Category Archives: Zambian Law

One Zambia One Nation: The need for a new narrative

 E. Munshya, LLB (Hons), M.Div.

President Kenneth Kaunda and King Mwanawina III

President Kenneth Kaunda and King Mwanawina III

After 50 years of independence there is need for Zambians to begin reimagining the myth of their nation. The story of our nation needs to be told in a fresh and new light. Each time a nation or indeed an individual celebrates an anniversary; there is a great temptation and pressure to focus only on the past rather than on the future. This is the temptation we risk falling for, this 24th October 2014. From 1964, there is a possibility that we will begin looking back over the years and let nostalgia pervert our ability to imagine a future ahead of us. We could spend all of the time and effort at seeking to recover the fossils hoping to get inspiration from our past. Regardless of how glorious the past has been the people of Zambia should use the past as a springboard to a new imagination of a future. This is not to mean that we should dishonor the past, but rather that we must use the past only as a backdrop of inspiration for tomorrow. The nation that was not has now been, for 50 years. It cannot return to the past, but it can only spring to its future. To do so, we will need courageous imagination to foster a unity needed to face the challenges of tomorrow rather than the ambiance of yesterday.

We need to reimagine our education system. For any nation to prosper, it needs an educated citizenry. This education must be in areas that our economy needs most: science and technology. The government and the business sectors should begin investing in those educational programs that offer a promise for the future. No doubt, we have had a proliferation of universities in the past ten years. This is only but a beginning. Government now needs to put in place a qualifications framework of some sort so that quality is assured. Zambia right now is not facing a university problem more than it is facing a university “quality” problem. Regardless of how many new universities we build in Chinsali, without quality we would only be digressing and not progressing. Fifty years after independence, it becomes necessary to establish a national qualifications framework that could both accredit and regulate the universities around the country. Additionally, it is no secret that most of the universities have gone into the humanities. I have no problems with humanities. I have read humanities at both universities and seminaries. I love humanities. But Zambia also needs sciences and technology. Government and the private sector can invest in higher education that produces suitable graduates in the sciences and technology. It is unacceptable that fifty years after independence we still cannot design a single “fosholo” to help mine copper in Kansanshi. With a new imagination and new incentives, I have no doubt that a future Zambia can create the higher educational framework for the good of our common tomorrow.

We also need to reimagine and reevaluate our dependence on copper. It is rather shocking that fifty years after our so called independence our country still depends upon copper for its economic survival. Now copper is a finite resource, it is a diminishing resource. The problem with such dependence is that our economy oscillates according to the performance of copper in Beijing and London. We must face the honest assessment that, Zambia has no economic future without economic diversification. Regardless of how glorious the past of copper has been, we have to reimagine a future of Zambia that is less dependent upon copper. With fertile land that is the envy of millions and water so abundant as to quench the thirst of billions, we have no justifiable excuse to fail in agriculture. We need a fresh imagination that takes our minds off copper to other things such as agriculture to develop our country.

In terms of politics, we have made giant steps since 1964. We have had five presidents. We have done mature transitions from one leader to another. We have a judiciary that is relatively independent. We have a somewhat workable constitution. And in the little areas it is not working, we are making effort at changing that which needs to change in this 1991 constitution. We are a talking people, and we do not take kindly to governments that want to desecrate our liberty to speak and to assemble. That being the case, we must continue in the same spirit to safeguard our democracy. The greatest defenders of any democracy are the ordinary men and women around the country. Democracy belongs to the people. As such, the people of Milenge as well as Mwinilunga should continue participating in the democratic process. We should continue to vote and make our voices heard. It is our democracy. It is our country and we have a duty to hold leaders accountable. We must build on our democratic success over the last fifty years to build a more robust democracy for the next fifty years and beyond.

On the eve of Zambia's Independence - 23 October 1964

On the eve of Zambia’s Independence – 23 October 1964

Zambia is not necessarily our heritage more than it is our destiny. Heritage connects you to the past, but destiny connects you to the future. Our republic should connect us not only to our past, but also to our future. Zambia should be a collection of people united in their imagination of the future rather than a morgue of people united only by a common past. A past is limited, while a future has unlimited. Together, we are creating a destiny called Zambia. Each day is an opportunity to build a nation and to help imagine that place we desire for ourselves and for our children. Destiny looks at other Zambians and collaborates with them in building a future for the people of Nakonde as well as Chirundu. It is not enough to share a common past, what we need now is a commitment to share a common future. This has implications. Tribalism can easily be defeated if we all decided to focus more on the destiny we are trying to create rather than on the heritage whose past we may not all share. To create a future for Zambia means we have to go beyond the limits of our own tribes to capture out of other tribes a common dream for Zambia. Destiny means we should find it repugnant for a cabinet to feature only one tribe or region. Destiny is welcome of others and this is the welcome we need for Zambia and her future. A Zambia at fifty should be accepting of a Vice-President Guy Scott not just by the colour of his skin, but rather by the content of his passion for our nation. When we condemn tribalism, we should also condemn racism and the evil that comes with it. Zambia belongs to all. It belongs to the Bantu, the Ng’uni, the Luba-Lunda migrants, the Mfecane raiders, the Bantu Botatwe, the Makololo invaders as well as the descendants of the Europeans. It belongs to all.

To a nation committed to a bright future, we should all say happy 50th Anniversary, Zambia.

Bwezani Nafuti: Should Dr. Rupiah Banda return to active politics?

E. Munshya, LLB, M.Div.

Dr. Rupiah Banda has all the reasons in the whole world to be angry and to be outraged at the way the party that defeated him in the 2011 polls is handling national affairs. The economy is in crisis. National security is now just a wiretap away. Our country has lost its international profile. Banda’s successor “niba katekela mubwendo.” Even our own parliament now does not want private media to cover President Sata due to “security concerns”. Rupiah Banda planned all the little infrastructure development we are seeing today, but the PF is behaving as if it was their genius that made it. In many ways, the PF government has failed miserably and any leader such as Rupiah Banda should be furious! I support him on this.

To be outraged is one thing, however. What really matters is what Banda can do about this outrage. Interestingly, there is a growing chorus of some “concerned Zambians”, who are calling for him to make a political comeback. For his part, President Rupiah Banda has not curtailed that debate. He has instead castigated those opposed to Zambians calling for his return. Being a democrat that he is, President Banda is asking for a robust debate to continue about whether the Zambian people want him to return or not. Indeed, no one in Zambia should be stopped from expressing their opinion to call back Banda to deliver us from this clueless don’t kubeba. But since Banda wants to hear from Zambians, I must add my voice. It would be a bad move for himself, for the MMD and for Zambia to have Rupiah Banda return back to the political fray.

Rupiah Banda’s 2011-concession speech is perhaps one of Zambia’s greatest political speeches. I would put it on the same level as President Kaunda’s Independence speech and Chiluba’ inaugural address. In that conceding speech, Rupiah Banda asked for peace to prevail in the nation. He counseled the winners to treat the defeated with dignity. He then encouraged the young people to take over the leadership of the country. He also availed himself to provide guidance and counsel to the nation. A few months after that loss, Banda relinquished his MMD presidency and the party found a new leader. In confirming, Banda’s foresight, the MMD found a younger leader: Nevers Mumba.

Dr. Rupiah Bwezani Banda

Dr. Rupiah Bwezani Banda

But as expected, Nevers’ leadership was not going to be the magic wand for the MMD. It is ridiculous to suggest that a new MMD president would restore the popularity and clout of the MMD overnight. This is where the anti-Nevers cartel in the MMD got it wrong. Mumba or any other person could not have possibly redeemed MMD that easily. The MMD had lost an important election. It now is in opposition. Its stature as a ruling party had been diminished. To rebuild it needed patience, unity and support from all the concerned. The problem with rumours of President Banda’s return is the destabilizing effect it has on the MMD and on the leadership of Nevers Mumba. It does not matter that Rupiah Banda could be adopted by a different party. Just the idea of his return is enough to destabilize the MMD and Zambian democracy.

Rupiah Banda still has huge clout in the MMD. This should be expected. To date, MMD campaign materials being used in by-elections still bear his portrait. In the East, where MMD is the strongest, it is clear that the party remains strong there due to RB’s influence. It is for this reason that Banda should exercise wisdom and leadership by stopping those calling for his return, as it would subvert the party.

If Banda wants to remain true to what he said in 2011, he should support the younger people instead of allowing himself to get into the political ring again. Not that I have anything against age, no one is born old, but we should clearly remind ourselves that if RB stood in 2016 he would be around 80-years old. Nevertheless, the MMD under younger leaders now looks like it can rebuild. After the election of Muhabi Lungu as national secretary, it now seems like the MMD can get reorganized.

Eastern province is in many ways a democratic hub of Zambia. The East does some amazing things to our democracy. The converse could also be true that democracy can be killed much more easily in the East. Just when we had the East as a great UNIP stronghold after the 1991 elections, it was Kenneth Kaunda’s continued interference in the affairs of UNIP that led to its great instability in the East. Had UNIP continued with its strong showing in the East, Chiluba could not have had the majority he had in 1996 to reverse much of our democratic gains. But Kaunda insisted on a comeback that hurt UNIP and hurt Zambia in the long run. I am afraid that, just was the case with Kaunda, Banda’s desire to return does have the potential to destabilize the MMD in the East and in essence kill the MMD.

If Banda were to decide to return, I have no doubt that the East would support him. Nevertheless, even if the East supported him, he is likely to lose an internal MMD poll if he were to challenge incumbent Mumba. The reason is simple: the internal party polls in Zambia never support challengers of the incumbents. Party polls in Zambia are never free and fair. Mumba is likely to beat Banda if the MMD went to polls. But the political fallout is likely to damage the MMD brand further.

For the MMD to survive, it needs the Eastern Province. Without the East, the MMD will crash. Every political party in Zambia must be a regional party first before it becomes a countrywide party. It is from regions that any party in Zambia can then plot its national growth and appeal. The PF’s region is clear for all to see, Luapula and other Bemba speaking regions. Sata does not need to campaign in Luapula. For the UPND it is the South. Hakainde gets huge votes there. For the MMD it has happened ironically, that it is the East. It is this East support that Rupiah Banda must direct towards the current MMD president.

The accusations against Nevers are quite unfounded. No one in MMD was going to redeem this party. This party must start afresh. It needs support. It needs sympathy. It now looks like it has a brilliant duo heading it: Nevers and Muhabi. They need to be given a chance. If Rupiah wants admiration, he must channel his political clout properly for the good of the party and the nation.

Rupiah Banda's return will hurt and divide the MMD - Munshya wa Munshya

Rupiah Banda’s return will hurt and divide the MMD – Munshya wa Munshya

Muhabi Lungu was a UNIP firebrand when Kenneth Kaunda led to its downfall in 1995. It would be terrible to see Muhabi Lungu preside over the death of another party, the MMD, with the infighting that could rock the nation, if Rupiah Banda were to challenge Nevers. The young Muhabi should not become an undertaker in the death of political parties in Zambia. He must be given the chance to serve the MMD and work with Nevers to help the MMD rise from its ashes. For the sake of the MMD and Zambia, it would be a bad idea for Dr. Rupiah Banda to tolerate the idea that he could be President of Zambia again.

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Suggested Citation: Munshya, Elias. (2014). “Bwezani Nafuti: should Dr. Rupiah Banda return to active politics?” Elias Munshya blog. (www.eliasmunshya.org)

The King of Zambia: Mwanawina III and the making of a new nation

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

This republic we now call Zambia is a product of several currents. As we celebrate 50 years of its existence we must look at all the stories that could help us navigate through these currents so that we can learn from history and not repeat mistakes from that history. Fifty years after our independence, there is no issue that could potentially divide our nation more than the contentious Barotseland Agreement of 1964 (BA 64). Nevertheless, as contentious as it may be, we would be doing a great disservice to ourselves if we do not confront this story. The BA 64 and the role of King Mwanawina III in the formation of our nation are important Zambian stories. Discussions on the BA 64 have dwelt on its formation in 1964 and its abrogation months after independence. However, in order for us to understand the role, if any, it played in the making of our nation, we must situate it within its own context and milieu.

King Mwanawina III

King Mwanawina III

The Supreme Court in the case of Lewanika and Others v Chiluba (1998) paid some cursory attention to the fact that the homeland we now call Zambia pooled several territories administered by the British prior to 1924. Northwestern Rhodesia, Barotseland and Northeastern Rhodesia combined to form the British Protectorate of Northern Rhodesia administered by the British Colonial Office. In the treaty-making system, the British South African Company (BSAC) identified powerful chiefs, signed agreements with them and then used those treaties as the basis for colonialism. By far, one of the most powerful empires in what would become Zambia was Lewanika, whose Lozi Empire covered parts of present Namibia, Angola and Zambia prior to 1924. As such, it was quite natural that the BSAC’s desire to legitimize its colonial crusade involved signing some kind of a treaty with Lewanika. By the time the British Crown commenced its direct rule over Northern Rhodesia in 1924, Lewanika’s Kingdom was somewhat definable. During the struggle for independence, Mwanawina III was the Litunga of Barotseland. He reigned from 1948 to 1968.

President Kenneth Kaunda and King Mwanawina III

President Kenneth Kaunda and King Mwanawina III

Both before and after 1924, when the British ruled over a unified Northern Rhodesia, the Litunga maintained some level of autonomy. This autonomy, however, was a two-edged sword. A Litunga would be influential only to the extent that the British permitted him to. As such, the Litunga’s power was simply an extension of British rule. Even though the British had early treaties with the Litunga, the only thing that seems to matter for them was that they had a dominant king whom they were “protecting”. The subtlest effect of this “protection”, however, had to do with how the British extended this protection to the rest of the Rhodesian territories. While the less powerful kings and traditional rulers still exerted some moderate influence over their areas, Litunga was more formidable over his areas due to the direct consent of the British. This became the dominant political perception of Litungas and the times they lived in. It was certainly so, for Mwanawina III who reigned during the difficult time of the dawn of independence. Barotseland subjects, had by the 1950s come to perceive and begrudge their king not as a liberator but as a collaborator with the British. At one time, the White settlers of Southern Rhodesia were even considering a federation of sorts involving Rhodesia, Barotseland and Katanga. Rumours of such maneuvers were damaging to the standing of Mwanawina III among his people. This became one issue Kenneth Kaunda exploited during the 1964 elections.

Sensing the changing tide for independence in what would later be called the Republic of Zambia, the British decided to side-step King Mwanawina III and gave in to popular demands for native direct rule for all territories in Northern Rhodesia including Barotseland. By the 1950s when Kaunda led the splinter group away from the ANC, there was clear consensus that it was he and his more radical group that would best epitomise and actualise the dream of freedom for all blacks in Northern Rhodesia. Indeed, in the elections of the Barotse National Council itself, Kaunda’s UNIP soundly defeated political parties that were aligned to the ruling aristocracy of the Barotse nation.

However, the greatest historical mistake Kaunda ever committed was misinterpreting the meaning of this win in Barotseland. The reason why the BA 64 will continue to haunt Zambia is closely connected to the way UNIP’s win was taken both by the British and by Kaunda himself. For sure, Kaunda interpreted his win in Barotseland as a sign that the people were solidly behind him to push through an independent nation while ignoring Litunga Mwanawina III. The British too, fearful of UNIP and its mandate were reluctant to side with Mwanawina. Indeed, the king of the once great Lozi Empire was now in a corner. He had no political capital and his British backers had abandoned him. It seems Kaunda had the support of the people of Barotseland, but Mwanawina III still had the throne. A compromise had to be forced. It is this compromise, which would continue to haunt the new nation 50 years after its independence.

The story of Zambia is incomplete without Mwanawina III - Munshya

The story of Zambia is incomplete without Mwanawina III – Munshya

What can we learn from the context surrounding the Barotse negotiations? First, Kaunda should have treated Mwanawina III more like a partner than as a minor. Truly, Kaunda had the people, but it was naïve of him to push through some changes without having recourse to Mwanawina III’s genuine concerns. Second, KK should have known that winning elections in the Barotse National Council did not mean that the people of Barotseland had decided to do away with their king or their customs. Third, KK should have been more humble after winning and he should have used that leverage to come up with an agreement that was more acceptable to the Litunga and through him, the people of Barotseland. Perhaps KK should have been open to the idea of either federalising or even prevailing upon the British to grant Mwanawina III some boosted autonomy. It has been 50 years since the BA 64 and yet the question of Barotseland still haunts our young nation. Nevertheless, King Mwanawina III remains one of the important figures in Zambia’s history. He was a king, in Zambia.

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Suggested citation:

Munshya, Elias (2014). The King of Zambia: Mwanawina III and the making of a new nation. Elias Munshya blog (www.eliasmunshya.org) (October 12 2014).

Sacking Wynter Kabimba: Implications for Sata’s presidency

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

When Wynter Kabimba got implicated in the oil scandal in 2012, we called upon President Sata to suspend him so that the Anti-Corruption Commission (ACC) could freely investigate the matter. Sata said no! In 2013, when Wynter stated that the PF would rule for over 100 years, we expressed our concerns at the dictatorial and undemocratic tendencies that started to develop in him. Sata looked the other way. When Wynter stated that Zambians wanted to return to a one party state we gave our opinion. We stated that Wynter was getting it wrong on democracy. We again called upon Sata to fire him. But Sata instead, promoted Wynter and left him to act as President. When in June 2014, Wynter claimed that he had smuggled Kenyans through Nakonde to rig the 2011 elections in Sata’s favour, we said his statement was a falsehood and absolute nonsense. By this time, Sata was nowhere to be seen. He had gone AWOL. We said what we said and we still do believe that Wynter Kabimba’s politics were repugnant to democracy. We stand by what we said about Wynter, but there is more that must be added: Wynter was only but a minute symptom of a grander disease. Firing him does not heal the disease; it only postpones it to another day.

Kabimba and Sata - the good days

Kabimba and Sata – the good days

Kabimba has been fired not as a way to stump out corruption in Sata’s crooked government, but rather to entrench corruption. Ever since President Sata assumed power, he has never acted, not even once, to stump-out corruption. Instead, Sata has both tolerated and exacerbated corruption. Sata has not acted on several allegations of corruption involving his officials. A publication has shown us evidence of questionable deposits into the bank account of one of Sata’s many sons. Sata has not acted to stop the rampant corrupt dealings involving the Road Development Agency (RDA) that operates from State House. Several ruling party stalwarts have illicit RDA contracts. GBM is alleged to have been a principal supplier of goods and services to the Ministry of Defence, the same ministry he served as minister. In 2011, at the onset of the don’t kubeba government, Apollo Enterprises, a company belonging to Finance Minister Alexander Chikwanda was, without tender, given the contract to rehabilitate State House. Chikwanda never declared interest. Chikwanda is also alleged to have shares in a company supplying Zambian mines in 2014. While these allegations have not been proven in court, it is prudent to have police investigate them. Nevertheless, when the allegations were revealed about Chikwanda’s involvement in these illicit contracts, the result was a witch-hunt that led to the dismissal of Kabimba. Sata acted against Kabimba to protect the corruption of one against that of the other corrupt. This makes the sacking of Kabimba to be an activity of the corrupt against the other corrupt. It is not a fight between good and evil but rather a fight between one set of evil against another set of evil.

President Sata must resign for the same reasons that he has fired Wynter Kabimba. The problem with Wynter is not his alone. President Sata himself created them. What is even more painful is that in firing Kabimba the president has not moved to change the corrupt system that breeds the Kabimbas of this world. The president has gone on to unilaterally choose a new Secretary-General in a way that is repugnant to democracy. Wynter has gone the same way that he came. Without changing the system, we have no guarantee that Edgar Lungu will do anything different from what Wynter did. President Sata has changed the personnel, but he has not changed the system that is responsible for breeding the mayhem. I cannot celebrate the dismissal of Wynter simply because, his replacement comes with the same platform and template that gives way for undemocratic tendencies. The firing of Wynter removes a person called Wynter but retains the same corrupt template in its place.

Sata should resign because, in neglecting to give reasons why he fired Wynter, he has created an avenue for gossip and wanton political recklessness. Under the Sata presidency, State House has been reduced to an orgy of gossip, misinformation and “chilande lande” with no one seeming to be in control. I am surprised that the President chose to fire Wynter through a press statement without caring to let the nation know reasons why he was fired in the first place. Wynter was the Chief Executive of the ruling party. He was a senior cabinet member. He has acted as President of our republic. Surely, for a person of such stature, the president owes a duty to explain to the nation why he decided to drop him. President Sata should not be running our country as if it is his own village or household. He needs to know that Zambians want to get answers from him. He needs to talk to us. He needs to answer questions from the press. He cannot just wake up one day, fire Wynter through a press statement and hibernate back into oblivion.

After the fall of Wynter several ruling party cadres are now claiming that life will be better for them. Some in Kaoma are even saying that it was Wynter that led to their poverty. GBM led a march in Kasama to celebrate the dismissal of Wynter and pledged unwavering support to President Michael Sata. What a reversal! Isn’t this the same gentleman who in 2013 claimed to have fallen out with Sata based not on Wynter but on Chitimukulu Kanyanta-Manga?

By the actions of the Patriotic Front cadres, it does seem as if Wynter was the President who made all the decisions. If indeed, even a portion of all these power-allegations against Wynter were true, then they are a damaging indictment against the judgment and leadership of President Sata. How is it that President Sata allowed an unelected Kabimba to have so much sway over what is constitutionally supposed to be done by a president? Surely, it cannot be Wynter’s problem alone. Could it be that the president is unfit to rule? From the Post editorials, it appears like they are willing to unleash the truth about the state of President Sata’s perceived “weaknesses and failings”. But Zambians of course know that there is something fundamentally problematic with the health and wellbeing of the President. Firing Wynter does not solve the problem of President Sata’s own inefficiency and unsuitability to hold office. Firing Wynter has not resolved any problem. That which is a problem with Sata cannot be resolved by firing a person other than Sata. Sata has failed Zambia, and Wynter was only a symptom of the wider failing of the leadership of Zambia’s fifth president.

President Sata should resign - Munshya

President Sata should resign – Munshya

 

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Suggested Citation: Munshya, Elias (2014). “Sacking Wynter Kabimba: Implications for Sata’s presidency”. Elias Munshya Blog (www.eliasmunshya.org) (1 September 2014)

 

 

Lewanika and Others v Chiluba (1998): The most significant court ruling in Zambia’s 50-year jurisprudence

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

 Zambia has seen no court case full of stuff only fit for reality TV than the case of Lewanika & Others v Chiluba (1998). Mention it. And you would most probably find it there. A president who seemed to have had no idea about the identity of his father. A picture that disappeared at night only to reappear days later on the desk of a government director, doctored. The case had allegations of illicit sex, secrets and added mysteries.

It all started in 1996 when President Frederick Jacob Titus Chiluba (FJT) and his MMD government bigwigs, Miyanda and Sata, hatched a clever plan to prevent Kenneth Kaunda (KK) from contesting the 1996 elections. I must note here that Miyanda denies such characterization. Nevertheless, their plan involved an amendment to the constitution to restrict the presidency only to those whose father and mother were “Zambian by birth or descent”. KK complained that this constitutional provision was unfair and was aimed at stopping him. Apparently, KK’s star was rising again after the 1991 bruising defeat. “Mu cipyu”, KK boycotted the elections and urged his UNIP party to do the same. The boycott came as Chiluba’s early Christmas present.

In pushing through this constitutional amendment, Chiluba invoked Kaunda’s deep-rooted nightmare: the fact that his parents were Nyasalanders. These are the same hitches that had dogged KK even before the founding of Zambia. It was a notoriously open secret that nearly everyone knew in Chinsali that KK’s father and mother were actually not natives of Chinsali. However, KK became an influential leader of the independence movement leading up to the liberation of Zambia. In spite of this history and suspicion, KK overcame this prejudice to lead Northern Rhodesia into an independent nation of Zambia. This year, Zambia celebrates its 50 years of independence. Before and after 1964, though, friends and enemies would use Kaunda’s Malawian heritage as a weapon of convenience when their positions became threatened. Certainly, even democrat Chiluba succumbed to this temptation to corner a founding figure of our republic.

Kenneth David Kaunda

Kenneth David Kaunda

What is mostly bizarre, however, about the 1996 story is the irony buried in it. Chiluba won the 1996 elections handily, delivering a blistering defeat to Mbikusita-Lewanika, Mung’omba and Chakomboka. And then all hell broke loose. Lewanika decided to challenge the election of Chiluba based on the same law that Chiluba had originally created to bar Kaunda. Lewanika and his colleagues challenged Chiluba on the basis that he could not be president since his father “was not a Zambian by birth or descent”. The bed of thorns Chiluba had weaved for Kaunda was now getting warm for him to sleep on it. Lewanika and his friends were not bluffing – Chiluba’s father was not a Zambian and as such, he could not possibly be president of Zambia.

When Chiluba came up with the 1996 amendment, he should have known that his own parentage was more questionable than Kaunda’s. But in keeping with common human weakness, FJT probably felt that he was safer than KK. Kaunda’s father was a famous evangelist well documented in history, but Chiluba’s father wasn’t. Chiluba wanted to use this as a way to cast suspicions on KK.

During the Lewanika v Chiluba trial it emerged that on his passport applications and affidavits before he became president, FJT swore that his father was a Jacob Titus Chiluba of Chief Lubunda in Mwense. However, when filing in his candidacy for the 1996 elections FJT declared that his father was a Mr. Jacob Titus Chiluba Nkonde of Lengwe Villange in Kawambwa. This was a serious discrepancy. Another colourful figure testified, at trial, to have been Chiluba’s biological father. Chabala Kafupi claimed to have had an illicit sexual relationship with FJT’s mother Mama Kaimba. It was from this affair that Chiluba and his twin brother were born at Chibambo Hospital in what is now called Congo DR. Other witnesses, in the same case, testified that Chiluba’s father was actually a Jim Zahare from Mozambique. In the proverbial dock was a president of Zambia, whose parentage was now under legal microscope. If Kaunda’s undoing was that his father was a Malawian, Chiluba’s own undoing was the fact that there were four possibilities of his father: Chabala Kafupi a Congolese, Jim Zahare a Mozambican, and the two others Chiluba had self-declared.

How would the judges make sense of all this? Well, judges do what judges want to do. They had to come up with a creative way to settle this. In explaining their reasoning, they delved into citizenship; Cecil Rhodes’ settling into Africa; British jurisprudence and then concluded Chiluba was validly elected regardless of whether his father was the Congolese Kafupi or the Mozambican Zahare.

In retrospect, the 1998 ruling absolved Kaunda. It meant that he could have successfully filed in his candidacy in 1996 even if his father were Malawian. The outcome of this case undermined Chiluba’s original motives for barring KK just as it bolstered Chiluba’s own presidency regardless of what Chabala Kafupi had testified. Most importantly, this ruling defined for Zambia, the meaning of citizenship denied to Zambians since 1964. This ruling added the new meaning to what it meant to be a citizen.

Frederick Jacob Titus CHILUBA

Frederick Jacob Titus CHILUBA

1998 was not the last time Zambia was to hear of the Lewanika v Chiluba case, however. Shortly after the Supreme Court had rendered its decision, two controversial gentlemen: Mushota and Katyoka decided to sue Kaunda claiming that he was “stateless” since he had not applied for Zambian citizenship. As if it could not get any bizarre, Ndola High Court Judge Chalendo Sakala agreed with Katyoka and declared Kenneth Kaunda “stateless.” When Kaunda’s lawyers appealed to the Supreme Court, one of the authorities they relied on was Lewanika and others v Chiluba. They claimed that the Supreme Court had already ruled on such matters: Kaunda was a bonafide citizen of Zambia regardless of the purported nationality of his father. Lawyers also relied on the Chiluba case to assert that citizenship was conferred to people like Kaunda who were ordinarily resident in Zambia on the eve of independence. Before the Supreme Court could rule, Katyoka conceded and decided not to go on with the court process delivering a victory to KK.

Akashambatwa Mbikusita-LEWANIKA

Akashambatwa Mbikusita-LEWANIKA

Sixteen years after Lewanika v Chiluba, we seem to be facing the same challenges. President Sata doesn’t trust his vice-president Guy Scott due to his Scottish heritage. In turn, Scott does not trust Sata’s son, Mayor Mulenga Sata, due to the Malawian origin of his mother. Scott has also stated that “zayelo” Given Lubinda is probably disqualified from the presidency. But if we are to resolve these problems, we have to look to Lewanika and others v Chiluba, and realize that Scott, Lubinda, Mulenga and others like them are bonafide Zambians who satisfy all the 1996 amendments regardless of the colour of their skins. It is this powerful truth that makes Lewanika v Chiluba the most influential ruling in the 50-year history of our jurisprudence.

Lewanika & Others v. Chiluba is the most significant court ruling in our 50 year jurisprudence in Zambia - Munshya

Lewanika & Others v. Chiluba is the most significant court ruling in our 50 year jurisprudence in Zambia – Munshya

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Suggested Citation: Munshya, Elias. (2014). “Lewanika and Others v Chiluba (1998): The most significant court ruling in the last 50 years” Elias Munshya Blog (www.eliasmunshya.org) 25 August 2014

Limps of hope: Hon. Chilangwa, stigma and hope for Zambians living with disabilities

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

There is no evidence to suggest that Nevers Mumba had, two weeks ago, approved of the action by MMD party cadres to sing lyrics mocking the disability of Hon. Nickson Chilangwa. In this article, I make no such allegation against Mumba. However, that unfortunate event provides us with an opportunity to address such issues. Chilangwa has lived with a slight physical disability since childhood. He limps in one of his legs. Mumba was addressing a political rally in Luapula Province when this happened. Chilangwa is a Member of Parliament and senior PF party leader in Luapula.

In responding to the cadres’ behaviour, Chilangwa expressed regret that Mumba could allow such terrible scorn at a political meeting. He also mentioned that he has learned to overcome stigma associated with his disability. This week, MMD Secretary Muhabi Lungu exonerated his boss, stating that Mumba is of such good character that he could not possibly have mocked a Zambian based on their disability. I believe him. However, the fact that a few rogue cadres could use Chilangwa’s disability as a mocking point deeply disturbs me. Our nation needs to move beyond stigma of the disabled. Zambia is one nation. In this nation we have people living with different challenges and yet they are all part of the tree that keeps the roots of our nation vibrant.

Academia refers to this kind of stigma as “Ableism”. According to Carmelita and others (2010) ableism is -

“an all-encompassing system of discrimination and exclusion of people who live with developmental, medical, neurological, physical, and psychological disabilities”.

Schwarzbaum & Thomas (2008) defined ableism as a “negative judgment about the characteristics and capabilities of an individual with a disability.” According to J. Mung’omba (2008), Zambia is home to over 256,000 people living with some form of a disability. About 5% of these live with mental disabilities.

Hon. Nickson Chilangwa, MP

Hon. Nickson Chilangwa, MP

Ableism could be attributed to our traditional worldview, which regards suffering in general and disability in particular as bad omens. Such suffering is usually blamed on the spiritual world. It is, therefore, not surprising that a Zambian would seek to “establish communication with the spirit world” to manipulate it in order to “bring security in a dangerous world” (Turaki 2006). Both Gray (1990) and Kunhiyop (2008) acknowledge that Africans’ conception of evil takes it as that which destroyed life, health, strength, fertility and prosperity. Suffering at both personal and community level was believed to be evil, and was mostly attributed to lack of adherence to taboos and rituals. It was believed across tribes that non-adherence to strict religious ritual would naturally invite the wrath of the gods and, therefore, cause untold suffering. The consequence of such a worldview translates into “ableism”. Unfortunately, each time a person living with a disability is mocked; we give credence to such ideas, which belong to a generation more barbaric than ours.

Ableism could also be attributed to scarcity of economic resources. Zambia has a population of 14 million living in an area of approximately 750,000 kms2. The gross domestic product of Zambia stands at $20 billion. Following the 3-years of gross economic mismanagement by President Sata and his crew, we could be talking of lower figures by next year. With so many people chasing so few resources it is clear that those living with disabilities become the casualties of this stampede for resources.

Zambians need to address some disturbing beliefs that perpetrate ableism. Some of these beliefs are a combination of tradition and plain nonsense. For example, albinos just on the basis of their skin disability are quite mistakenly considered to have some extra-spiritual powers. In neighbouring Tanzania, ritual killers, believing that albino body parts can be used to make someone rich, have murdered albinos. Even though this situation has not reached this level in Zambia, it is clear that there is a general stigma attached to albinos perpetrated by myths that don’t make sense.

"We will build Zambia together as one people, regardless of our physical abilities" - Munshya

“We will build Zambia together as one people, regardless of our physical abilities or disabilities” – Munshya

Hon. Chilangwa as a person living with a slight physical disability has done well for himself. He is a faithful member of the United Church of Zambia. He also runs successful businesses. He is living his great potential as a member of parliament. Nevertheless, our parliament should continue advocating for legal reform in this area. J. Mung’omba (2008) does cite the Persons with Disabilities Act (1996) as one of the most forward-looking legislation. However, we must not stop there, we should also work towards reforming laws such as Article 65 (1) (b) of the Constitution which disqualifies a candidate who is “under any law in force in Zambia, adjudged or otherwise declared to be of unsound mind”. While the constitution does not define “unsound mind”, this phrase could be used against some people faced with even mild mental illness.

The impact of ableism is obvious. Just like other forms of prejudice, ableism discriminates against citizens. It makes the majority feel that they are superior. It leads to all forms of unfair treatment of the “other”. Zambia is celebrating 50 years of political freedom. But what value is this political freedom if, 50 years after independence, we would still be mocking some among us simply because they do not share the same physical abilities as we do?

Ableism causes the nation to not use the full potential of its citizens. People who live with a disability are as gifted, in so many ways, as anybody else is. The consequence of discrimination is that the society would not benefit from their talents and abilities.

Ableism also leads to discrimination in education sector. In spite of poverty, most children in Zambia do get into grade one. However, many of these grade one spaces are designed for able-bodied students. In addition to the fact that there are no suitable facilities for use by the people living with disabilities, there are not enough spaces in schools that would be more geared towards teaching children living or born with disabilities (Nabuzoka & Rønning 1997). Failure in the special education sector means that young children are left without an education, critical to their service to the country. Once you add stigma to this mix, schoolyard bullying becomes even more lethal. We must end stigma against our people.

Chilangwa is 45 years old now. He is a senior leader of our country. He has overcome the stigma in many ways. Mocking him should not be justified in our society. He is an inspiration to all young people. If we are to build Zambia, we will build it together as one people, regardless of our physical abilities. It is one Zambia, many abilities!

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Suggested Citation: Munshya, Elias (2014), “Limps of hope: Hon. Chilangwa, stigma and hope for Zambians living with disabilities”, Elias Munshya blog  (8 August 2014) (www.eliasmunshya.org)

Assault on liberty: Why Immigration Zambia was wrong to raid churches

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

 The Zambian state has a legitimate interest in enforcing the law. The state is well within its powers to try and apply immigration laws. Those who are in our country illegally should be made to account for their abuse of the law. I do support the Zambian state in its desire to bring some sanity to our borders and ensure that those who visit Zambia do so in compliance with our statutes. However, in enforcing the law, it is important that the state acts fairly, proportionally and reasonably. Those who exercise power have a duty, both fiduciary and constitutional, to be sensible. A democratic state, like ours, that chooses to enforce laws must do so within constitutional boundaries. The state has an obligation to pay attention to the rule of law each time it conducts an operation of such magnitude as the one conducted by police and immigration this past weekend. Statutory powers should not be taken as a license for mischievousness on the part of those who wear state uniforms and carry machine guns.

Police and immigration officers went to two churches in Lusaka and conducted what they claimed was an operation aimed at arresting “illegal immigrants”. The two churches raided were having regular worship services on a Sunday. The first church is located in Chibolya and the other one is located in Kabwata. According to the Immigration Department spokesperson, they conducted this operation in churches because “churches are harbouring ‘illegal immigrants’”. Notwithstanding, their official duty as law enforcement agents, I find their action of raiding churches to not only be ridiculous but actually absolute nonsense. There is no justifiable reason why the immigration department should raid worship services in Lusaka on the pretext of arresting illegal immigrants. It does not make any sense. The action by police and immigration was excessive and lacked any constitutional justification.

This action by police is a violation of the freedom of worship. The fact that armed paramilitaries decided to enter sacred spaces of a people worshipping God is a serious assault on the liberties of our people. It is drivel to claim that the state can send soldiers to the churches just because those congregations have some illegal immigrants worshipping. There are other ways through which police and immigration could arrest illegal aliens. They could arrest them on the streets, in the markets and in many other places. Police could just go to Soweto Market and find numerous illegal Chinese aliens selling tomatoes, chickens and “chibwabwa”. However, police breaking into churches in order to commit this sacrilege is morally wrong.

President Michael Sata of Zambia

President Michael Sata of Zambia

It is telling that, police raided churches of the poor of Kabwata and Chibolya. From the names of these congregations, it does appear that they are independent churches. They do not belong to the mainline traditions. There have been insinuations by some Zambian government officials threatening to close these churches. The idea that smaller churches mushrooming in our compounds should be banned and closed, is itself a serious violation of the liberties that our people have to worship God in the churches they choose. I find it unacceptable for the state to use its power to order citizens which church they need to attend. We do not need government to tell us which church is better than the other. Government has no role whatsoever in adjudicating competing religious doctrine. It does appear that these armed officers chose these small churches simply because they could get away with it. They targeted the poor. There is no way they were going to enter a Roman Catholic parish and do what they did. I appeal to the PF government to guarantee liberties for our people. If indeed, there is any problem with some doctrines being taught in these new churches, it should not be the government’s role to decide for Zambians which doctrines they should embrace. The pretext that they are going to be closing churches and banning ministries belongs to the old and tired times more barbaric than ours. Kaunda effectuated an embargo on the registration of new churches. We all know the kind of government Kaunda led. It was a dictatorship whose philosophy has no place in our modern democracy. We refuse for the PF government to return this country to the days of “by air” militias.

If some of the members of these churches have committed a crime, please arrest them. You can arrest them in their homes, on the street, or at their work places. Please do not go and disrupt a church services and check NRCs of those in attendance. This is not the Zambia we expect.

Raiding churches is an assault on liberty - Munshya wa Munshya

Raiding churches is an assault on liberty – Munshya wa Munshya

Immigration action over the weekend will send chilling effects to church leaders. It will also arouse suspicion among church members. Pastors, elders, deacons and ushers in the churches should not be checking for passports before they receive new members. Pastors should not be immigration officers. The accusation that the church is harboring illegal immigrants is equally absurd. How can these two churches that in fact meet in rented community halls “harbor” illegal immigrants? Where do they harbor these immigrants? Is it on Sundays for 3 hours? How does having immigrants in church on Sunday, in a rented community hall, amount to harboring “illegal immigrants”? Police and Immigration should not be accusing the church of this serious crime, especially, not under these circumstances.

Churches in our country should continue to receive people in their services. Grace Ministries Mission International should continue breaking bread with all believers without the fear that soldiers will break-in to intimidate innocent worshippers. The pastors of Pentecostal Assemblies of God (Zambia) assemblies should not be asking members about their nationality or whether members have an NRC or not. The ushers of St. Paul’s or St. Peter’s churches should not have to check someone’s passport before they let them take Holy Communion at the altar. Equally, those churches in our compounds, mushrooming as they are, should have the liberty on Sundays to meet and dance with others without being suspicious of each other’s origins and nationality. There is already enough suspicion between Guy Scott and Mulenga Sata over the nationality of Mulenga’s mother. We refuse that the PF should spread this umulomo to the churches. In the church, we kneel and dance together as one people redeemed by Christ. If immigration officers want to arrest someone, they can do so, somewhere else, and not in the church.

I urge the so-called church mother bodies to stand up for religious liberty. She who assaults liberties of these small churches will one day also assault liberties of the so-called big churches. Injustice to the little among us should be regarded as injustice to all. It is in this respect that we should all condemn the action of the police and immigration officers.

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Suggested citation: Munshya, E., ‘Assault on liberty: Why Immigration Zambia was wrong to raid churches Elias Munshya Blog (August 1, 2014) (available at http://www.eliasmunshya.org)