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Challenges, weaknesses, and lapses: Beyond the sacking of Wynter Kabimba

 E. Munshya, LLB (Hons), M.Div.

In the 50 years of our independence, what really sets us apart as a people is the ability to reflect on issues after we have done our celebrations. Perhaps, after we have downed bottles of Kachasu and emptied tins of champagne, we really do come round to look at issues more critically. After we recover from Katubi and Katata, we always ask ourselves the critical question: “why were we celebrating in the first place”? Had it not been for this analytical character of our people, Zambia would have long disappeared from the face of the earth. No politician can hold Zambians hostage. In fact, no amount of the celebrations of even the most popular among our politicians can bewitch the democratic character of our people. We always come around.

Wynter is gone. Let's celebrate over Katubi & Katata.

Wynter is gone. Let’s celebrate over Katubi & Katata.

A few days ago, if not a week ago, Zambians from all around the country, at least from the towns and villages we received reports from, had taken to potholed streets to celebrate the fall of Wynter Kabimba. There was a festive atmosphere among many that, somehow, the fall of Kabimba had given the nation a new break, a new dawn. Some Patriotic Front (PF) cadres in Kaoma under the influence of Shake Shake stated that they were happy with the fall of Kabimba because “he was the main hindrance to their development.” They mused that, Kabimba had brought them a lot of poverty, and as such, his firing will now truly bring “more money in their pockets”. In Kasama, GBM also led a march of PF cadres thanking President Sata for firing Wynter. Again, PF cadres danced and drank. A week could be a long time in Zambian politics. The same GBM who had been disowned by the PF structures in Kasama was now leading the same structures in disowning Kabimba. Some reports claim that the fall of Kabimba was celebrated in the same way, the PF electoral win in 2011 was celebrated: people spontaneously taking to the streets to drink, dance and cause mayhem in the hope that finally an answer had come. But did an answer really come? Or it is still the old story of people taking to the streets to celebrate a political milestone that eventually leaves them hungrier than before.

Days after celebrations of the fall of Wynter, several Zambians are asking themselves: “why were we celebrating in the first place?” In any case, how did the firing of Wynter come about? It is these questions that perhaps could bring some sobriety to a nation drunk on the good news of Kabimba’s firing. To me the dismissal of Wynter has not really resolved the main issues facing our country. In fact, contrary to the Kaoma cadres, the canning of Wynter will not lead to more money in their pockets. They are likely to continue suffering just like they were suffering under Wynter as Secretary General of the Patriotic Front. The reason is simple: the fall of Wynter has not fundamentally altered the character or the nature of the ruling Patriotic Front (PF) as a party that has no plan for the development of Zambia. It is ridiculous to expect anymore from the PF. It has no program to fight corruption. The PF has borrowed more money than any government in the history of Zambia. Rupiah Banda left reserves in the coffers that Sata and his PF have squandered on activities that do very little to help the nation develop. Having inherited Rupiah Banda’s Formula One road development plans, the PF have gone overboard to grant themselves contracts through the Road Development Agency (RDA), which unfortunately operates from President Sata’s office at State House.

With the firing of Wynter, President Sata has undoubtedly gotten rid of a very contentious and divisive figure in Zambian politics. But without a clear departure from the politics that made Wynter in the first place, I doubt if there will be real change in the way Sata and the PF handle issues of governance. As a demonstration of the fact that it will be business as usual, President Sata went on to personally appoint a new Secretary General of PF in the same way he appointed the guy he had just fired. Such actions are repugnant to democracy. Unless we change templates in Zambia, we are likely to be facing the same issues over and over again. That which is a problem with a template can only be changed if we reformed not only the persons, but also the templates themselves. We cannot resolve systemic deficiencies simply by changing people around. This is why, no amount of firings or sackings can bring about the change we need if the structures, templates and systems remain the same.

Going beyond Wynter has several implications. Zambians need answers as to how they are being governed. It does seems like a private newspaper that is an ally to both President Sata and Wynter Kabimba appears to be confirming Zambians’ suspicion. For its part the newspaper has gone to state that the firing of Wynter might have to do with President Sata’s “challenges, weaknesses, lapses”. The newspaper has not elaborated on this, but has further warned that if anything happened to President Sata, it will be the fault of they who engineered Wynter’s sacking. In the midst of this confusion and uncertainly, it is incumbent upon Zambians to demand answers from State House as to what these challenges, weaknesses and lapses are considering that they have led to the dismissal of a guy we all thought was the emissary of the president.

Munshya wa Munshya

Munshya wa Munshya

Zambians, as stated above, need to take seriously efforts at reforming not just the people, but also the structures and the templates of our government. This is more reason why we need to pay attention to the constitution making process. I believe that the constitution making process is an integral activity to the good governance of Zambia. While I do not believe that a good constitution by itself will guarantee good governance, I believe that a good constitution could help us a great deal in putting structures in place for good governance. What is really shocking out of the Kabimba saga is just how an unelected person managed to climb up to the highest echelons of power. Indeed, as mentioned above, without a clear reform to our systems, another person after the image and likeness of Kabimba could easily do the same thing.

Today Wynter Kabimba is gone. However, in our celebrations of his fall, we must be mindful of the fact that the struggle for a better Zambia continues. Problems in our country are bigger than Kabimba. As such, we need to go beyond him and capture the real issues stealing the prosperity of our people. This we must do even if we are faced with “challenges, weaknesses and lapses”.

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Suggested Citation:

Munshya, Elias. (2014). “Challenges, weaknesses, lapses: Beyond the sacking of Wynter Kabimba”. Elias Munshya Blog (www.eliasmunshya.org) (12 September 2014)

Chibamba Kanyama’s Controversy: A Review of “Business Values for our Time”

Munshya wa Munshya

Business Values for our Time is an over 300 paged book authored by consultant and entrepreneur Chibamba Kanyama. It has four parts spread across twenty-one chapters. Part one of the book focuses on Zambian tribal cultures as well as Indian and Jewish cultural ethics. In part two, the book deals with mainly mechanics and dynamics of investments, loans, borrowing culture and most interestingly chapter nine deals with the question of managing relatives. In part three, the book takes the stories of various Zambian entrepreneurs and derives various theories and values that have made them successful. In part four, Mr. Kanyama discusses various issues to do with attributes and culture for the business entrepreneur.

Chibamba Kanyama

Chibamba Kanyama

This book has generated a lot of discussion and controversy in academic as well as business and cultural circles. Following the advice of the author himself when answering some of his critics, I waited patiently to acquire a copy of my own which I could read and verify for myself whether the criticism levelled against the book are fair or not. I ordered the book through http://www.ibuy.co.zm, and after a total payment of about $57.00 my book was couriered to me.

The Book’s Virtues

This book has undoubtedly several virtues. First it is a very personal book. Mr. Kanyama takes his personal, professional and even family life to teach and illustrate important business principles and values that are so critical to the success of the entrepreneurial spirit among Zambians. It is these personal stories, and illustrations that make the book so clearly relevant to all. The reader would see himself in the stories about credit, loans and the everyday struggles of having to finance small-scale to medium scale business.

Second this book is motivational. While Mr. Kanyama has rightly and frankly lambasted some bad-for-business qualities such as laziness, after reading this book you get motivated to begin working on your dreams. In his own words he says, “I want all those who have gone through the pages of this book to start making those critical decisions in their lives. I urge everyone to investigate and assess the various business opportunities that are before them.” This is exactly how I felt when I finished reading this monumental work.

Third, this book as its name suggests is truly loaded with business wisdom. By addressing issues of loans and how they can affect business, Mr. Kanyama pinpoints an important element which confronts most businesses and most of our people today. In this book, Mr. Kanyama teaches the role, the dangers and indeed the blessing of borrowing. He goes into principles of how one can assess his business financial needs and the needed due diligence necessary before approaching a lender for credit.

Fourth, this book is great in that it translates what business students learn in class into everyday language. Mr. Kanyama takes some of the language he used from years of study in economics and corporate finance and translates them into everyday language that ordinary folks may understand. In this book, principles of finance, entrepreneurship, and to some extent corporate accountability are given their needed bridge into the hearts and minds of ordinary folks.

Fifth, the book goes against the current in the sense that it identifies and attacks some elements within African culture that make us perpetually dependent and poor. He aptly addresses matters of extended families and how an unbridled cultural desire to please all family members may be bad for good business. Mr. Kanyama mentions how many businesses in Zambia have failed simply because of excessive and perpetual dependency from extended family structures.

Sixth, the book is also biographical in nature. In addition to its discussion of Mr. Chibamba Kanyama’s own family background, the book also mentions the likes of Mr. Bwalya Chiti, Mr. David Nama, Mr. Costain Chilala, and many other Zambian entrepreneurs. The stories of all these people show the effect that values of integrity, foresight, vision, courage and resilience have on success. There is nothing that is as inspiring as reading about the everyday struggles and triumphs of successful people. Generally in Zambia, very few successful people write about their stories. There is a dearth of biography in our country. And as such, a book such as this one helps to fill that gap.

The Book’s Controversies

Notwithstanding these virtues that Mr. Chibamba Kanyama’s book has, it is rather unfortunate that it equally contains controversial notions. These controversies do have the potential to make an otherwise good book seem flawed. I must confess that in its entirety, this is a good book and every Zambian should buy and read it, but it does contain some concepts that are not only erroneous but also prejudiced. Most of these controversial ideas are found in Part One of the book. I wish these controversies were small or minimal, but unfortunately they are not. As such, my suggestion to Mr. Chibamba Kanyama is that he removes these controversial passages from the future editions of this great book.

These controversies have unfortunately become the mainstay of various book reviews. This has created unnecessary distractions from the most important aspects that Mr. Kanyama may have intended for this book.

Part one is essentially, a part of the book where Mr. Chibamba Kanyama has gone to take some cultural characteristics of various cultures in order to derive out of these cultures principles and ethics of business. The part has four chapters: the first chapter deals with what Mr. Kanyama calls a focus on Zambian culture, whereas chapter two deals with Indian business values and influence, in chapter three he then addresses what he calls the “levers of Jewish Success”. Chapter four, a personal family story of Kanyama’s is good and it is here that his book should have started from.

I must now then turn to these ideas and try to, as much as possible, give reasons why Part One of “Business Values for Our Time” is flawed and why it should be removed from the future editions.

Chapter one of the book focussing on Zambian tribes, assumes that there are 73 tribes which can be narrowed down to seven tribes. This is simply not the case at all. The many Zambian tribes cannot be narrowed down to seven tribes. The seven languages on radio were not done to narrow down the tribes to seven. It was more of a political decision than clear cultural or tribal considerations. Further, it is equally inaccurate to portray that some Zambian tribes are offshoots of some bigger tribes. Mr. Kanyama may have needed to shed further light on this point. What he writes here is tantamount to assuming that because much of Luapula for example is Bemba speaking, the Luapulans are therefore offshoots of the Bemba tribe. This is just like thinking that the Scots, the Irish and the Welsh are the offshoots of the English simply because they use the English language. But why should this matter? It matters because it is this seed of thought that Mr. Kanyama uses to classify, categorize and then label the tribes. Additionally, already in a book about business values and entrepreneurship the reader gets bogged down into rebutting these inaccuracies instead of focussing on important business principles. Chapters one to three are unnecessary distractions.

The book, in both Chapter One and Chapter Two, makes several claims based on prejudice. For example, when discussing the Bembas Mr. Kanyama claims that the Bembas are risk takers by nature who are good at networking skills and pro-activity. The difficulty here is that these qualities attributed to the Bembas could be equally attributed to some other individuals in Zambia. Additionally, without clear controlled studies of how many people and how many tribes have invested in the stock market it is wild for Mr. Kanyama to claim that “the Bemba have eagerly participated in the stock market, and most of them have offshore investments”. Where did he get this information?

He also claims that the Tongas are the most accommodating peoples simply because most white farmers have settled in Southern Province more than any other province. I thought most white farmers could have settled in Southern Province due to several other factors such as availability of water, good climate, fertile soils and proximity to Lusaka. About the Lozis, he labels them as a people who “exert a lot of authority with margins of domination and superiority”. According to him, they are proud and do demean other cultures and tribes. Really?

On the Ngonis, he labels them as fair, tenacious and trustworthy peoples. He makes a quite wild insinuation that once you enter into a business with a Ngoni, you do not need to spend money on contracts, because they are trustworthy people. The best way to approach these matters is not to attribute such moral qualities to a tribe but to mention that there are some among the Ngonis that are trustworthy just as there are some that are villains. Trustworthiness is a personal quality and not a tribal quality. Further he paints the Ngonis as fair people in the way they treat their neighbours. Mr. Kanyama even attempts to use history to boulder this fact. But historically, it is clear that as settlers the Ngonis were not benevolent people sharing resources with their neighbours. When they marched from the Zulu empire to modern day Zambia and Tanzania the Ngonis were not in thoughtful business negotiations, they were about war! And the ChiKunda peoples received the brunt of their brutality.

After going on, making all these unsubstantiated prejudicial claims he reserves the bitterest analysis for the Luvales. I must mention here that when the North-westerners met in Solwezi a few months ago and derided Chibamba Kanyama, I could see the reason why. He links the Luvale tribe with witchcraft and even ritual murders. He claims that, “ritual murders are always associated with business interests of either Asian or Luvale entrepreneurs.” I am again forced to ask the question, where did Mr. Kanyama get the “always” from? Additionally, he paints the Luvales as people lacking academic sophistication. Granted that he praises them as a people with “cultural values of honesty, integrity, love and hard work”, the damage has already been done by his prejudiced view of a people.

On the Indians in chapter two, he praises their hard work and family commitments. But he nevertheless finds opportunity to paint them as flouters of labour regulations and even tax evaders. Immediately following this observation he then puts a disclaimer and says, while tax evasion should not be generalized as descriptive of all Indians it is nevertheless the way they are perceived by the government. It is not right to paint a people in that light. Mr. Kanyama should have been more discerning and sensitive to a people. There are several prejudices and innuendos that fly by in society, but once you publish them, they are given the force of authority. In this case regardless of the moral ineptitude of Indian businesses, publishing such innuendos as fact is not fair.

Why Every Zambian Should Read It!

Munshya wa Munshya

Munshya wa Munshya

I am sad that in reviewing, Mr. Chibamba Kanyama’s book I have spent a lot of time, critiquing the detriments of Part One. This should have been avoided. Mr. Kanyama should see that this Part One has had a very negative effective on his otherwise great book. He should not have included it in the book in the first place. It is demeaning, outlandish and prejudicial to say the least. As such, Mr. Kanyama’s book should start at page 43. Everything before page 43 does not help bolster his arguments for Business Values for our Time. Except for what lies from page 1 to page 43, I greatly recommend the rest of the book to all Zambians.

NOTE: This book review was originally published in 2010. (c) Munshya wa Munshya 2010, 2013

Zambia and The Living Tree of Democracy

 By Munshya wa Munshya

 Elias MunshyaNothing shows the character of a president, or any person for that matter, than the battles she chooses to fight. The saying that action speaks louder than words becomes even more real for a nation, in the type of undertakings that a president decides to employ. There can be no doubt that both action and inaction could show us without doubt where a president’s vision for the country lay. This is even more serious in our country. Faced with bitter division within his own ruling party, the President has decided to cast a blind eye on those divisions and instead, has concentrated on victimizing citizens. These citizens’ only crime is the decision to stand up for the country and exercise their democratic liberties. Just the other day, President Sata, to the embarrassment of our intelligence community, issued a written statement in which he claimed that the intelligence has infiltrated Hakainde Hichilema. We may never know the extent of that infiltration, but following the Chief Jumbe precedence, it could include “sikiriti ku bed.” This is Michael Sata’s priority and we get it.

In President Sata’s threatening phone call to Joy FM, we are further introduced to the priorities of this president. In that phone call we are shown what this president regards as national security priorities: the political death of Nevers Mumba. The fighting between GBM and Kabimba by far poses the greatest threat to our national security and to our democracy. GBM is no ordinary character; he is the country’s minister of defense. He is the third most powerful of cabinet peers. His public spats with Kabimba cannot be trivial matters. In fact, Nevers Mumba’s vociferations on radio pale in comparison with the security implications brought by the “cipaye no lamwina” going on in the PF. And the president’s inaction over GBM and Kabimba while making the greatest noise against HH and Mumba goes to just show that the cobra has marked its victims.

That being the case, the older I grow, the more I realize that us mortals may never know what transpires to champions of democracy once they acquire power and begin breathing the air supplied only to the chosen five at Plot One. To what could we attribute the complete transformation that our presidents go through immediately after they are ushered into the Nkwazi House? What happened to KK after independence? Which virus eats up the democratic decency of people like Dr. Frederick Chiluba who after fathering our democracy ten years later wanted to suffocate it? And now in 2013, when our nation is confronted with the infighting within the ruling Patriotic Front, our president decides to look the other way and to bury his head in the sands of Lealui hoping that after 90 days, it will all go away. Instead of confronting the evil in PF, the president decides to attack democracy.

However, once a people have had the opportunity to get their taste buds tantalized by the beautiful aroma coming from the fruits yielded by a tree of democracy, they do everything they can to defend that tree. The fabric of our republic changed fundamentally in 1991. The people of Zambia resolved to replace a dictatorship that once was styled “one-party participatory democracy” with a democracy allowing plural politics and with it plural views and opinions. After having tasted this beauty and after having touched this greatness, Zambians are willing to defend this democracy to the bitter end. Pafwa abantu, pashala bantu.

As stated above, in 2001 Chiluba got almost corrupted by the same dictatorship he had risen to fight. It is the ordinary Zambians who stopped what could have been a resurgence of tyranny. In that year, Zambians from all walks of life came together and demanded that Chiluba and his lieutenant Michael Sata stop the ridiculous bid to run for a third term. Amazingly, at a rally in Lusaka even the vice-president of our nation joined expelled Members of Parliament and members of the civil society to demand that Chiluba does not asphyxiate democracy.

In 2011, again the people of Zambia exercised their freedoms. Lozis, Bembas, urban dwellers as well as the general workers in our country came together and formed perhaps one of the most significant political coalitions to usher in the presidency of one Michael Chilufya Sata. Through the “Don’t Kubeba” coalition Sata became only the second to Chiluba to beat an incumbent. This is no small feat. It is a significant event. But the true heroes of the 2011 story are ordinary Zambians, both the educated elite of Omelo Mumba Road and the poor street kids that sleep under the pavements of Rhodes Park. Ordinary Zambians put a stop to what they perceived to have been an unproductive presidency of Rupiah Banda.

However, like many governments before it, a bout of political dementia and historical psychosis has suddenly afflicted the PF government. Frequently, gentlemen like Wynter Kabimba are now standing on a podium to proclaim, quite thoughtlessly I must say, that the PF is going to rule for decades to come, for a 100 years minimum. Kabimba has even got the bravery, people of Zambia, to claim that your country is now on its way back to a one-party system. I should be the last person to fault the honorable comrade for so thinking. However, I should be humble to acknowledge that many things are unlawful, but political silliness is not one of them. Quite to the shock and awe of the honorable comrade it is only the sober people of Kafulafuta and Msanzala who had to remind him that his wishes were just that: wishes of a very capable gentleman intoxicated by the Kachasu of political power. And indeed, due to the tyrannical nature of the PF party itself, the cadres are making the honorable comrade’s continued stay as Secretary untenable. Kabimba has lost in both ways: the people of Katete rejected his philosophy and now even his own cadres have armed themselves with pangas against him. It is difficult to imagine how quickly 100 years in power can change to an ultimatum to leave the Patriotic Front.

Kabimba aside, it should be concerning correspondingly that President Sata last week called Joy FM radio to ask the presenter to cancel a radio at which opposition leader Nevers Mumba was guest. His Excellency too needs to be reminded. Zambians have drunk the cup of democracy. They have found it to be too sweet. And having found this democracy too sweet, they are refusing to let go. They are saying quite eloquently, democracy yali lowa!

Nevers Mumba might have used many colorful words he wanted to use during that radio broadcast. But that is the beauty of our democracy: to be able to hold Michael Sata accountable and let the people of Zambia know that some of the promises Sata made were, borrowing from Zagaze and Pilato, “bufi”. And of course, our people do not go begging at State House for a handout of freedoms. If Sata wants to take this path, then he will have to top-up on talk time and get ready to make many calls: Zambia’s tree of democracy is alive and well.

When a Cobra Spits at Crocodiles: Why President Sata Shouldn’t Fight the “Bashi Lubemba”

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

Now that the Chitimukulu issue has resurfaced, a recap of what I wrote in August!

Originally posted on Elias Munshya LLB (Hons)., MA., M.Div.:

Elias Munshya, LLB (Hons), MA, Mdiv.

The Issue

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

After some hesitation, Henry Sosala succumbed to presidential pressure and conceded to President Sata’s demands. He resigned from the Mwambaship and apologized to President Sata for the embarrassment he had caused him.[ii] On the other hand, the Bemba traditional elders were quite displeased with what they perceived to be President Sata’s interference with their traditional matters. In a meeting held with President…

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Justice on Contract: Judges, the President & the Future of our Democracy

 By E. Munshya wa Munshya

Ours has been a robust judiciary. Ours has been a robust commitment to the rule of law. Had it not been for the gallantry of our judges, we could not have achieved the democratic strands we are enjoying today. Beginning with the time of the one-party state, judges sporadically stood up to Kaunda. For example, judges stopped KK when he fired a teacher without recourse to the Teaching Service Commission. It was clear in that 1973 ruling that Kaunda may have been chief of our state, but that did not give him license to be the chief employer of civil servants. Today, our jurisprudence continues to grow from this seminal ruling. Based on this ruling, the Lusaka High Court recently ruled President Sata offside when he purported to “retire” policemen who had not otherwise reached retirement age. Sata, simply, did not have the power to do so.

At the time that Zambia was transitioning back to plural politics it is judges who helped the new democratic movement get the protection it needed to grow. Again, after attaining our plural democracy, it is judges again who continued to play a huge role as guardians of the rule of law. When Chiluba and his cohorts – Michael Sata and Miyanda to be exact – found great solace in the barbaric use of the Public Order Act, it is gallant judges who held that some sections of this law should be ruled as unconstitutional (see cases of Mulundika & Resident Doctors). Further, when Chiluba, Sata and Miyanda amended the 1996 constitution to exclude the likes of Kaunda based on the “parentage” clause; again our Supreme Court came back and provided a more sensible interpretation of what it meant to have Zambian parents (see Lewanika & Others v. Chiluba). It has been my position, following guidance from the Lewanika case, that even a Zambian like Guy Scott does satisfy the requirements of the “parentage clause”.

Perhaps one of the most far reaching demonstrations of judicial independence happened when Deputy Chief Justice Ireen Mambilima held, in the case of Miyanda v Attorney General, that the President of Zambia is not above the law, but rather is a subject of our constitution. According to Mambilima, the Public Order Act itself has placed the president within statutory contemplation. Justice Kabuka relied on this ruling in the case of Kabimba v. Kachingwe (MMD).

That being the case, there has been some concerns, with whether the judges are independent enough. During the Rupiah Banda presidency, it is John Sangwa SC who took government to court alleging that Ernest Sakala should be relieved of his duty as Chief Justice since he had reached retirement age. Justice Mutuna when handling the matter acknowledged that indeed Sakala had reached retirement age, but nevertheless the President as Chief of State still had reserve power to keep Sakala in office. At that time Sakala was serving under a contract from President Banda.

In 2013, the same questions raised by Sangwa have now resurfaced. But these questions are further protracted by the fact that over half of the current Supreme Court is passed retirement age and is therefore on serving on employment contracts amenable only to the president of our republic. These contracts should be a cause of concern to the extent that they might appear to undermine judicial independence.

Perhaps, all this could have gone on unnoticed had it not been for the case of Mutuna & Others. What is remarkable, one observer noted, is that four of the majority judges in the case of Mutuna are all on contract. The three judges, Muyovwe, Mwanamwambwa & Chibomba, who dissented are not on contract and are below the retirement age. Could the Supreme Court have ruled any differently had those judges not been on contract? Did the contracts play a role in making Wanki, Mumba, Chibesakunda, and Phiri rule for the State? As I have stated previously in this column, the majority’s holding that “President Sata is the authority on everything”, is perhaps one of the most dubious doctrines to ever come out of our Supreme Court in recent times.

Indeed, borrowing from what I wrote last week, only a restraint of law can keep a peeping tom from peering through Jumbe’s bedroom. The proposition that a president can listen into people’s moans and shrieks should be a concern to all. It is the law and the judges who can put such abuse of power under control. However, to a large extent, our judges have been exemplary and the holding in the Mutuna case should not in any way reflect on all judges. Mutuna case was obviously badly decided and it remains upon the next court to perhaps find a way to reverse that ruling.

For now, perhaps, the president can continue being DJ and listen more to others’ private affairs. He is the authority on “everything” after all. But we should make no mistake; there is no end to what human debauchery can lead to. Today it is Jumbe and who knows the next person to be on radio Plot One? Indeed, while in the bedroom, Zambians better begin to learn how to smile because they could just be on red brick camera.

Contracts for judges are problematic because they erode at least three fundamental elements of judicial independence: security of tenure, institutional independence and financial security. Each of these is discussed in turn. First, Judges should have security of tenure. A judge should be so secure in the job as to know that he will still have his job tomorrow regardless of what he holds in a ruling. The fact that 4 judges in our Supreme Court have no security of tenure and their contract could be terminated at will is a concern.

Second, institutional independence means that the judiciary and indeed the judges should be free from administrative interference from the other organs of state. It is quite ironic that the chief administrator of the judiciary in our current constitution still remains the president. He is the one who even appoints acting Chief Justices or an acting deputy chief justice for administrative convenience. Quite ironic that when both Sakala and Chirwa were away from Zambia for about 2 weeks, President Sata appointed justices to act in these capacities. Nothing demonstrates lack of independence than the fact that even in these simple administrative duties it is the president who has to find temporary principals. Zambia has been talking about institutional independence for a long time, it is perhaps time to act on this talk and let the judiciary run its own affairs. Speaker Matibini runs parliament without recourse to Sata, why should it be any different for the judiciary?

The last element concerns money. Judges should not only have security of tenure, they should also have security of “salary”. To me this does not really simply deal with how much they get, but rather that the State should not interfere with whatever ngwee that a judge is entitled to. As such, reports that President Sata unilaterally froze a little pay that Justice Denis Chirwa earns should be a concern to all. Such actions send shivers across the judges. Judges are human and they have mouths to feed too. We should give them their fair pay.  Sata should forthwith desist from such crass interference.

Leaving all the disputes aside with the eligibility of current acting Chief Justice. I believe that with security of tenure, financial security and institutional independence, we could be on our way to make our judiciary stronger and our Zambia a better republic.

Nevers Sekwila Mumba, Insincerely Yours: My Open Letter to the MMD President

Nevers Sekwila MumbaDear Nevers Sekwila Mumba:

I must register my disappointment at the manner you Dr. Mumba have behaved towards His Excellency the President of our Republic, His Excellency Mr. Michael Chilufya Sata, SC and Supreme Commander of our armed forces. Dr. Mumba what even enrages me more is the fact that even after His Excellency called your host on Joy FM to cancel the show, you defied him and went on with your program. That was seriously so wrong. I should write this letter to you with a very heavy heart.

But before I deal with the substantive issues you discussed on that radio show, let me first address the fact that our president even called you in the first place. You see, you wasted the president’s time. Don’t you know that His Excellency’s time is very precious? In fact, you cost the taxpayers a lot of money by letting His Excellency even make the call to Joy FM. Mr. President is a very busy man. He should not be subjected to acting for nonentities such as yourself. You see, by phoning Joy FM the president missed out on listening into some bedrooms across this country. This is exactly what he had told Chief Jumbe during the opening of the House of Chiefs. Mr. President said that he is such a powerful person who can and does listen to everything Jumbe whispers including the shrieks in his bedroom. Now with all these responsibilities, Dr. Mumba you decided to act irresponsibly so that the president would waste his valued time on a phone call to you.

That phone call also wasted his time that he could have spent in the red brick laboratory reviewing the DNA of some of your opposition colleagues. You see just like he had mentioned in Chipata, the president has data that Hichilema and the Reverend Father Bwalya are “abana ba mufigololo”. You know how he knew that? It is because, he is supposed to spend time, reviewing DNA that proves paternity. And so if you yourself, think that you are clever, the red brick boys have already taken a sample and very soon an announcement will be made in Malambo that you too perhaps are just like Bwalya or Hichilema. Now your actions that day, took the president away from working on this important national assignment.

Please Dr. Mumba never do this again. Never should you ever let the president waste his time like this. That day, he missed his duties in the red brick laboratory and of course in the red brick studio.

After having dealt with why you are such a time waster. I must now deal with the substantive issues you raised in that Joy FM interview. In fact, everything you said in that radio has been restated in the letter you sent to our president. Dr. Mumba you should know that the President is the authority on everything. This is what his relative Bo Phillis Lombe said about him. If you read the judgment she rendered in the case of Bo Mutuna and his friends, she stated very clearly that President Sata is the authority on everything. She also stated that Micheal Sata has information and receives information on everything and in fact, everybody. Do you know what this means?

I don’t even for a moment expect you to know what this means.  But let me help you understand it. It means that President Sata is not only the commander in chief of our soldiers, but he is also the commander in chief of mathematics, calculus, statistics and arithmetic. In fact, he is the authority on time, days and hours. It means that everything has no meaning except that which he assigns to it.

You are complaining about the constitution. You see, president Sata, just like he had promised, has delivered a people driven constitution within 90 days. That constitution is all over the country. In fact, it has been translated in all the mother tongues of Zambia. I know you have not seen it because you allegedly suffer from a serious bout of psychosis. On the other hand, the President does not suffer from any of these big diseases you allegedly lumped on him. He has evidence of this constitution, which was delivered within 90 days!

The president has also increased salaries of civil servants by 300% or is it 200%. How dare, do you say that our president is a liar? The civil servants went to the bank and, in fact, found that their salaries increased by about 10pin or is it 30pin. But you see, this does not mean that the president is a liar, all it means is that 300% changes meaning when it is touched by the commander in chief of arithmetic. And so civil servants are now smiling with this unprecedented increase in their salaries. I have heard that some nurses want to protest. But these nurses do not know how to count. If they knew how to count, or if they cared to learn it from the Chief Statistician himself, they would have come to the same conclusion that a salary increase of 300% would only add 10 pin or 30 pin to their previous salaries. Is the president a liar? I would say no Dr. Mumba. The president is just a good magician.

Dr. Mumba you accuse the president of having built nothing. Are you not seeing him every day commissioning already finished roads within 90 days? Go to Chawama, to Kuku and to Chinsali. The roads are there. The roads in fact, have been built in 90 days. With all this evidence only psychosis can make a person think otherwise. Go to all these places and you will find the finished roads, paved and sparkling clean as a result of the hard work of His Majesty, (ooops His Excellency). It really does not matter that in fact, none of these roads have been done in actual fact, and it does not matter that actually most of these roads were built and planned for by Rupiah Banda. You see again, President Sata is the authority on everything. If you want to see a new road go to him and he will grace you with the ability to see. Honestly, not even his ministers are convinced of all this development. This is why the other day he called them together and lambasted them for not seeing the good roads he alone has built for them. Quite unsurprisingly, it is only after they went to State House after that meeting, that suddenly, the brave ministers realized that in fact, yes, the nation is prospering again. I think you too, Mr. former vice-president need to visit State House and then you will see!

About the Euro Bond? You see, Dr. Mumba, the economic prowess of His Excellency is being demonstrated by his ability to get us deep into kaloba. Actually forget about that debt hole you helped us recover from when you were vice-president. President Sata has a marvelous plan for us. He will dig us deep into debt with the shylocks of New York. Imagine, this has never happened before. When his government wanted to ask for some kaloba in New York, the investors from there in fact quadrupled the amount of kaloba we could get. We went for $750,000,000 but they were willing to give us $7,000,000,000 of kaloba. Count the zeros. These zeros are dollars, American dollar un-rebased. This Dr. Mumba is good economic mismanagement. How then do you say President Sata is a leader of confusion? Is this confusion? Does confusion look like this? In fact, for your own misinformation, some of this kaloba has already been used up to pay civil servants the promised 300% increment, which in actual fact is only a 30pin increment. This is not foolishness as you supposed, it is known as good economic mis-management.

Lastly, but not least, you should know something. His Majesty (oops again, His Excellency) has a great plan for Zambia. He has imported free labour from China. He has installed riffraffs in his party and he has in fact, changed your slogan from Zambia shall be saved to something to the effect that Zambia shall be shamed.

After writing you this letter, I could not differentiate reality from fantasy. And so I had to ask the Drug Enforcement Commission (DEC) to give me some of that stuff they had stolen from Brebner Changala’s bedroom. May be Vermox will help me.

Insincerely Yours,

Munshya wa Munshya

Kuya Bebele: Why Lombe Chibesakunda should Vacate the Office of Chief Justice

 By Munshya wa Munshya

That acting Chief Justice of Zambia, Lombe Chibesakunda should resign has been clearly enunciated by very distinguished bodies and reputed personalities in Zambia.  In fact, no other issue has captured considerable coverage in the Zambian media, in the past weeks, than this Chibesakunda saga. Civil society, as well as the Law Association of Zambia, has made it articulately clear that it is a constitutional anomaly to have her ladyship continue to serve as Chief Justice. Since democracy recurrently requires a multiplicity of voices, I wish to add to this debate. If Justice Chibesakunda wishes to save a little bit of her self-respect, she must in good faith resign forthwith and save the nation, the president, and our parliament from further shame, ridicule and embarrassment.

Kuya bebele. I do believe that Justice Chibesakunda should go.

The basic principle of separation of powers within our system of government does envision three arms of government that together form the basic institutions of our democracy. To foster this separation of powers, the head of the judiciary, a chief justice, is supposed to be substantively appointed by the president and this appointment should then be subject to parliamentary approval. It is article 93 (1) of the constitution that states thus: “The Chief Justice and Deputy Chief Justice shall, subject to ratification by the National Assembly, be appointed by the President.” That being the case, no one can take up the position of Chief Justice without parliamentary ratification.

In the case of Justice Chibesakunda, she has not been ratified by parliament and on that basis alone; she must recuse herself from further exercising the functions of that office. Indeed, the process of ratification itself does impose upon our system specific procedures that must be met before one could assume the role of chief justice.

There has been argument by some, that regardless of what the law says, the president of the republic of Zambia still retains the power to appoint anyone to act as chief justice. This theory is both right and wrong. I must return to this later in the article. It is true that the president of Zambia, as chief of state, does have some discretionary power as the reserve of all state power (Article 33 of the Constitution of Zambia). This, however, does not mean that the president is above law and neither does it mean that the president could ignore the constitution with impunity. Article 37 of the constitution in fact, provides for impeachment of a president who abrogates the constitution of Zambia. Further, as was held in the case of Miyanda v Attorney General, Madam Justice Mambilima was on firm ground to state, “the president is not above the law.” The president is a creature of the constitution and not its benefactor (Article 1 s.3 of the Constitution of Zambia).

Article 44 of the constitution casts presidential functions in the following manner: “(1) As the Head of the State, the President shall perform with dignity and leadership all acts necessary or expedient for, or reasonably incidental to, the discharge of the executive functions of government subject to the overriding terms of this Constitution and the Laws of Zambia which he is constitutionally obliged to protect, administer and execute.”

Perhaps it should be fair, at this juncture, to compare and contrast at least two issues to do with retired Chief justices, that of former chief justice Ernest Sakala and the present temporary successor Chibesakunda. Justice Mutuna ruled very eloquently, in the case in which John Sangwa sought to challenge the validity of Ernest Sakala’s continued stay at the helm of the judiciary. According to Sangwa, Sakala was over the prescribed age limit and as such he could not validly hold the substantive office of Chief Justice. After the hearing, Justice Mutuna did rule, and rightly so, that the President as chief of state does have some discretionary and reserve powers to appoint a person like Sakala to remain in office beyond the prescribed age.

Having regard to Mutuna’s ruling in the Sangwa v. Attorney General & Ernest Sakala, the issue therefore is to ask whether the two cases are sufficiently similar as to allow the Ernest Sakala case to provide guidance to the present issue. Sakala’s issues should be distinguished from Chibesakunda’s, however. At law, precedence is valued only to the extent that reasons the court applied in one case could be sufficiently, applied to the other case. Ernest Sakala was the substantive chief justice and he attained retirement age while he was in office. With Justice Chibesakunda, she has come to the office after attaining the age of retirement.

Sakala was ratified by parliament. Chibesakunda was not ratified by parliament. In fact, the subcommittee of the Zambian parliament refused, twice, to even consider taking this matter to the whole house. Undeniably, without parliamentary approval there is no way we could draw parallels between Sakala and Chibesakunda.Chibesakunda’s ascension to the throne of Chief Justice does appear to have been a deliberate effort by the Michael Sata executive to influence the judiciary. This never seemed to have been the case with Ernest Sakala. Indeed, the rhetoric of the ruling party’s secretary general has only gone to affirm the position that the Patriotic Front was looking for a more pleasant face in the judiciary and when they found Chibesakunda, their prayers were answered. Indeed Chibesakunda has not disappointed. She might go into history as one of the most politically biased chief justices Zambia has ever had. She even beats Kaunda’s patron justices of the second republic. In fact, going by the recent decisions she has presided over, it is clear that Chibesakunda is biased and her legal reasoning is not based on law but on other political considerations.

Two important events from the judiciary should be concerning. In the now infamous Supreme Court case of Mutuna & Others v. Attorney General (2013), the ratio decidendi of that case was so outrageous that it should be assigned to the dustbin of legal history. What is so unusual about the Mutuna case was that Chibesakunda with her majority invented doctrines that should be repugnant to a democratic nation. Not since the times of Kaunda did we ever have a Supreme Court that reaffirmed presidential power that rightfully belongs to the age of dinosaurs. For example, it was the opinion of her majority that the president of Zambia is “the authority on everything”. This statement is not only unnecessary but also legally problematic. It is from this assumption that she decided that since President Sata is the authority on everything, he then must have the power to fire judges based on “information the president receives as head of state”. The dissenting opinion of Justice Elizabeth Muyovwe rightly castigated such reasoning.

The other event that is disturbing concerns the famous press statement given by a spokesperson of the judiciary. That statement was not only so outrageous in its defiance of acceptable legal order, but it was unashamedly excessive. Since that statement is a subject of litigation before Justice Mulenga, I should not go into detail, but it suffices to mention that the so-called statement from the judiciary has left a bitter taste. It is bitterer than the herb “umunsokansoka”.

The Law Association of Zambia equally castigated the statement and urged the nation to completely ignore it. Dora Siliya for her part is asking the High Court to review Terry Musonda’s press statement, as it was not given “ex-cathedra.” Terry Musonda lacked the official capacity of a court of law to make pronouncements on issues that can only be decided by a duly constituted court of our republic. Zambia has no other court within the judiciary, than the duly constituted courts of law presided by ratified judges and not support staff like Terry Musonda. We remain to see how Justice Mulenga will handle this issue.

For now, we must be clear about one thing: a chief justice who causes a non-judicial officer to issue statements should not be a subject of our admiration but should be a predicate of our scorn. This is why, it should be affirmed very eloquently that Madam Chibesakunda should resign.

Does president Sata then still reserve the power to appoint anyone he wishes to act as Chief Justice. Indeed, as I have mentioned above, the president does have some of that power within reasonable limits. The President might only appoint a non-qualifying chief justice in extremely rare circumstances. For example, if the Martians were to invade Zambia and abduct 790 of the 800 lawyers in Zambia, a president might be justified to act in the interest of the state by appointing a dinosaur to be an acting Chief Justice. Again that should be done in very rare circumstances, though. That being the case, presently, there is just no reason why in view of such abundance in legal talent the President should insist on having a retired justice to be Chief Justice. Indeed, if the President so wishes, he would not struggle to find that Zambia’s Deputy Chief Justice Ireen Mambilima is more than willing and ready to become the Chief Justice. If not, we still have hundreds of talent to pull from. For all we know, the 800 lawyers on LAZ’s list are still very much around and the Martians have not abducted them at all.

Further, Justice Chibesakunda’s continued stay at the helm of the judiciary is so absurd since it appears contradictory to her own ratio decidendi in the Mutuna case. In the Mutuna case, she mentioned that judges should have guards. She did sound like she was very committed to have judges follow the law. That being the case, why isn’t she following the law herself by recusing herself from this position? She has not been ratified. She is passed the retirement age. Why then does she insist on staying on? The saying of “kuya bebele” could not have come at no better time than this. Justice Chibesakunda should go.

Justice Chibesakunda has been “acting” for over a year now. Using a purely administrative argument, no one should act in a position for so long. Borrowing from the Executive, article 38 of the Zambian constitution does not even envisage an acting president for a period exceeding 90-days. That being the case, it is equally absurd that we should subject the judiciary to a temporary head who has been “acting” for over a year. Since she has not been ratified into the position and additionally, since she doesn’t qualify for it, the normal thing to do is to resign and ask His Excellency to find another person to appoint. As I have mentioned above, if it is a relative the president is concerned about, he has an abundance of young vibrant abepwa, abafyala, abeshikulu, ba cufi banabo, and many more bululus whom he could take to parliament for ratification. It does not have to be Madam Justice Chibesakunda.

It is quite pathetic that a justice who has dedicated herself to the Zambian cause should come to this end. Civil society has rejected her. The Law Association of Zambia have said no. Kuya bebele is what everyone is saying. I just hope that madam justice Chibesakunda will resign before she turns the whole judiciary into a kangaroo court.

ImageKuya bebele!