. They thought he would truly be in charge. To their surprise, they are having what in business we call “buyer’s remorse”. You buy something you wanted so badly, and then after you take it home, it disappoints. You then look back and think, “I should not have bought it in the first place”. This is where we are as a country with regard to Bo Chilufya Katongo.

In this buyer’s remorse, Kabimba should not mock Zambians by claiming that it is his Kenyans that brought us Michael Sata. We brought Sata on our own. And we do have a way to get rid of him in the 2016 election. In so doing, we do not need Kabimba’s fabrication. The only Kenyans I have seen, with some real capability over some Zambian men, wear traditional Maasai gear and stand on corners of Lusaka hawking stuff they promise will help, not with elections, but erections. Come 2016, they will be there to sell even more stuff to Zambian men and perhaps women. However, what they will not do is to rig any elections.

Zambians are experiencing buyer's remorse - Munshya

Zambians are experiencing buyer’s remorse – Munshya

Michael Sata’s Government of “Katwishi”

 E. Munshya, LLB (Hons), M.Div.

The nights and days are very cold this month of June. But in spite of this, the leaders of this country did not spare our people in Mindolo another brunt exercise of power. The people of Mindolo woke up, one night, to a colossal noise of bulldozers and graders tearing through the walls of what had made their homes. There was no mercy. There was no pity. And the misery was ruthless. It does seem, as expected, that the government cared less about the plight of our now homeless citizens. These citizens now have nowhere to lay their heads and no place to acquire the comfort of a warm roof. Days after this unfortunate incident, the ruling Patriotic Front, through its Copperbelt leadership, expressed comprehensive ignorance about what happened to the over 300 families of Mindolo. They claim “ta twaishibe” until the minute bulldozers were on the ground grinding down the brittle hedges around fragile homes of our people. We would be more concerned if this were an isolated incident. But unfortunately, denial has become the order of the day in both the ruling party and the government it is claiming to lead. From police brutality to the economy, President Sata’s government has most surely become a government of “katwishi”. Ask them any important question, and their answer comes from a choice of synonyms whose meaning is repugnant to human politesse: don’t kubeba, katwishi and nshishibe.

A few months ago, President Sata’s minister of agriculture had no idea that since his party came into power the price of ubunga had gone up by almost 100%. Typical of a reckless administration, the response from the honorable minister was that of total surprise and unsurprising surly indifference. He had no idea that the cost of ubunga is beyond the reach of many Zambians. One then wonders how this group of so called cabinet claim to be running a nation when they are not in touch with basic realities of how much Zambians are paying for staple food. I would be curious to find out what the minister cooks in his house, since he has no idea how much a bag of roller meal costs. May be he has an incessant supply of chicken and chips beautifully delivered at taxpayers expense. As if that was not enough, when the same gentleman visited cotton growers, he again expressed total surprise at the plight of cotton growers. He claimed “nshishibe”, “nshaishibe” or stuff related to that. Zambia must demand that leaders desist from this katwishi culture.

The leadership of “katwishi” has led us and is leading us into serious economic doldrums. The essence of katwishi finds itself manifested in a government, which has no idea, of how much money the mining sector generates each year. For example, the honorable minister of finance has no inkling of how much money KCM, First Quantum or Mopani make each year. With this obliviousness, the PF government cannot effectively assist the Zambia Revenue Authority (ZRA) to tax these companies. When citizens like Pamela Chisanga take up these issues and demand that Mopani pays, the government not infrequently pleads the “katwishi” doctrine. They claim to not know. Sadly, it seems, we have entrusted government to a bunch of persons who are so reckless as to fail to account for the income generated by our supreme natural resources. We need a cure from this “katwishi” syndrome.

Failing to effectively tax the mining conglomerates, cabinet secretary has this week, nevertheless, found an easy way out of this predicament by asking for “nchekelako” from all public universities and colleges. These colleges will now have to remit 60% of their school fee earnings to the ministry of finance. When it comes to mines, the PF gives a katwishi answer, but when it comes to helpless public colleges, it abruptly arouses to suck the littlest blood trickling from the veins of broke public colleges. Zambians should be unanimous to demand better planning from the PF government.

Government of Katwishi

Government of Katwishi

Another manifestation of katwishi concerns the soon-to-be established government airline. Honourable Yamfwa Mukanga has been quite consistent on this one. He claims that the PF government will not rest until a new government-run airline is established. He has since proclaimed that it will be launched on June 30th2014. Our government has run an airline before. It was called Zambia Airways (QZ). The reason why this airline went into liquidation was that it was a loss-making venture. It had become a personal carrier for Kenneth Kaunda and his UNIP benefactors. Without reasonable profits, Zambia Airways started to extricate taxpayers’ money to keep it in the air. In spite of this overwhelming evidence with regard to the failure of QZ, Mukanga in 2014 wants to add another expense for the taxpayers. I wonder what we shall call this airline. May be Katwishi Airline would be an appropriate name to memorialize President Sata’s popular reference of his cabinet as “useless”. The Zambian treasury is broke. Our kwacha is losing value. We basically have no money in the treasury. The government of katwishi has now mercilessly squandered the little dollars Dr. Rupiah Banda and Bo Situmbeko Musokotwane had left in the Zambian coffers. If we are to follow up on how Sata spent Rupiah Banda’s billions, we would get a hazy answer: katwishi. Since we are broke as a country, it does not make sense that we should be spending billions we do not have to buy planes for a loss-making venture.

Besides, the last time Hon. Mukanga was called upon to appoint a genuine board for a parastatal company, he appointed PF cadres to Zambia Railways. We have been there before. There is no assurance that Mukanga will handle this airline any differently from the way he has mishandled Zambia Railways. He will go on to appoint unqualified PF cadres to run Katwishi Airways and further squeeze the taxpayers. Nothing demonstrates economic folly than going back to the very practices and policies responsible for burying us in the sand of economic stagnation.

Isn’t it ridiculous that when Ms. Mutale Nalumango visited Isoka, and the police abused their power by hounding her out of there, the answer from the police command was “katwishi”? They claimed total ignorance of this abuse of power. Similarly, Nevers Mumba goes to Eastern Province, and the first thing the police do is conceitedly escort him out of Nyimba. When challenged to stop this thoughtless abuse of power, the police command pleaded total ignorance. They said “katwishi.”

Our country can do better. But in order to do so, we might need to deal with the katwishi syndrome. We can challenge this attitude now, and if that fails, we have a good shot at stopping it once and for all in 2016. The katwishi PF-government could think that they are getting away with this for now. But very soon, the Zambian people will show them who is boss. And when that day comes, the Zambian people will be decisive and flawless in rebuffing “katwishi” and all of its pretentious cousins.

On Trinity Western University’s Law School

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

Trinity Western University is a Christian evangelical school located in the province of British Columbia (Canada). Students at TWU are asked to sign a community covenant agreement that, among other things, asks students to refrain from “sexual immorality.” Sexual immorality is defined as “sex outside of marriage”. This includes “homosexual sex”. TWU defines marriage as between a man and a woman. TWU believes that it has the freedom of religion to teach its basic moral codes that define sexuality in this way. The lawyers in BC have voted to withhold recognition of a law degree obtained from TWU due to this community covenant. The vote took place on Tuesday, 10 June 2014. The main issue being argued by opponents of TWU law school is that the community covenant is non-constitutional as it discriminates against homosexual students. A detailed analysis of administrative and constitutional law arguments are beyond the purview of this article.

To date, the evangelical school has stated that it proscribes “homosexual conduct” without proscribing “homosexuals”. The principle being “loving the sinner”, but not the sin. Recently, though the Supreme Court of Canada in Whatcott did seem to discredit this view. While Whatcott was a human rights case, it remains to be seen how applicable it would be in the case of TWU. Judges in Whatcott stated that you cannot discriminate or hate people’s conduct if that conduct is one that could be done by a particular and identifiable group. According to Whatcott, you cannot hate the homosexual sin while claiming to love the homosexual because the so called homosexual sin can only be done by a particular identifiable group of people who are homosexuals. So can TWU discriminate in its covenant on the basis of “homosexual conduct”?

The Supreme Court of Canada is likely to side with TWU – Munshya

Before Whatcott, TWU in similar facts won a case in the Supreme Court of Canada when the teachers regulating agency in BC sought not to licence TWU teachers due to the community covenant. In that case the Supreme Court stated that in order for TWU graduates to be sanctioned, there has to be a clear discriminatory conduct from TWU graduates while they are in employment. You cannot say that a teacher from TWU will discriminate against homosexuals in a classroom simply because they signed a community covenant. Is the Supreme Court of Canada going to follow its own precedence? Or will it be controlled by the newer Whatcott ruling?

I am of the opinion that the Supreme Court is unlikely to rule against TWU law school. It will instead find a way to balance the TWU teachers’ case and Whatcott. In fact, they will have to narrow down the issue to the question of whether a lawyer who signs a community covenant at TWU becomes unsuitable to practice law.

Let me know what you think.

Justice Kenyatta Nyirenda of Malawi: Could his ruling shape Zambia’s 2016 vote?

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

There is no doubting that the 30th May “midnight” court ruling in Malawi has significant implications for Zambia. In 2016, Zambia is likely to face a somewhat contentious election. That being the case, we have a lot to learn from the way Malawi high court handled the electoral petition presided by Mr. Justice Kenyatta Nyirenda. I do have issues with Mr. Nyirenda’s legal reasoning. However, I also recognize that controversial as it may be, the ruling has some positive implications for Zambian courts.

Rupiah Banda visiting Malawi after the elections

Rupiah Banda visiting Malawi after the elections

Justice Kenyatta Nyirenda of the Malawi High Court was called upon to decide on at least three questions. First, he was to rule on whether to hold the Malawi Electoral Commission (MEC) in contempt. These contempt charges emanate from injunctions and counter-injunctions filed during the ballot count. Second, he was called to rule on whether the law did in fact give the MEC power to conduct a recount of electoral ballots to ascertain a correct picture of the outcome. If this second issue is answered in the affirmative, the next question was whether MEC could extend the period of recounting beyond the statutorily stipulated eight days. As fate would have it, the 8 days was supposed to elapse that Friday evening. The MEC and an opposition party, the Malawi Congress Party (MCP) had applied for this eight-day period to be extended so that a better recount of votes could be conducted.

Justice Nyirenda is a 1986 graduate of Chancellor College at the University of Malawi. President Joyce Banda appointed him as judge in October 2012. Before 2012, Nyirenda served a couple of years as Senior Legal Officer for the Southern Africa Development Community (SADC). He has also worked in legislative drafting in both Turks and Caicos Islands and Kenya.

The little background information I have provided is important in so far as it helps us to situate and contextualize the milieu from which Justice Nyirenda made his “midnight” ruling. Any court case is as good as the judge hearing it. From his reasoning we could ask better questions as to why he decided to reason a certain way.

To answer the first question, Judge Nyirenda discharged the contempt charges against the MEC. He correctly held that the applicants had not provided all the information needed to proceed with contempt hearings. The contempt charges for the MEC are quite unusual here because it does appear like the applicants had wanted to stop MEC commissioners from doing exactly what the law asks them to do: to count and recount votes after an election.

Judge Nyirenda obviously, did not want to hold MEC Commissioners in contempt and then worked backwards to find the reasons why he should not. This strategy did seem to work well. This should not come as a surprise. It would take unusual circumstances to hold a group such as the MEC commissioners in contempt of court. This is the same principle I saw working with Judge Eddie Sikazwe here in Zambia last week when he refused to cite Nevers Mumba and 45 other NEC members for contempt. Holding groups in contempt of court is too messy and judges are generally reluctant to do so.

On the second question, Justice Nyirenda answered in the affirmative. The MEC had the power to count and recount the votes. He interpreted the enabling legislation and the constitution. He then held that indeed counting and recounting of the ballots was within the perimeter of the MEC. This is a very important principle in administrative law. The power of an administrative body is primarily derived from the mothering statute.

Munshya wa Munshya

Munshya wa Munshya

Judge Nyirenda, however, left the most bizarre answer to the third question. If indeed the constitution and the statutes do empower the MEC to conduct a recount, can the MEC apply to court to have this period extended? He answered “no”. At issue here was the provision of the statute. Statute states that the MEC is supposed to announce the election results within “eight days” of an election. Since the last day of the election was May 22, the eight days were going to elapse on May 30. In ruling that the results had to be released, the judge relied on the “literal rule” of legislative interpretation. He held that since the statute says election results should be announced in eight days, there was nothing he could do as a judge to extend that timeline. He claimed that the MEC was bound to follow this timeline and announce. The judge then made a philosophical point, “As a judge my role is not to make law, but to interpret it.”

Does Kenyatta ruling impact Zambia?

Does Kenyatta’s ruling impact Zambia?

Judge Nyirenda’s holding on this third question is controversial for several reasons. First, he does not acknowledge the fact that the MEC had spent much of the eight days in court rather than in counting the votes. The judge could still have discredited some of that time so that the eight-day deadline begins to count only after his court ruling on May 30. Second, Judge Nyirenda’s ruling would lead to absurd outcomes. What good is this power to recount the vote, if it had to be done by May 30, the very day that he was delivering the ruling? Isn’t it obvious that it would be self-defeating for the MEC to be given broad power and yet have it restricted to just one hour? Third, Judge Nyirenda, as a skilled legal drafter himself, exploits the “literal rule” and relies on it to emphasize that the results should be announced within the stipulated 8-days. Perhaps, Judge Nyirenda needed to be reminded that the literal rule is hardly the best tool to use when interpreting text that has constitutional implications. The MEC was not asking for time to manufacture results. It was asking for time to verify the results. It should not take rocket science to know that the activity of verification might need a little more time, especially in the atmosphere as adversarial as that particular election.

Notwithstanding, the contentious issues concerning the third element. The positive aspect of this ruling is the fact that the court did not bow to pressure from a sitting president. The court showed independence and a clear commitment to follow the “letter of the law”. I have my own doubts about Justice Nyirenda’s reasoning. However, what I do not doubt is that Zambian judges might just find his courage insightful when their turn comes in 2016, or perhaps before that.